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Madras High CourtCRL OP(MD)/15058/2024dismissed

Boomithasan v. The State Of Tamilnadu

2024-09-10Honourable Mr Justice K.Murali Shankar10 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.09.2024

CORAM

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR and Crl.M.P.(MD)Nos.9431 and 9432 of 2024 Boomithasan ... Petitioner Vs.

1.The Inspector of Police, Paramakudi Town Police Station, Ramanathapuram District.

(Crime No.138 of 2017) 2.R.Murugesan ... Respondents PRAYER : Criminal Original Petition filed under Section 528 B.N.S.S., to call for the records pertaining to the case in S.T.C.No.2413 of 2019 on the file of Judicial Magistrate, Paramakudi and quash the same as against the petitioner.

For Petitioner : Mr.M.Ramakrishnan For R1 : Mr.E.Antony Sahaya Prabahar Additional Public Prosecutor 1/10

ORDER

The Criminal Original Petition has been filed, invoking Section 528 B.N.S.S., seeking orders to quash the charge sheet in S.T.C.No.2413 of 2019 pending on the file of the Judicial Magistrate, Paramakudi.

2. The petitioner is the second accused in S.T.C.No.2413 of 2019 pending on the file of the Judicial Magistrate, Paramakudi.

3. The case of the prosecution is that on 27.02.2017 at about 09.45 a.m., the petitioner along with other accused waylaid the second respondent and restrained him and attacked him and also caused simple injury.

4. On the basis of the complaint lodged by the second respondent, FIR came to be registered in Crime No.138 of 2017 against six known persons and 10 unknown persons and after completing the investigation, charge sheet came to be filed for the offences under Sections 147, 341 and 323 IPC and the case was taken on file in S.T.C.No.2413 of 2019 against five persons including the petitioner and the same is pending on 2/10

the file of the Judicial Magistrate, Paramakudi.

5. The learned counsel appearing for the petitioner would submit that there are bald and vague allegations levelled against the petitioner in the FIR as well as the in the charge sheet, that though FIR came to be registered against 16 persons, charge sheet came to be filed only against 5 persons, that there was a previous enmity between the second respondent and the villagers of Vadavaneri village and on that basis, the second respondent, retired VAO has given the false complaint and that though the second respondent has alleged that he was assaulted, there is no material to substantiate the same.

6. As rightly contended by the learned Additional Public Prosecutor appearing for the first respondent, the above aspects, by no stretch of imagination, can be taken as grounds to quash the charge sheet. The pleas now raised by the petitioner are matter for trial and the same cannot be gone into in the present quash proceedings.

7. The Hon'ble Supreme Court in the case of State of Haryana 3/10

and others Vs. Bhajan Lal and others reported in 1992 SCC (Cri) 426 has enumerated 7 categories of cases, where the power can be exercised under Section 482 of Code of Criminal Procedure and the same are extracted hereunder:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; 4/10

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(6) where there is an express legal bar engrafted in any of the provisions of the Code or the 5/10

concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

8. In Dr.Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra and others reported in 2019 (18) SCC 191, the Hon'ble Apex Court has specifically held that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is settled law that the inherent jurisdiction under Section 482 Cr.P.C. is wide but at the same time, the same is to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. 6/10

9. The Hon'ble Supreme Court in Kaptan Singh Vs. The State of Uttar Pradesh and others reported in 2021 (3) Crimes 247 has stated that, that Court in catena of decisions has observed that the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial and that question is required to be examined keeping in view, the contents of FIR and prima facie materials, if any, requiring no proof and at such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and materials relied on.

10. A cursory perusal of the final report and the statements filed along with the final report would make it clear that there existed a prima facie case to proceed against the petitioner.

11. Considering the above and also taking note of the fact that this is not a fit case to quash the charge sheet against the petitioner, this Court is not inclined to grant the relief claimed.

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12. Considering the age of the petitioner, the personal appearance of the petitioner before the trial Court is ordered to be dispensed with, on conditions that he shall appear at the time of initial questioning, proceedings under Section 313 of Cr.P.C., and at the time of passing judgment and on all the hearings, specifically directed by the trial court. The petitioner is further directed to give an undertaking in the form of affidavit that he will be duly represented by a counsel on all hearing dates and that the counsel representing him will cross examine the prosecution witnesses on the same day they are examined in chief. The petitioner shall not dispute the identity of the witnesses. The petitioner shall appear before the Court in the event his presence is insisted by the trial judge for the purpose of identification.

If the petitioner adopts any dilatorial tactics, it is open to the Trial Court to insist for his appearance and deal with the petitioner in accordance with the judgment of Supreme Court of India, in State of Uttar Pradesh Vs. Shambunath Singh, reported in 2001 (4) SCC 667.

13. In the result, this Criminal Original Petition stands dismissed. Consequently, connected Miscellaneous Petition in Crl.M.P.(MD)No. 8/10

9431 of 2024 is closed.

10.09.2024 NCC : Yes / No Index : Yes / No Internet : Yes / No csm To 1.The Judicial Magistrate, Paramakudi.

2.The Inspector of Police, Paramakudi Town Police Station, Ramanathapuram District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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K.MURALI SHANKAR,J.

csm Order made in and Crl.M.P.(MD)Nos.9431 and 9432 of 2024 Dated: 10.09.2024 10/10