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2022 DIGILAW 3230 (MAD)

Nesaiyan v. Sub Inspector of Police, Kanyakumari

2022-09-09

K.MURALI SHANKAR

body2022
JUDGMENT (Prayer: Criminal Original Petition has been filed under Section 482 Cr.P.C, to call for the records pertaining to the charge sheet in C.C.No.200 of 2015, on the file of the Judicial Magistrate Court No.I, Kuzhithurai, Kanyakumari District and quash the same.) 1.This Criminal Original Petition has been filed, invoking Section 482 Cr.P.C., seeking orders to call for the records pertaining to the case in C.C.No. 200 of 2015, pending on the file of the Judicial Magistrate No.I, Kuzhithurai and quash the same. 2. The petitioners are the accused 1 to 4 in C.C.No.200 of 2015, on the file of the Court of Judicial Magistrate No.I, Kuzhithurai. On the basis of the complaint lodged by the second respondent, F.I.R., came to be registered in Cr.No.15 of 2015, dated 15.01.2015 against the petitioners herein for the offences under Sections 294(b), 324 and 506(ii) I.P.C. The first respondent, after completing the investigation, has laid the final report under Section 173 Cr.P.C., dated 13.03.2015 against the petitioners for the alleged offences under Sections 294(b), 324 and 506(ii) I.P.C., and the case was taken on file in C.C.No.200 of 2015 and the same is pending on the file of the Judicial Magistrate Court No.I, Kuzhithurai. 3. Admittedly, the second respondent/defacto complainant is the wife of the fourth petitioner/fourth accused, that the first petitioner/first accused is the brother of the fourth petitioner/fourth accused, that the third petitioner/third accused is the wife and the second petitioner/second accused is the son of the first petitioner/first accused. The case of the prosecution is that the defacto complainant has been demanding for a pathway to reach her house for the past ten years from the petitioners, that the second respondent went to give a complaint before the Revenue Divisional Officer and since the Revenue Divisional Officer was not in office, she returned, that the petitioners, on coming to know about the same, on 14.01.2015 at 11.30a.m., had abused the defacto complainant in filthy language, attacked her with rod and caused simple injuries and that all the accused by showing the rod, had caused criminal intimidation. 4. 4. It is not in dispute that for the occurrence alleged to have held at 11.00hours on 14.01.2015, on the basis of the complaint lodged by the fourth petitioner/fourth accused, F.I.R. came to be registered in Cr.No.16 of 2015, dated 15.01.2015 against the second respondent/defacto complainant and one Christhudoss, brother of the fourth petitioner for the offences under Sections 324, 323 and 506(ii) I.P.C.. It is also not in dispute that the first respondent, after completing the investigation, has filed the final report, referring the case as mistake of fact, that the fourth petitioner has then filed a private complaint under Section 200 Cr.P.C. against the second respondent, Christhudoss and the Sub- Inspector of Police of the concerned station for the offences under Sections 427, 447, 323, 324, 506(ii), 294(b) and 188 I.P.C., and that the learned Judicial Magistrate, after conducting enquiry under Section 202 Cr.P.C., has taken cognizance of the case in C.C.No.38 of 2017 and the same is pending on the file of the very same Court of Judicial Magistrate No.I, Kuzhithurai. 5. The case of the fourth accused in Crl.No.16 of 2015 (C.C.No.38 of 2017) is that on 14.01.2015 at about 11.00a.m., the accused therein had trespassed into the land of the fourth petitioner situated in S.No.276/6F and formed a pathway, that when the same was questioned by the fourth petitioner, the first accused had attacked the fourth petitioner with cutting knife on his ears, that the second accused had attacked with a stick on his right knee, that all the accused had attacked him with hands and stick and also kicked again and again and that they have caused criminal intimidation. 6. 6. It is the further case of the fourth petitioner that after suffering injuries, he was admitted in Government Hospital, Kuzhithurai and on intimation from the said Hospital, the first respondent came to the hospital and recorded the statement of the fourth petitioner and on that basis, F.I.R. in Cr.No.16 of 2015 came to be registered, that the second respondent by using her influence made a false complaint against the petitioner with cooked up story and gave a counter complaint which was registered by the first respondent in Cr.No.15 of 2015, that the first respondent, at the instance of the second respondent and her political and other influence, has completed the investigation in a hurried and biased manner and filed charge sheet in Cr.No.15 of 2015 and the same was taken on file in C.C.No.200 of 2015, that though there is a prima facie case made out against the second respondent and another in case registered in Cr.No.16 of 2015, the same was referred as mistake of fact and that thereafter, the fourth petitioner was constrained to lodge a private complaint against the said two persons and also the Sub-Inspector of Police who acted in a biased and illegal manner and also threatened the fourth petitioner and the same was taken on file in C.C.No.38 of 2017. 7. The learned Counsel for the petitioners would submit that the case in Cr.No.15 of 2015 is a false one with a cooked up story and the investigation suffers with serious infirmities and illegalities, that the petitioners are innocents and they have not committed any offence as alleged, that there are vast contradictions in the F.I.R., and the statement of witnesses filed along with the charge sheet, that the present case is a counter blast case to the case in Cr.No.16 of 2015 to wreak vengeance upon the petitioners, that the petitioners 1 to 3 who are brother, brother's wife and brother's son of the fourth petitioner have been falsely implicated as they have helped the fourth petitioner while he was in hospital, that the second petitioner who is the son of the first petitioner is a Diploma holder in Electrical and Electronics Engineering and is working at Chennai in a Private Company and only to harass the petitioners and spoil the career of the second petitioner and his future, he has also been roped into the above case. 8. 8. The learned Counsel for the petitioners would further submit that the petitioners were put to much mental agony, because it is a case with cook up story in order to threat the petitioners to withdraw the case in Cr.No.16 of 2015, that there are no materials to show about the real threat and the complaint is so bald and vague and that the proceeding in C.C.No.200 of 2015 is allowed to proceed, the same would amount to abuse of process of law. 9. It is not in dispute that the second respondent and her daughter have filed a civil suit claiming maintenance in O.S.No.63 of 2010 against the fourth petitioner/fourth accused and the same was pending on the file of the Subordinate Court, Kuzhithurai and that subsequently, the suit was decreed granting maintenance amount to both of them. It is also not in dispute that the fourth petitioner has also filed a suit against the said Christhudoss and Anjel Priya in O.S.No.541 of 2010 for fixing the boundaries on a particular property shown in the partition deed and the said Anjel Priya has filed another suit in O.S.No.4 of 2011 against the fourth petitioner/fourth accused for partition and after joint trial, a common judgment was pronounced on 01.04.2016 decreeing the suit in O.S.No.541 of 2010 and dismissing the suit in O.S.No.4 of 2011. 10. It is also not in dispute that the said Christhudoss and Anjel Priya have filed another suit in O.S.No.139 of 2015 against the petitioners herein for declaration of easementary right by grant over the suit schedule pathway and for permanent injunction and the learned Principal District Munsif, Ambasamudram, after trial, dismissed the suit. Considering the above, it is clearly evident that there existed serious disputes between the fourth petitioner and the second respondent and that they are not only having matrimonial dispute, but also having property disputes including the pathway dispute. 11. As rightly contended by the learned Counsel for the petitioners, the second respondent in her complaint lodged to the first respondent, has alleged that after returning from the office of the Revenue Divisional Officer, the petitioners/accused came to her house at about 11.30a.m. On 14.01.2015 and attempted to kill her and attacked her with wooden log and rod and that when the child which was with the second respondent had started crying, the accused ran away from that place. It is pertinent to note that, as rightly pointed out by the learned Counsel for the petitioners, the second respondent has nowhere whispered in her complaint that the accused had abused her in filthy language and all of them had attacked her and caused injuries and that all the accused by showing the rod had caused criminal intimidation. But in the charge sheet, they have added the other averments as if the accused had abused the second respondent in filthy language, attacked her with rod and caused criminal injuries and that by showing the rod, had caused criminal intimidation. 12. As rightly pointed out by the learned Counsel for the petitioners, the second respondent has taken a stand in her complaint that the alleged incident was occurred while she was in her home, but in the statement recorded under Section 161(3) Cr.P.C., she has stated that the incident was occurred at rubber gardens of the fourth petitioner, but the other two witnesses alleged to be the occurrence witnesses have stated that while standing in front of the second respondent's house, they had seen the occurrence. 13. Regarding the offence under Section 294(b) I.P.C., according to the prosecution, the petitioner had abused the defacto complainant in filthy language. The Kerala High Court in Latheef Vs. State of Kerala reported in 2014 (2) KLT 987 relying on the earlier judgements of Kerala High Court has held that abusive words or humiliating words or defamatory words will not as such amount to obscenity as envisaged in Section 292 and 294 (b) IPC and to make it punishable under Section 294(b) of IPC, the alleged words must be in a sense lascivious, or it must be appeal to the prurient interest, or will deprave or corrupt persons. 14. In the case on hand as already pointed out, in the charge sheet it has been stated that all the accused had abused the second respondent in filth language, but those words does not find place in the F.I.R. 15. Regarding the offence under Section 506 I.P.C, there is nothing on record to show that the complainant was criminally intimidated. Moreover, it is necessary to show that the threat held by the accused is real and substantial. It is necessary to refer the judgment of this Court reported in (1988) L.W.(Crl.)178 ( Noble Mohandass V. State) and the relevant paragraph is extracted hereunder: “7. Moreover, it is necessary to show that the threat held by the accused is real and substantial. It is necessary to refer the judgment of this Court reported in (1988) L.W.(Crl.)178 ( Noble Mohandass V. State) and the relevant paragraph is extracted hereunder: “7. As far as the offence under Section 506(2) is concerned, the learned counsel for the revision petitioner contended that the threat was not a real one, that it was of the kind of words which are currently and frequently used by people when they are angry and that further the threat was not spoken to by P.W. 3 and P.W. 4 who by that time had already come to the scene of occurrence. It is, in fact, found from the records that the threat would have been lashed out after P.Ws. 3 and 4 came to the place and separated both the husband and wife. Therefore, the evidence of P.W. 1 should have been corroborated by the evidence of P.W. 3 and P.W. 4 who were necessary witnesses to the occurrence. Since they did not corroborate the testimony of P.W. 1 in this aspect, the offence cannot be held to be proved. Further for being an offence under Section 506(2) which is rather an important offence punishable with imprisonment which may extend to seven years, the threat should be a real one and not just a mere word when the person uttering it does exactly mean what he says and also when the person at whom threat is launched does not feel threatened actually. In fact P.W. 1 when she filed the complaint to the police officer, did not express any fear for her life nor asked for any protection. Therefore, the offence under S. 506(2) is not made out.” 16. Considering the above and other materials now available, it is clearly evident that the occurrence canvassed by the second respondent appears to be doubtful and the same has been lodged only as counter blast to the case registered at the instance of the fourth petitioner. The first respondent, after registering the two complaints, has chosen to file the charge sheet in Cr.No.15 of 2015 and final report by referring the case as mistake of fact in Cr.No.16 of 2015. No doubt, both parties have not produced the copy of the final report filed in Cr.No.16 of 2015. The first respondent, after registering the two complaints, has chosen to file the charge sheet in Cr.No.15 of 2015 and final report by referring the case as mistake of fact in Cr.No.16 of 2015. No doubt, both parties have not produced the copy of the final report filed in Cr.No.16 of 2015. But as already pointed out, the fourth petitioner has filed a private complaint and after conducting the necessary enquiry, the learned Magistrate has taken cognizance of the case against the second respondent and others, which includes the Sub-Inspector of Police, who investigated both the cases. 17. Considering the above, this Court is of the clear view that permitting the prosecution to proceed against the petitioners is not only unwarranted, but the same would amount to abuse of process of law. Hence, this Court concludes that the proceeding in C.C.No.200 of 2015 is liable to be quashed as against the petitioners 18. In the result, this Criminal Original Petition is allowed and the proceedings in C.C.No.200 of 2015, on the file of the Judicial Magistrate Court No.I, Kuzhithurai is hereby quashed as against the petitioners Consequently, connected miscellaneous petition is closed.