This Criminal Original Petition is filed to quash the criminal proceedings in PRC.No.30/2005 on the file of the learned Judicial Magistrate, Bhavani.
2. The petitioners are arrayed as A1 to A3 for the alleged offences under Section 3(1)(iv)&(v) of Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 herein after referred to as the Act) and
Sections 341 and
451 of IPC. The 1st petitioner is the father of the petitioners 2 and 3.
3. The father of the respondent by name Kali was a member of the Anthiyur Land Colonization Cooperative Society Limited, Anthiyur, Erode District and by the proceedings No.1916/66 dated 8.2.1966 and he was allotted the lands measuring an extent of 3.86 acres in SF.No.1075 and 1.35 Acres in SF.No.1974/1 of Anthiyur Village corresponding to RS.No.627. The allottee was in possession and enjoyment of the property and after the death of the original allottee, his son the respondent herein executed a registered sale deed dated 7.6.1967 in the name of the 1st petitioner's mother-in-law Guruvayammal, wife of Palani gounder. The said document was duly registered as Document No.1288/1967 on the file of the Sub Registrar, Anthiyur in respect of the property measuring an extent of 3.86 Acres in SF.No.1075.
4. Right from the year 1967, the petitioners are said to be in exclusive possession and enjoyment of the property for the past 45 years and they are said to have invested a huge amount for levelling the land and to make it fit for cultivation of various crops. Subsequently, on 3.7.1973, the respondent had executed a registered mortgage deed in the name of the 1st petitioner and the possession of the property was continued to be with the petitioners for the past four decades. Therefore, the petitioners are said to be in possession of an extent of 3.86 acres and the remaining extent of 1.35 acres in SF.No.1074/1 was with the respondent.
5. According to the petitioners, in the year 1980, the respondent orally sold an extent of 1.35 acres in SF.No.1074/1 to one Venkidusamy, son of Angappa Devar, who in turn sold the property to one Marasamy, son of Muthan in the year 1990. Later, the said Marasamy executed a sale deed in favour of one Raju Vathiyar in the year 1997 and after his death his wife by name Rajammal is in possession of an extent of 1.35 acres. It appears that the said Rajammal had leased out the said property to one Sakthivel, son of Mani. Therefore, at present, the lessee Sakthivel is in possession and enjoyment of the property measuring an extent of 1.35 acres in S.No.1074/1 and he is living with his family in the suit property.
6. The petitioners submit that without disclosing the above said facts, the respondent filed the suit in OS.No.592/1991 on the file of the District Munsif, Bhavani for the relief of bare injunction and the same was allowed to be dismissed for default. Further, suppressing the entire material facts, the respondent filed a claim petition before the Deputy Registrar of Cooperative Societies, Gopichettipalayam on 24.1.2001, praying for recovery of possession and permanent injunction. According to the petitioners, the Deputy Registrar of Cooperative Societies had no jurisdiction to entertain the said claim petition filed under Section 90 of the Tamil Nadu Cooperative Societies Act, but proceeded with the claim petition in ARC.No.117/2000-2001 and without sufficient service of notice to the petitioners, they were set exparte and an award came to have been passed on 2.5.2001.
7. The petitioners further submit that they have not been served with the copy of the award as contemplated under Rule 107 (8)(c) of the Tamil Nadu Cooperative Societies Rules, 1988. However, the fact remains that the petitioners are in possession of 3.86 acres in SF.No.1075, but the award had been passed in respect of the entire extent of 5.21 acres comprised in SF.No.1074/1 and 1075. While the facts are as such, without disclosing the above facts, the respondent had filed the private complaint under
Section 200 of Code of Criminal Procedure in CMP.No.4619/2005 before the learned Judicial Magistrate, Bhavani against the petitioners for commission of offences under Section 3(1)(iv)&(v) of the Act and
Sections 341 and
451 of IPC. The petitioners would contend that the learned Magistrate without considering the nature of the allegations and the litigation pending between the parties before different forum had erroneously taken cognizance of the complaint and issued summons for their appearance, which is challenged in this Criminal Original Petition.
8. On a perusal of the complaint, it is seen that the respondent has alleged that despite the award passed by the Deputy Registrar of Cooperative Societies against the petitioners in respect of the entire extent of 5.21 Acres in S.No.1075/1 and 1075 by order dated 2.5.2001 directing the petitioners to hand over possession to the respondent, they failed to do so and further on 21.4.2005 at 1.00 a.m. when the respondent asked the petitioners to vacate the land, they attempted to assault him with a stone and chased him and therefore, he lodged the complaint with the Anthiyur Police, but as no case was registered, he has filed the impugned private complaint beofe the learned Magistrate.
9. On a reading of Section 3(1)(iv)&(v) of the Act, it shows that there has to be actual dispossession from the land or premises belonging to the members of categories of Schedule Castes or Scheduled Tribes or interference with the enjoyment. Unless this part of section is made out, there cannot be any prosecution for commission of the said offence much less conviction. Thus the prerequisite condition is either dispossession or interference with the enjoyment of his rights over any land, premises or water.
10. The petitioners have submitted materials and evidence in the form of legal documents to show that they are in exclusive possession and enjoyment of the property i.e. 3.86 cents as early as from 1967 for more than 45 years and the respondent has suppressed the material facts before the Deputy Registrar of Cooperative Societies and an award came to be passed without affording an opportunity to the petitioners to put forth all the above said facts. In fact, the petitioners have challenged the award by filing a writ petition in WP.No.4460/2006 and in WPMP.No.4780/2006, this court by order dated 17.2.2006 granted an order of status-quo. Prior to the complaint, the respondent has filed the suit in OS.NO.592/1991 on the file of the District Munsif, Bhavani against the petitioners for bare injunction and the same was allowed to be dismissed for default.
11. Even as per the allegations made in the complaint, it is stated that the respondent went to the property, which was in occupation of the petitioners and asked them to vacate, but they refused. It is not his case that he was in occupation at any point of time and was either dispossessed or his possession was interfered with by the petitioners.
12. Mr.N.Manokaran, the learned counsel for the petitioners would submit that the allegations made by the complainant in the complaint filed do not disclose an offence as alleged in the complaint either under the provisions of IPC or the SC/ST (PA) Act and therefore, the learned Magistrate was not correct in taking cognizance of the complaint filed against the petitioners.
13. Per contra, Mrs.L.Srileka, the learned counsel for the respondent would contend that the learned Magistrate was convinced that the complaint and the materials produced annexed with the complaint disclosed cognizable offences under IPC and SC/ST (PA) Act and issued summons and therefore, there is no error in the order passed by the learned Magistrate.
14. It is no doubt true that if the allegations taken as such prima facie showed commission of an offence, then the same cannot be quashed by exercising jurisdiction under
Section 482 of Code of Criminal Procedure. In the present case, the question is not whether there was any truth made in the allegations made, but the question is as to whether on the basis of the allegations the cognizable offence or offences had been alleged to have been committed by the petitioners.
15. In the case of State of Haryana Vs. Bhajan Lal and others [1992-SCC-Cri-426], the Honourable Supreme Court categorised the cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of court or otherwise to secure the ends of justice and the 7th illustration highlighted in the said case applies to the facts of this case and the 7th illustration reads thus:-
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.
16. In the present case, the factual position as highlighted above clearly goes to show that the respondent had not come to the court with clean hands. He had suppressed the entire facts before the Deputy Registrar of Cooperative Societies and an award had come to have been passed. It is important to note that no opportunity had been given to the petitioners to put forth their explanation regarding their possession and exclusive occupation of the property for more than 45 years.
17. In exceptional circumstances, this court can look into those documents which are relevant and unimpeachable and it could be legally translated into reliable evidence as laid down by the Honourable Supreme Court in the decision rendered in the case of Minakshi Bala Vs. Sudhir Kumar and others [1994-4-SCC-142].
18. In the present case, in order to serve ends of justice, it is permissible to look into the materials submitted by the petitioners to assess whether any offence is made out. The authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse.
19. In the case of R.P.Kapur Vs. State of Punjab [AIR-1960-SC-866], the Honourable Supreme Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings viz:-
(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. Want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged
(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
20. It is held by the Honourable Supreme Court that the court should be circumspect and judicious in exercising its discretion and should take all relevant ARUNA JAGADEESAN, J.
Srcm facts and circumstances into consideration before issuing process, lest it would be a instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly.
21. In the present case, the respondent has abused the process of court by filing the complaint vexatiously without disclosing the material facts and the criminal proceedings is manifestly attended with mala fide and therefore, it warrants interference by this court under
Section 482 of Code of Criminal Procedure.
22. For the aforesaid reasons, the impugned complaint and consequential criminal proceedings are liable to be quashed and accordingly, it is quashed and this Criminal Original Petition is allowed. Consequently, the connected MP is closed.
Srcm To:
The Public Prosecutor, High Court, Madras