IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 15.04.2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.No.9621 of 2007 and M.P.No.1 of 2007 Ravi @ S.Ravichandran .. Petitioner(19th Accused) Vs State by Inspector of Police, B2, Vishnu Kanchi Police Station, Little Kancheepuram, Kancheepuram District. .. Respondent(Complainant) Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to call for the records in PRC No.4 of 2007 on the file of the learned Judicial Magistrate I, Kancheepuram and to quash the same. For Petitioner : Mr.B.Kumar Senior counsel for M/s.R.Krishnan For Respondent : Mr.J.C.Durairaj Government Advocate (Crl.Side) ***** O R D E R The petitioner, who is the 19th accused in case pending in PRC No. No.4 of 2007 on the file of the learned Judicial Magistrate I, Kancheepuram seeks quash of proceedings as against him. 2.Such case was registered as Crime No.754 of 2006 on the file of the respondent police. Such is a case alleging offences under Sections 147, 148, 341, 353, 430 and 3(1) of the Tamil Nadu Public Property (Prevention of Loss and Damage) against 19 persons, who, on the night of 03.12.2006 broke the pipeline leading to the over head tank of the Kancheepuram bus stand and effected connections to residential houses. When the officials went to the place to set right the damage, the accused threatened them against doing so and were insistent that the connections effected should be allowed to https://hcservices.ecourts.gov.in/hcservices/ stand. The accused indulged in wrongful action and threatened that they would cause damage to the entire water distribution system. 3.Mr.B.Kumar, the learned Senior counsel appearing for the petitioner submits that this petitioner, who, is an employee engaged as meter reader for over 20 years of the Kancheepuram municipality had not been named in the FIR. The petitioner informs of several hardships caused to him by the Commissioner of Municipal Administration Department by way of effecting transfers and by causing hindrances when the petitioner attempted to report for duty pursuant to the orders of this Court. Informing that the above, gave rise to ill feelings against the petitioner, as a result of which the complainant has subsequently sought to implicate him in the commission of offence, the learned Senior counsel would list the facts which would spell out malafides as follows: (i)Originally there were 18 accused in the case. The complainant's statement had been recorded under Section 161 Cr.P.C. on 04.12.2006, wherein the petitioner had not been implicated. (ii)The petitioner was arrested on 03.03.2007 and remanded to custody on the same day. The charge sheet presently before the Court had been filed on 06.03.2007. Despite such position, when this petitioner moved an application for bail, before the learned Principal Sessions Judge, Chengalpattu, it was represented before such Court on 12.03.2007 that investigation was not completed, towards defeating this petitioner's bail petition. This representation was again made on behalf of the respondent on 16.03.2007, when the bail application filed by the petitioner in Crl.O.P.No.7203 of 2007 came up for consideration before this Court. (iii)A charge sheet which had been approved by the Assistant Public Prosecutor on 29.01.2007 had been filed before the learned Judicial Magistrate, Kancheepuram and therein, the petitioner did not figure as an accused. In fact, the petitioner applied for a copy thereof and the lower Court refused to issue the same not for the reason that the same had not been filed in Court but for the reason that the same was not one of the documents mentioned under Section 207 Cr.P.C. List witnesses 13 and 14 did not figure in the original charge sheet but had been subsequently added and their statements recorded only towards falsely implicating the petitioner. The lower Court records have been called for by this Court. A perusal of the charge sheet which bears the date 28.01.2007 clearly reveals that the inclusion of the 19th accused, i.e., the petitioner herein is by a different pen. This is apparent even to the naked eye and on comparison of the writings relating to the other 18 accused and this petitioner. A further instance of malafide is the allegation in the charge sheet dated 06.03.2007 that the petitioner was absconding, while in fact, the same https://hcservices.ecourts.gov.in/hcservices/ investigating officer had caused his arrest and remand on 03.03.2007. (iv)owing to the repeated malafides of the complainant, the petitioner had suffered hardships in his hands, but persistently had waged a battle against the wrongs meted out to him and come out successful. The transfer order of the petitioner dated 05.08.2006 from the Kancheepuram Municipality to the Villupuram Municipality was set aside under orders of this Court in W.A.No.1543 of 2007 dated 11.01.2008. 4.The learned Senior counsel places reliance on the often cited judgment of the Honourable Apex Court in State of Haryana and others v. Bhajanlal and others 1992 Supp (1) Supreme Court Cases 335 and submits that 'category 7' of the illustrative list enumerated in such decision would apply in the instant case. The same reads as follows: "(7) Where a criminal proceeding is manifestly attended with malafide 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." It also was submitted by the learned Senior counsel that there cannot be two 173(2) Cr.P.C. reports in a case and the taking of cognizance on the subsequent report dated 06.03.2007 would be an erroneous exercise. 5.I have heard the learned Government Advocate (Crl.Side) on the submissions made by the learned Senior counsel. 6.Learned Government Advocate (Crl.Side) would submit that though the charge sheet bears the date 28.01.2007, the same had been filed in the Court only on 06.03.2007. The copy application moved on behalf of the petitioner had been rejected since the petitioner had sought a copy of the draft charge sheet and such was not a document which could be issued to him. It was not correct to state that only LW-13 and 14 implicated the petitioner. The complainant in his additional statement under Section 161 Cr.P.C. dated 05.12.2006 had implicated the petitioner. In fact, it was the petitioner, who, as an employee of the Municipality was well acquainted with water line connections and who had facilitated commission of the offence. The allegations of malice made on the basis of wrong representations in the earlier bail proceedings and in filing the charge sheet would merely be owing to mistake. This was not a fit case to quash proceedings against the petitioner at the initial stage and the petitioner would have to prove his innocence at the trial. https://hcservices.ecourts.gov.in/hcservices/ 7.Consideration: That all is not well between the complainant and this petitioner is clear. Of course, the other proceedings relating to the transfer of the petitioner may well be due to administrative or other reasons. However, they have been found to be bad in law by this Court. The question that arises for consideration is whether, given the background, the allegations of malice against the petitioner now pleaded, seem justified or not. The petitioner is a person well known to the complainant since he is none other than an employee of the municipality. The offences are alleged to have taken place when the personnel of municipality went to set right the damage caused. Such personnel also would know the petitioner. While so, the fact that the original complaint did not mention the name of the petitioner, gives rise to some doubt about his involvement. The charge sheet is dated 28.01.2007 and has been approved by the concerned Assistant Public Prosecutor on 29.01.2007. The same has been submitted into Court, as per the seal of the lower Court, on 06.03.2007. The statements of all the witnesses reached the Court only on such date. Though, the contention of the learned Senior counsel that an earlier charge sheet had been filed in the case do not find support from the records, it is seen that the printed form of charge sheet under No.A03644774 clearly reflects the position that this petitioner has been included as the 19th accused. The difference in ink as regards the first 18 accused and this petitioner as 19th accused, is clearly discernible. 8.In the above circumstances, this Court is inclined to agree with the learned Senior counsel that the decision of the Honourable Apex Court in State of Haryana and others v. Bhajanlal and others 1992 Supp (1) Supreme Court Cases 335 to the effect that the prosecution of this petitioner is an action in malice would have to be accepted. 9.Accordingly, the Criminal Original Petition is allowed. The proceedings in PRC No.4 of 2007 on the file of the learned Judicial Magistrate I, Kancheepuram shall stand quashed in so far as this petitioner is concerned. Consequently, the connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ gm To 1.The Judicial Magistrate I, Kancheepuram 2.-Do-Thro The Chief Judicial Magistrate, Kancheepuram. 3.The Inspector of Police, B2, Vishnu Kanchi Police Station, Little Kancheepuram, Kancheepuram District. 4.The Public Prosecutor, High Court, Madras. 2 ccs To Mr.R.Krishnan, Advocate, SR.24849 Crl.O.P.No.9621 of 2007 and M.P.No.1 of 2007 JRG(CO) sra 28/04/2010 https://hcservices.ecourts.gov.in/hcservices/