IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.09.2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.No.2384 of 2010 and M.P.No.1 of 2010 1. H. Thiyagaragan 2. Bheema Gowder 3. Ranga Gowder 4. Bellu @ Ravichandran 5. Koora Ajjan 6. Kalla Jogee 7. S.M. Sakkarai 8. M.Kannan 9. Bhojan 10.M. Aandy 11.Hiriyan 12.Lakshmanan .. Petitioners/ Accused 1 - 12 Vs 1. State rep. by Inspector of Police Kotagiri P.S. The Nilgiris District. .. Respondent/ Complainant (Cr.No.215/09) 2. Mary Ammal .. 2nd Respondent/ Defacto Complainant (Impleaded as 2nd respondent as per order dated 4.2.2010 in MP.3/10) PRAYER: Criminal Original Petition filed under section 482 of Criminal Procedure Code seeking to call for the records in C.C.No.76 of 2009 pending on the file of the learned Judicial Magistrate, Kotagiri and quash the same. For Petitioners : Mr.A. Ramesh, Senior Counsel for Mr. A.D. Jagadish Chandra for Accused 1 & 7 to 12 Mr. R. Gandhi, Senior Counsel for Mr. A.D. Jagadish Chandra for Accused 2 to 6 https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr. A. Saravanan, G.A. (Crl.side) for R1 Mr.R. Shanmughasundaram, S. C. for Mr. G. Ravikumar for R2 O R D E R The petitioners, who are the accused in case pending in C.C. No.76 of 2009 on the file of the learned Judicial Magistrate, Kotagiri, seek to quash the proceedings against them. The case arises out of a complaint preferred by the mother of the first petitioner informing that the first petitioner, an estranged son, had sought to obtain properties which had been settled upon her daughters by her late husband and by resort to the community council whose members, acting in support of the first petitioner, had along with him committed several wrongdoings towards causing the petitioner's daughters to part with the property settled in their favour. As the complainant and her daughters were not willing to act as per the diktat of such body which required them to deliver properties to the first petitioner as also execute a power of attorney in his favour, they were subjected to intimidation, put to various difficulties and suffered social ostracisation. On the complaint of the second respondent/mother of the first petitioner dated 27.05.2009, a case was registered in Cr.No.215 of 2009 on the file of the first respondent for offences u/s.143, 341, 448, 384, 506 (i) IPC r/w 511 IPC. On completion of investigation, a charge sheet stands filed, which now has been taken cognizance of resulting in C.C. No.76 of 2009. The charge sheet reads as follows: ' SUBMITTED BEFORE THE HON'BLE JUDICIAL MAGISTRATE, KOTAGIRI Sub: Case – Criminal case submitting final report – reg. Ref: Kotagiri P.S. Cr. No. 215/09 u/s. 143, 341, 448, 384, 506(i) r/w. 511 IPC @ 143, 341, 447, 384, 506(i) r/w. 511 IPC r/w Kattapanchayath. ... Accused : 1. H. Thiyagaranan (46) S/o. (Late) Hutchi Gowder, Vincraft, Club Road, Kotagiri. & 11 others. Accused A1 H. Thiyagarajan is the son of the PW-1 Mary Ammal. The other accused are Katta Panchayathars and members of so called 19 Village's Panchayath. Tr. Hutchi https://hcservices.ecourts.gov.in/hcservices/ Gowder was land lord and A1 is the son of Hutchi Gowder, PWs- 2,3,4 and 5 are the daughters of Tr.Hutchi Gowder. On 26.1.2008 at Nattakal during day time the marginally noted accused with intention to conduct Katta Panchayat and to pronounce illegal verdict, formed on unlawful assembly in Nattakkal within the jurisdiction of Kotagiri P.S. And Hon'ble Court and thereby the accused A1 to A12 committed on offence punishable under section 143 IPC. During the course of Panchayath on the same day and place the PWs 2& 3 were not allowed to witness the proceedings of the panchayath and hence restrained P.Ws 2&3 from witnessing the Panchayath and there by the accused A1 to A12 committed an offence punishable under section 341 IPC. On the same day, date and in shanthi house, horasholai within the jurisdiction of Kotagiri P.S and Hon'ble Court in pursuance of the illegal verdict the accused A7, A10, A11 and A12 illegally trespassed into the premises of PW.1 and thereby the accused A7, A10, A11 and A12 committed an offence punishable under section 447 IPC. On the same day, date and place the accused A7, A10, A11 and A12 attempted and criminally intimidated PW-1, PW- 2 and PW-3 to hand over the property as per the illegal Kattampanchayath verdict and to deliver the property to A2 and thereby the accused A7, A10, A11 and A12 committed an offence punishable under section 506(i) 384 r/w 511 IPC. During the course of overall transaction accused A1 in order to extract property from the complainant and with intention criminally intimidated with dire consequences through accused A7, A10, A11 & A12 and attempted to take the property on delivery, thereby the accused A1 committed an offence punishable under section 506(i) 384 r/w 511 IPC. The accused A1 – A12 with intention to take the property on delivery by criminal intimation through Kattapanchayath, issued unlawful decrees of excommunication for not obliging the decrees of handing over the Shri Lakshmi Tea factory and Santhi house to A1 and there infringed the fundamental rights envisaged in the Constitution of India and thereby. The accused committed an offence punishable under section Kattapanchayath. Hence the charge. Sd/-Inspector of Police Kotagiri Circle, The Nilgiris. https://hcservices.ecourts.gov.in/hcservices/ CHARGES UNDER SECTION AGAINST THE ACCUSED S.No. ACCUSED SECTION OF LAW 1. A1 – A12 143 IPC 2. A1- A12 341 IPC 3. A7,A10,A11, A12 447 IPC 4. A7,A10,A11, A12 506(i), 384 r/w 511 IPC 5. A1 506(i), 384 r/w 511 IPC 6. A1- A12 Kattapanchayath. Sd/-Inspector of Police Kotagiri Circle, The Nilgiris.' 2. The petitioners inform as follows: (a) The petitioners submit that they all belong to the traditional and ancient Badaga community which has its own communal traditions in every respect, such as, in marriage, in death, in religious practice, in property divisions, settling of disputes between the members of the community etc. The people of the community live in different parts of the District of the Nilgiris. The areas are divided into four parts which are called Seemais, namely, Thodhanadu Seemai, Mekkunadu Seemai, Porangadu Seemai and Kundhe Seemai and together they are called 'Nakku Betta'. The petitioners submit that in every Seemai, each village has a Panchayat and for a certain number of villages there is a higher Panchayat and another higher Panchayat for all the villages situate within the particular Seemai. The petitioners humbly submit that the said Panchayat system has been in existence from time immemorial, to resolve disputes that arise between the people belonging to the community and the people of the community have very strictly respected the decisions of the village panchayats and have obeyed them without any murmur. In rare cases the issues were taken to the final and ultimate level of Panchayat which is before the leaders of the community constituting 'Nakku Betta'. The petitioners submit that in the panchayats conciliatory measures are taken to amicably settle the differences or disputes and bring about peace and communal harmony between the members of the community and in the event of either of the parties not being satisfied with the suggestions given by the Panchayat, which is a rarity, it is always open to the parties concerned to approach the Courts of Law. (b) The first petitioner herein is an Advocate at Kotagiri and the son of Mr.J.Hutchi Gowder, who was a very highly respected https://hcservices.ecourts.gov.in/hcservices/ Gowda leader in the community and a prominent Planter and Industrialist in Kotagiri. The defacto complainant is the wife of the said Mr.J. Hutchi Gowder. PW 2 to 5 are the sisters of first petitioner. Prior to his death on 31.05.2008, Mr.J.Hutchi Gowder had very clearly and specifically expressed his desire, in the presence of the defacto complainant, the first petitioner, his sisters and other family elders, to be buried in the premises of Sri Lakshmi Tea Industries and that the said premises be given to his son, the first petitioner. This was consented to and accepted by all at that time. After Mr.J.Hutchi Gowder's death, since, the defacto complainant and her daughters refused to honour his wishes by giving the said premises where his body was buried to the first petitioner herein, the first petitioner was constrained to approach the elders of his family and as no solution could be brought about he took up the issue to the village elders to redress his genuine grievances so as to fulfill his father's last wish and desire. (c) Since the issue could not be resolved by the village elders, due to the non co-operation of the first petitioner's sisters to settle the issues, he was advised by the village elders to approach the nineteen villages Panchayat. At the Nineteen villages panchayat (Porangadu Seemai Panchayat) 2 sittings were held, in which his sisters were represented by Dr.Krishnamurthy (Husband of a sister Mrs. Vimala) Mr.T.N. Raju (Husband of another sister Mrs.Vijaya) and their son Mr.Dinesh Raju. It was of great importance that only the issue of giving of Sri Lakshmi Tea Industry, including the place in which late Mr.J.Hutchi Gowder was buried, to the first petitioner was discussed and nothing else. After giving all sufficient opportunity to put forward their respective grievances and after considering the sworn statement of T.Raju who expressed the last will and desire of the petitioner's father, the 19 village panchayat requested all to abide by the wishes of the first petitioner's father Late Mr.J.Hutchi Gowder. (d) Without complying with the recommendations of the 19 village panchayat, the first petitioner's sisters Mrs. Parvathi Bhojan, Mrs. Vimala Krishnamoorthy and Mrs. Latha Velukumar filed a Civil Suit against him before the District Munsif at Kotagiri in O.S.No. 67 of 2008 and the same is presently pending disposal. (e) In the said two panchayat sittings the procedure adopted was purely conciliatory and absolutely no pressure or intimidatory tactics, whatsoever, were used at any point of time. Since in the civil proceedings, they failed in their attempt to obtain an order of injunction, they, with a view to intimidate and harass the first petitioner by exerting political pressure, filed the complaint. As a matter of fact, one of the first petitioner's sisters had given a complaint to the Hon'ble Chief Minister's cell wherein she mentions the names of politically and administratively influential persons. The first petitioner has submitted a detailed reply to the said complaint given by his sister and the respondent, who had earlier conducted a detailed enquiry, did not proceed with the enquiry https://hcservices.ecourts.gov.in/hcservices/ after having found that no Katta Panchayat was conducted as alleged. (f) It was only as per tradition and custom, to resolve the dispute/ issue relating to the property where late J.Hutchi Gowder, the Nineteen Village Panchayat was convened and held its sitting on 26.10.2008 and the said Panchayat was held at Nattakkal in a place of worship, in full public view, in which the leaders of various villages in Porangadu Seemai participated . On the said date the representatives of the defacto complainant were also requested to be present. The defacto complainant herself has submitted in her complaint that the panchayatdars are used to discuss disputes and give advice to the contesting parties. Thus, it is the admitted case of the complainant herself that petitioners 2 to 12 use to discuss disputes and give advice or conciliate disputes between the parties who approach the Panchayat to redress their grievances. Thus, admittedly, the said forum is legally recognised and as such, it cannot by any stretch of imagination be termed as an 'unlawful assembly'. (g) As regards the alleged offence under section 384 IPC, the statements of PW1, 2 and 3 is that while the panchayat proceedings were going on the petitioners No.7, 5, 11 and 12 had come to the house of PW 1 and requested to transfer the properties in the name of her son, the first petitioner herein, for which she refused. There is absolutely no allegation, whatsoever, that the said petitioners threatened her or intimidated her while asking for the properties to be transferred in the name of her son. The statements of PW5 and 6 with regard to this are only hearsay in respect of the so called intimidation. The statement of PW1 is concurred by the statement of PW 2 to 4. Nothing has been stated that the above petitioners put PW 1 and others in fear of any injury to them or to any other person and thereby dishonestly induced them to deliver any property or valuable security or anything signed or sealed which may be converted into a valuable security to attract the offence of commission of extortion and the offence of criminal intimidation. Hence, the charge against petitioners No.7, 10, 11 and 12 for offence Section 506 (i), 384 r/w.511 of IPC is not made out against them. (h) In respect of the charge of section 447 IPC against the petitioners No.7, 10, 11 and 12, excepting a vague allegation that the first petitioner along with the Panchayatdars went to the house of PW-1 and her daughters and demanded handing over of property, there is no specific allegations by PW-1 that they entered into the said property with intent to intimidate, insult or annoy the defacto complainant so as to constitute the offence of criminal trespass. 3. Sri. R. Gandhi, Senior counsel would urge on behalf of the accused Nos. 2 to 6, that the complaint which related to panchayats held on 26.10.2008 and 01.11.2008 had been preferred on 10.04.2009, https://hcservices.ecourts.gov.in/hcservices/ the same had been registered in Cr. No. 76 of 2009 on 27.05.2009 and the charge sheet in the case had been filed on 21.09.2009. Learned senior counsel would submit that the conduct of a panchayat as per the community custom could not be termed an unlawful assembly. The fact that women were not allowed to attend panchayats held by the community was accepted in the very complaint. That is why the complainant and her daughters had not attended the same and there was no question of their having been prevented from doing so. As such they were not subjected to any wrongful restraint. The panchayat had only attempted to arrive at a settlement of the dispute and there was no question of any extortion. Attending the residence of the complainant to inform the decision of the panchayat would not amount to an act of criminal trespass nor would the offences of criminal intimidation or attempt to commit the same stand made out. The ingredients requisite to make out the offences alleged do not stand satisfied in the case. Learned senior counsel would submit that a writ petition was filed in W.P. No.21976 of 2010 in respect of the same matter and the same stood closed on finding that no offence stood made out. He would state that the panchayat system stood admitted by the complainant and the second respondent had preferred the present complaint after an attempt to obtain an order of interim injunction had failed. The first petitioner was a lawyer and the dispute was a mere civil dispute between him and his family members. All the accused were respectable leaders of the community whom the son of the family had approached. There was nothing wrong in approaching the community forum for settlement of the family dispute. The panchayat meetings had been held on 26.10.2008 and 1.11.2008. The complainant party had approached the civil court on 28.11.2008. On failure to obtain an order of interim injunction in their favour, they had after a period of 5 months, preferred the complaint on 10.04.2009 to the Superintendent of Police, Nilgiris District. After a delay of 40 days, the same was forwarded to the Deputy Superintendent of Police on 20.05.2009, the case had been registered on 27.05.2009. In circumstances where the connected Writ petition stood closed and the the statements allegedly recorded on 29.05.2009 informed of occurrence of 31.05.2009, it was apparent that the complaint case was false and could not survive. 4. Sri.A. Ramesh, Senior counsel appearing on behalf of the accused 1, 7 to 12, would submit that malafidies in investigation was writ large from the fact that several statements of the witnesses which were allegedly recorded on 29.05.2009 had spoken to occurrences of 31.05.2009. This reflected the inherent improbability of the truth of the statements recorded and such would be reason enough for this court to exercise its powers under section 482 CrPC. He would state that neither the complaint nor the final report informed details of who did what and when. This, in spite of the complaint having been prepared with the assistance of advocates and despite the same having been a well thought out one. https://hcservices.ecourts.gov.in/hcservices/ On the circumstances surrounding the case he would submit as informed by learned senior counsel Sri R. Gandhi. Both senior counsel have referred to certain judgments which will be touched upon hereunder. 5. Sri.R.Shanmugasundaram, learned senior counsel appearing on behalf of the defacto complainant would inform that the panchayat in this case was convened for an improper purpose and the same was an unlawful assembly. Even if they be community leaders, they cannot claim to be above the law. The allegations made against the accused were serious in nature and minute details could now not be gone into towards undoing the prosecution case. In fact the complainant party had grievances against the investigating officer and mistakes pointed out regarding the dates could now not be relied upon by the accused. The fact that something was terribly amiss could well be gathered from the affidavit filed by the investigating officer in W.P No.21976/2010. Learned senior counsel would inform that the list witness No.22 Mr.I. Doraiswamy was a very senior member of the bar and he in public interest had moved the writ petition. Besides finding support for the prosecution case from the statements of the other witnesses, the statement of such list witness gave a clear and lucid picture of what had transpired. Learned senior counsel would rely upon the decision reported in K.Gopal v. The State of Tamilnadu, 2005 (4) CTC 241 to inform the serious concern of this court against the conduct of such 'Katta' panchayats. 6. On consideration of the rival submissions and perusal of the material placed before this court, we find that the complaint and statements do inform of matters, which if true, would constitute commission of offences. A charge sheet stands duly filed in the case and the same has been taken cognizance of by the lower court. What the learned counsel for the petitioners in effect require this court to do is to appreciate the veracity or otherwise of the material placed before the lower court. That, is not permitted of this court towards quashing proceedings in exercise of powers under section 482 CRPC. It might even be that the offences which stand committed are not those as informed by the investigating officer in his charge sheet. To ascertain what, if any. are the offences that actually stand committed, would be an exercise for the trial court to undertake. From the fact that an hierarchical system of dispute resolution prevails within a particular community, it cannot be concluded that all that is complained of against the members of the panchayat must necessarily be false. In substance, the complaint is not against holding the customary panchayat but against using the same as a means of achieving unlawful ends. In the affidavit of the investigating officer in WP No.21976/2010, it is informed, https://hcservices.ecourts.gov.in/hcservices/ 'that on receipt of the complaints, action was initiated and a thorough investigation was conducted, in which several persons were examined and charge sheet has also been filed. Several witnesses including the writ petitioner were also examined and the offence was proved as regards these unlawful orders passed by the respondents 7 – 14, who excommunicated the petitioner as well as Mrs.Mariammal and her daughters. Infact, the verdict has created a great pandemonium and fuss among the people of Kothagiri. It is further submitted that after thorough investigation, charge sheet was also filed before the Hon'ble Judicial Magistrate, Kothagiri on 21.09.2009. It is submitted that almost 25 witnesses were examined who have spoken about the conducting of Kangaroo Courts by the respondents 7-14 herein with the connivance of the 6th respondent. Infact, subsequent to the filing of charge sheet, the respondent 6,8 and 9 were arrested on 19.08.2009 and respondent 13 was arrested on 20.08.2009. However, the arrested persons were released on bail and the other Panchayatdars engaged in a road block for the arrest of the respondents 6, 8, 9 and 13 near the Court. Thereafter, the fourth respondent has also issued direction on 28.08.2009 about the illegal Kattapanchayat which was communicated to all the divisions of Coonoor Police Station. Though the 4th respondent has taken all necessary and strict action against the Panchayatdars, the Panchayatdars are still convening the illegal meetings thereby excommunicating several persons who lodged the complaints with 5th respondent for which also action is taken against the 6th to 14th respondents. It is submitted that the respondents 7 – 14 are acting unconstitutional for which the 4th and 5th respondents are taking all necessary actions to control, and to curb the Kangaroo Courts conducted by the Panchayatdars. Complaints were received from various people like Kini Dharman on 16.06.2009, who was also excommunicated along with other 21 persons. Likewise one Mr.J. Mani, Jakkanarai Village has lodged a complaint on 3.6.2009 against the respondents 7 – 14 herein and few other persons for excommunicating him. On the same day one Mr.N.Krishnan and H. Prakash also hailing from Jakkanarai Village have also lodged similar complaints against the respondents 7-14. On 2.6.2009, one Mr.Rajamani from Aravenu Village, A. Shivakumar on 8.5.2009 has lodged similar complaints to take action on these Panchayatdars for excommunicating them. In fact all the above complainants were also examined as witnesses in the above complaint given by Mariammal. https://hcservices.ecourts.gov.in/hcservices/ 7. Learned senior counsel Sri.R. Gandhi relied upon decision in Pepsi Foods Ltd & anr. v. Special Judicial Magistrate & ors., (1998) 5 SCC 749, towards informing that powers under section 482 CrPC could be used by the High Court to prevent the abuse of process and to secure the ends of justice. The decision in State of Haryana & Ors. v. Bhajanlal & Ors., 1992 Supp.(1) SCC 335, was referred to as in such case the Honourable Apex Court had laid guidelines one of which was that a complaint could be quashed if the allegations therein taken at their face value and accepted in their entirety do not make out a prima facie case of commission of offences. The said judgment also was relied on to inform that, ' (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.' To reaffirm the principles enunciated in Bhajan Lal's case, decision on Fakhruddin Ahmad v. State of Uttaranchal & anr., (2008) 17 SCC 157 and Jugesh Sehgal v. Shamsher Singh Gogi (2009) 14 SCC 683, were touched upon. R. Kalyani v. Janak C. Mehta & Ors. (2009) 1 SCC 516, was relied upon to inform that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint. Decision in Hira Lal & ors v. State of Uttar Pradesh and ors., (2009) 11 SCC 89, was relied upon to inform that the second complaint on the same fact and on similar allegations was not maintainable as an earlier complaint preferred by the sister of the first petitioner after detailed enquiry and on finding that no katta panchayat was conducted as alleged, had not been proceeded with. 8. The inapplicability of the decisions relied upon arise primarily because, in the facts and circumstances of the present case, we are not able to arrive at a finding that the complaint allegations if taken as true would still