IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.07.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.OP.No.6667/2006 Cr.MP.Nos.1685/2006 & 135/2007 1.Dr.K.Makudamudi 2.Dr.M.Anugayathri 3.M.Padmini Petitioners Vs State by 1.The Commissioner of Police Coimbatore. 2.The Inspector of Police B4 Race Course Police Station Coimbatore. 3.Dr.T.P.Kalanithi Respondents (R3 impleaded as per order of this Court dated 6.2.2007 in M.P.No.13/2007) Prayer:- This Criminal Original Petition is filed to call for the records in Cr.No.249/2006 on the file of the 2nd Respondent and quash the proceedings in so far as the Petitioners are concerned. For Petitioner : Mr.S.Ananthanarayanan For Respondent : Mr.S.Senthil Murugan for PP-RR1&2 Mr.M.Rahamath Ali-R3 O R D E R This Criminal Original Petition is filed to quash the FIR in Cr.No.249/2006 on the file of the learned Judicial Magistrate III, Coimbatore. 2.Few material facts, which are necessary for the disposal of this Criminal Original Petition, are given below:- The Petitioners 1 and 3 are the parents of the 2nd petitioner. The 2nd Petitioner was married to Dr.Karthikeyan, son of the defacto complaint on 22.2.2004 and it is alleged that she was tortured mentally and physically by her husband and in laws with a demand of dowry and sent out of the matrimonial home. The 2nd Petitioner had given a complaint against the defacto complainant https://hcservices.ecourts.gov.in/hcservices/ Dr.Kalanidhi, his wife K.Kowsalya and son Dr.Karthikeyan and one Hari for dowry harassment before the Commissioner of Police, Chennai on 7.4.2005 and after investigation, CBCID Metro Wing has filed a final report on 8.2.2006 in CC.No.113/2006. 3.The defacto complainant, Dr.Kalanidhi has given the present complaint against the Petitioners herein before the Commissioner of Police, alleging that some posters were found pasted in various places within the Coimbatore Medical College Hospital Campus and outside, depicting certain false complaints, personal derogatory remarks and baseless allegations against the defacto complainant. It appears that the said posters were in the name of a registered social organisation and said to have been printed at M/s.Mani Offset Printers, Kallakurichi under the banner of District Consumer Welfare Protection Peravai by its President V.Ramanatha Adigalar. The defacto complainant has alleged in the complaint that he has every reason to believe that the 2nd Petitioner and her father, the 1st petitioner are instrumental and have instigated such cowardly acts of defamation and mud slinging against the defacto complaint. On the basis of the said complaint, FIR had been registered in Cr.No.249/2006, as against which, the Petitioners have come forward with this Criminal Original Petition to quash the said FIR. 4.Mr.S.Ananthanarayanan, the learned counsel for the Petitioners would contend that the FIR does not disclose any offence on the part of the Petitioners and it is gross abuse of process of law, as it is made out of vindictiveness and to harass the Petitioners, since they have set the law in motion for dowry harassment against the defacto complainant and his son. He would further contend that the offences under Sections 188, 500 and 501 of IPC are clearly covered by the prohibition contained in Section 195(1) and 199 of Code of Criminal Procedure respectively, which is mandatory in nature and the complaint being given in violation of those provisions is liable to be quashed. 5.Before adverting to the aforesaid contentions of the learned counsel for the petitioners, the nature of allegations made against the petitioners in the FIR has to be looked into. The relevant portion in the complaint is extracted below: "The posters and notices are said to have been printed at Mani Offset Kallakurichi under the banner of District Consumer Welfare Protection Peravai 28/3 Rajanagar Kallakurichi Villupuram District the President of which is mentioned as Mr.V.Ramanatha Adigalar B.A. My son Dr.K.Karthikeyan was married in February 2004 to Dr.M.Anugayathri D/o K.Magudamudi bailing from Vadakanandal Kanchipuram Kallakurichi Taluk Villupuram District My son developed brain cancer in November 2004 and his wife left him in February 2005 she had levelled false and baseless complaints against https://hcservices.ecourts.gov.in/hcservices/ him and our family alleging dowry harassment and the above complaint is under police investigation. In the above situation, I have every reason to believe that Dr.M.Anugayathri and her father Dr.K.Magudamudi are instrumental and instigating such cowardly acts of defamation and mud slinging. I request you to kindly register a criminal complaint against the following for abuse of personality and character assassination aimed at tarnishing the image and vent only defaming my position spoiling the reputation which I have earned so far in service and profession." Based on the above said allegations, the FIR is registered for the offences under Sections 188, 500 and 501 of IPC and 15(1) of the Press and Registration of Books Act, 1867 and 4(1) of the Tamil Nadu Open Places (Prevention of Disfigurement) Act, 1959 against the petitioners and one V.Ramanatha Adigalar and M/s.Mani Offset Printers. 6.When a complaint is sought to be quashed, it is permissible to look into the materials to assess as to what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. The allegations against the Petitioners are that the defacto complainant had reason to believe that the Petitioners are instrumental in such publication of hand bills containing defamatory matters against the defacto complainant. There is no positive allegation or averment to show that the same has been printed or published only at the instigation of the Petitioners. Neither there is any averment to the effect that there is some material to link between the Petitioners on the one hand and the printer and the publisher on the other hand in publishing the said posters and handbills. 7.The learned counsel for the Petitioners would contend that when the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the Petitioners to face the criminal trial would be totally unjustified, which would lead to the abuse of process of law. In support of his contentions, he drew the attention of this court to the decision rendered by the Honourable Supreme Court in the case of Gorige Pentaiah Vs. State of AP and others [2009-1-SCC-Cri-446], wherein in paragraph 12, the Honourable Supreme Court has held as under:- "12. This court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 of Code of Criminal Procedure. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice for the administration of which alone it exists, or to prevent abuse of process of the court. Inherent power under Section 482 of Code of Criminal Procedure can be exercised. https://hcservices.ecourts.gov.in/hcservices/ (i)to give effect to an order under the Code: (ii)to prevent abuse of process of court and (iii)to otherwise secure the ends of justice. Inherent powers under Section 482 of Code of Criminal Procedure though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute." 8.In an another decision rendered in the case of R.P.Kapur Vs. State of Punjab [AIR-1960-SC-866], the Honourable Supreme Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:- i.where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; ii.where the allegations in the first information report or complaint taken at their 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." 9.The Honourable Supreme Court has held in a catena of decisions that a court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution. The legal position is thus well settled that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and no useful purpose is likely to be served by allowing criminal Prosecution to continue, the court may while taking into consideration of the special facts of the case also, quash the proceedings even though it may be at a preliminary stage. 10.To constitute an offence under Section 188 of IPC, the following ingredients to be satisfied: (i)Firstly, it requires that there must be an order promulgated by a public servant who is lawfully empowered to https://hcservices.ecourts.gov.in/hcservices/ promulgate such an order. (ii)Secondly, a person having knowledge of such an order with certain property in his possession or under his management had disobeyed such direction. (iii)Thirdly, such disobedience has caused or tend to cause obstruction, annoyance or injury or risk of it to any person lawfully employed or danger to human life, health or safety and further the impugned order should be in writing and duly promulgated to the accused concerned. It is obvious that this section applies to orders of public functionaries for public purpose and not to an order between the party to party. 11.On a bare perusal of the complaint, I am unable to find any of the ingredients stated supra so to constitute an offence under Section 188 of IPC. There is absolutely no averment making out an offence under Section 188 of IPC. That apart, Section 195(1) of the Code of Criminal Procedure bars cognizance by any Court of the offence above mentioned except upon a proper complaint. As regards the offence under Section 500 of IPC is concerned, Section 199 of Code of Criminal Procedure is mandatory, inasmuch as the complaint should be given to the Magistrate concerned by an aggrieved person. Absence of such complaint would render the Prosecution as void and without jurisdiction. 12.At this juncture, it is relevant to refer to the decision by Honourable Supreme Court rendered in the case of Patel Laljibhai Somabhai Vs. The State of Gujarat [AIR-1971-SC-1935], wherein it is held thus:- "The purpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in Section 195(1)(b) and (c) is both to save the accused person from vexatious or baseless prosecutions spited by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the courts in which forged documents are produced or false evidence is led and the conclusions of the criminal courts dealing with the private complaint. It is for this reason that the Legislature has entrusted the Court, whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest of a criminal trial of the guilty party." 13.In the instant case, for Prosecution of an offence under Section 188 of IPC, there is no complaint by the public servant. Section 195 of Code of Criminal Procedure operate as a bar in launching the Prosecution against the Petitioners, unless there is https://hcservices.ecourts.gov.in/hcservices/ a complaint by the Officer who is supposed to have issued the promulgation order if any. Like wise, for an offence under Section 500 of IPC, the complaint ought to have been filed before the Magistrate and the FIR registered in contravention of the above statutory provisions is illegal and unsustainable in law. 14.Mr.M.Rahamath Ali, the learned counsel for the 3rd Respondent would submit that at this stage, this court in its jurisdiction under Section 482 of Code of Criminal Procedure is not called upon to embark upon the enquiry as to whether the allegations in the FIR is reliable or not and thereupon to render definite finding about the frivolous or veracity of the allegations. In support of his contention, he relied on the decision rendered in the case of Central Bureau of Investigation Vs. K.M.Sharan [CDJ-2008-SC-1544]. His submission cannot be countenanced as there is a legal bar against the institution of the proceedings in this case. Further, the allegations in the First Information Report if taken at their face value and accepted in their entirety do not constitute the offences alleged. 15.Mr.S.Senthil Murugan, representing the learned Public Prosecutor would submit that there are other offences such as offence under Sections 15(1) of the Press and Registration of Books Act, 1867 and 4(1) of the Tamil Nadu Open Places (Prevention of Disfigurement) Act, 1959, which are cognizable offences and they do not require any such complaint to the learned Magistrate. Therefore, he would submit that it is open to the investigating agency to launch Prosecution in respect of those offences. 16.It has been held by this court in the case of Murugesan and Others Vs. State of Tamil Nadu [1989-Crl.LJ-1833] that a party should not be allowed to evade the provisions of Section 195 of Code of Criminal Procedure by bringing a charge under another Section of Penal Law. The principle is that the facts should be considered as a whole without splitting them up and when they disclose a specific charge of graver offence requiring a complaint, then Section 195 cannot be evaded by electing to prosecute for a general or lesser offence for which no complaint is necessary. 17.In the case cited supra, the proceedings were commenced against the Petitioners for the offences under Sections 188, 143, 147, 341 and 309 of IPC and the provisions under City Police Act. It was alleged that the Petitioners assembled in front of Police Station and did not disperse when ordered. It was also alleged that order under Section 30(2) of the City Police Act was promulgated and there was non compliance with that order, but no complaint was filed by the officer who had issued the order. In said view of the matter, the learned single Judge of this Court held that it is a case of resorting to devices or camouflage of clubbing other cognizable offences actually not made out along with offence under Section 188 and hence, the proceedings were liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 18.I am in total agreement with the view expressed by the learned Single Judge of this court. In cases where in the course of the same transaction, an offence for which no complaint by a public servant is necessary under Sections 195(1) of Code of Criminal Procedure and an offence for which such complaint is necessary are committed, it is not possible to split up and hold that the Prosecution of the accused for the offences not mentioned in Section 195(1) of Code of Criminal Procedure should be upheld. Therefore, it is not possible to agree with the contentions of the learned Public Prosecutor that the complaint given by the 3rd Respondent for the offences under Sections 15(1) of the Press and Registration of Books Act, 1867 and 4(1) of the Tamil Nadu Open Places (Prevention of Disfigurement) Act, 1959 which are cognizable offences could be proceeded with as Section 195(1) or Section 199 of the Code of Criminal Procedure is not attracted in so far as those offences are concerned. If the criminal prosecution initiated against the petitioners are allowed to continue, then it would be an abuse of process of law and hence, the same is liable to be quashed. 19.In view of the reasons stated above, the FIR in CC.No.113/2006 deserves to be quashed and accordingly, it is quashed in so far as the petitioners are concerned and this Criminal Original Petition is allowed. Consequently, the connected MPs are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Srcm/sri To: 1.The Commissioner of Police, Coimbatore. 2.The Inspector of Police, B4, Race Course Police Station, Coimbatore. 3.The Public Prosecutor High Court, Madras. 2 cc To M/s.For & Fair Associates, Advocate, SR.33179 1 cc To M/s.H.Rajasekar, Advocate, SR.33981 Crl.OP.No.6667/2006 mdr(co)pmk.11.8.2009. https://hcservices.ecourts.gov.in/hcservices/