IN THE HIGH COURT OF MADRAS, MADURAI BENCH
S. Vimala, J.
R. Andiappan @ Rajasekar – Petitioner
Versus
State through The Inspector of Police, Avudayarkoil Circle Police Station, Pudukkottai District and others – Respondents
Crl.O.P.(MD) No. 9718 of 2016 and Crl.M.P. (MD) 4885 of 2016
Decided On : 22-08-2016
Indian Penal Code - Section 120-B, 120-A - Code of Criminal Procedure - Section 161, 155(2), 156(1) – Constitution of India - Article 226 - Evidence Act - Section 11 - Quash of Criminal Procedure - Definition of criminal conspiracy - Punishment of criminal conspiracy -"(i) where it manifestly appears that there is a legal bar against institution or continuance of the proceedings; (ii) where allegations in 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 - Held, 2nd accused was not at all available in India and it is also not case of prosecution 2nd accused was part of 2nd conspiracy in which services of hooligans are stated to have been engaged, which has resulted in murder of deceased - Admittedly, first meeting cannot be said to have resulted in any conspiracy being hatched - As there was no agreement to commit any offence and as there is no allegation that some act besides the plan is done by one or more parties to such a plan in pursuance thereof - Therefore, ingredients of Section 120-A is not made out, so far as the petitioner is concerned - Court is of the firm view that likelihood of the case ending in conviction as against A2 is very bleak - case to quash proceedings as against A2 - Criminal Original Petition is allowed
S. Vimala, J.
The ends of justice are higher than the ends of law, though justice is achieved through law enacted by the Legislature. The power to quash the proceedings under Section 482 Cr.P.C., has a salutary public purpose.
2. The cases in which the High Court should exercise the power to quash the proceedings have been enlightened in the decision reported in R.P. Kapur v. State of Punjab 1960 AIR 862 and it runs as under:
"(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."
2.1. Contending that there are neither allegations which would be enough to constitute an offence under Section 120-B nor there is legal evidence/material sufficient to get a conviction for the offence under Section 120-B IPC, this petition to quash the proceedings has been filed. In other words, it is contended that allowing the proceedings to continue would be an abuse of the process of the Court and that ends of justice require that the proceedings must be quashed. In order to appreciate the contention raised, it is necessary to consider the brief facts and the materials collected by the Investigating Agency. Brief Facts:
3. The defacto complainant/R2/Palanimuthu/eye witness/is the son of the deceased Subramanian. The deceased was the President of Irrigation Committee. In respect of irrigation problem, there was a dispute between the villagers of his village and Kattamudi village.
3.1. During 2011, the deceased contested for the post of President in the local body election for which he had borrowed a sum of Rs.5,00,000/- from A1 and on account of non payment by the deceased, there was enmity between the defacto complainant and A1.
3.2. On 29.09.2014, there was a wordy quarrel between the deceased on one hand and A1 and A2 on the other hand. A1 and A2 went to the village of the deceased and threatened him. They were forced to return at the intervention of the neighbours. Towards effecting peace, a meeting was arranged for settlement and A1 refused to participate.
3.3. According to prosecution, as the deceased did not return the borrowed money, the accused persons hatched conspiracy on 02.12.2015 at the house of the 3rd accused (during the 11th day death ceremony of his father). Thereafter, on 15.12.2015, the 2nd accused left for Malaysia; thereafter during the 30th day death ceremony of A3's father, the conspiracy continued in which they decided to do away with the life of the deceased.
4. The prosecution relies upon the statements of L.W.1/son of the deceased, who has spoken about the motive for the occurrence, L.W.21/statement of the driver of the 1st accused, L.W.27/statement of Subramanian and L.W.28/statement of Muthuveerappan, in order to substantiate the charges against the accused persons.
5. It is specifically pointed out that the statement of L.W.1 is falsified by the averments made in the FIR, which are inherently improbable and opposed to common sense and no prudent person would be inclined to place reliance upon the statement of L.W.1 in FIR and in the 161 statement.
5.1. It is contended that the statement of L.Ws.21, 27 and 28 are fabricated and it is highly improbable that the driver of the 1st accused would have given a statement against his own master.
5.2. It is further stated that the statement L.Ws.27 and 28 even assuming it to be true, would not make out the offence under Section 120-B IPC.
6. The contentions of the learned counsel for the petitioner should be appreciated in the light of the decision reported in the case of State of Haryana And Ors v. Ch. Bhajan Lal And Ors, [1992 AIR SC 604], which reads as under:
"In the exercise of the extra-ordin
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