H THIYAGARAGAN Vs. STATE

JUDGEMENT

(1.) 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 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. CHARGES UNDER SECTION AGAINST THE ACCUSED S.No.ACCUSEDSECTION OF LAW 1. A1 " A12143 IPC 2.A1- A12341 IPC 3.A7,A10,A11, A12447 IPC 4.A7,A10,A11, A12506(i), 384 r/w 511 IPC 5.A1506(i), 384 r/w 511 IPC 6.A1- A12Kattapanchayath. 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 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 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.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.