MAJOR K MATHEWS Vs. S MANIVANNAN

JUDGEMENT

(1.) THIS revision arises against the order of the learned Chief Metropolitan Magistrate, Egmore, Chennai passed in Crl.M.P.No. 2297 of 2010 on 1.2.2011. The petitioner preferred a complaint against five persons alleging commission of offences under Sections 120-(B), 166, 167, 182, 192, 196, 201, 203, 211, 217, 220, 323, 500, 506(i), 506(ii) r/w.34 IPC. In the complaint the petitioner has informed of being 72 years old and very ill, belonging to the affluent section of society and of having carried out great deeds as the President of a Resident Welfare Association. It informs of his disciplined and transparent functioning having displeased the treasurer and fellow unscrupulous comrades who were highly jealous of him. It informs of his having expelled the erring persons, his re-election as the President in September 2000 and of the disgruntled group having entered into an agreement to commit various major offences against him in pursuance of criminal conspiracy. It informs of the rival faction having conducted a meeting on 01.04.2001, of their expelling him and the general secretary and electing new office bearers, imitation of the letter head of the Association and parallel functioning. The complainant filed a suit as the President of the said association challenging the legality of the meeting held and other proceedings of the other group. He had preferred four criminal cases as party in person before the IX Metropolitan Magistrate Court, Chennai under various sections of the IPC including section 120 B which were pending final disposal. The first accused and his father are also accused in those cases. THIS is the starting point. The third accused is none other then the brother of the complainant. In very uncharitable terms several allegations are made against the third accused and one other brother of the complainant. Very many civil and criminal actions between the complainant and the third accused and the other brother are informed. The fourth accused is an advocate who has appeared on behalf of the third accused and the other brother in cases against the complainant. He is defined as a 'daredevil advocate belonging to the CITU' who 'contrary to the ethics professional and other conduct expected of a lawyer became the mouthpiece of the accused persons and has since then been the legal brain and motivating factor behind all the illegal acts' of the third accused and the other brother both within and outside court. A criminal conspiracy between the complainant's brothers and the fourth accused in engaging a 'notorious daredevil drunkard advocate' to assault him while he was in court, which incident was recorded by the concerned Magistrate, and which gave rise to the complainant preferring complaints to the Bar Council both against the fourth accused as also another is informed. The complainant further informs that 'in pursuance of the criminal conspiracy' 'the fourth accused instigated his clients to abuse insult and ridicule him and to make an attempt' on his life by pushing him down the staircase when he was returning home from court, of the registration of a case in crime number 39 of 2002 by the B4 High Court police station for offences under section 323 (ii) and 506 (i) IPC against the third accused and the other brother as also the filing of charge sheet therein. The complainant had suffered severe injuries. The complainant then brings in the fifth accused. He informs the deterioration for the worse after the success of his brother, the third accused as also the other brother 'under the legal guidance and physical support of their defence lawyer the fourth accused in establishing closer ties with the fifth accused the city public prosecutor in January 2003'. It is informed that the nexus between the accused 3 to 5 'emboldened the third accused to hotly pursue the ultimate object of the criminal conspiracy for the earliest elimination of the complainant at any cost by all illegal means and methods'. The complaint goes on to inform of further improper recourse to court proceedings by the third accused and the other brother and the obtaining of an injunction against him ex-parte 'in collusion with the Munsif concerned' and of the plaintiffs having allowed the suit to be dismissed for default, pursuant to his hot contest. The complaint then informs of his success in the suit against the rival group of the Association, of it being a crushing blow on them and therefore the father of the first accused, who had two sons in the city police as also another IPS officer relative, 'refused to be subdued and take the defeat on the legal front gracefully'. With the backing of the father of the first accused, who was 'old and sick', the first accused and the other accused 2 to 5 became all the more furious and emboldened and were itching for retaliatory strikes against the complainant as he considered himself to be above the law and behaved like a law unto himself as he was treated like that 'by the second accused herein on earlier complaint lodged by the complainant'. The complainant then informs of the third accused and the other brother coming to know of the litigations, both civil and criminal, between the complainant and his enemies and the enlargement of criminal conspiracy by their frequent visits to the house of the first accused and his father and various attempts at tarnishing his image with a view to have his arms licence cancelled so as to make him an easy target for the future attempt on his life in pursuance of the ongoing criminal conspiracy against him. The complainant then informs of an attack on him by the first accused on 12.09.2004 of his having preferred a complaint there regards and of partisan action by the police, emboldening the first accused and his father to indulge in rowdyism . It has become necessary to recall the above as such is the manner in which the complainant seeks to establish the nexus between the accused persons. According to the complainant, 'first accused was the chosen muscle man of all the co-conspirators to commit the overt act on 21.05.2005 at about 19.15 hours in front of the house of the complainant in pursuance of the existing criminal conspiracy and the agreement arrived at to commit various cognizable offences'. The 2nd accused Inspector of Police (L&O) was/is a powerful tool in the hands of the 5th accused 'like the legendary Tanjur Doll selected in pursuance to the conspiracy to be used against the complainant for his illegal arrest, detention in the police station from the night of 21.05.2005, fabrication of false records, denial of medical aid, violation of Section 667 of the Tamilnadu Police Standing Orders, deprivation of his liberty and rights guaranteed under the constitution, subjecting him to degrading and inhuman treatment' contrary to the directions of the Supreme Court. The 3rd accused, brother of the petitioner is the 'kingpin who hatched the criminal conspiracy against the complainant with the other accused persons herein in view of his never ending virulent enmity against him'. He is an embodiment of devilish thoughts and deeds from his early days. The 4th accused 'is the mouth piece of all the other accused persons. He is the legal brain behind all the illegal activities of his said clients K.M.Varghese (A3) and A.M.Samuel and through him' only A5 the city Public Prosecutor could be one over to their side right from the days of the proceedings in transfer Crl.O.P.Nos.9988/2002 to 9992/2002. According to the complainant, the 5th accused 'The City Public Prosecutor acted and conducted himself under the colour of his office as a co-conspirator as well as the legal brain of the criminal conspiracy hatched between himself and other accused persons herein against the complainant'. A case stands registered in Cr.No.675 of 2005 against the complainant on the file of the R5 Virugambakkam Police Station Chennai, the station at which the second accused is the Inspector of Police (L&O). The case was registered for offences u/s. 341,307 IPC r/w.30 of the Arms Act 1959 and is now pending trial in S.C.No.30/2006 before I Additional Sessions Judge, Chennai. In the words of the petitioner.

(2.) THE petitioner terms his arrest as illegal and attributes knowledge to the second accused of the ongoing feud between him and the rival faction in the welfare Association, in which the first accused and his father were involved and of their being the accused in three Private complaints where the complainant appears as party-in-person. THE very arrival of the first accused in front of the house of the complainant at about 17.40 hours on 21.05.2005 is informed to be with deliberate intent of committing major offences whereby he was provoked resulting in his justified use of his right of Private defence by opening fire with his licensed firearm. THE complainant then argues that his arrest was totally unjustified and illegal. THE complaint alleges that in causing his arrest the 2nd accused acted in contravention of law and on the vindictive directions of the 5th accused the City Public Prosecutor, in pursuance of the agreement reached between the accused persons in view of the continuing criminal conspiracy and their common intention, in particular, to commit various cognizable offences against the complainant. He informs that a complaint preferred by him over his residential telephone was ignored and no case was registered against the real aggressor, the 1st accused. This again is said to have taken place under the vindictive instructions of the 5th accused on account of his virulent enmity against the complainant from January 2003 and the existing criminal conspiracy. Informing violation of the directions of the Apex Court in D.K.Basu"s case. THE complainant then proceeds to inform the other hardships suffered by him, his detention in jail and other wrong doings. THEreafter the objections of the fifth accused/City Public prosecutor to grant of bail to the complainant and his insistence on conditions, when bail was granted are complained against. THE complainant informs that while undergoing inpatient treatment the complainant had presented a private complaint against the first accused to the Superintendent of the central prison on 27.05.2005 for onward transmission to the IX Metropolitan Magistrate, Saidapet, Chennai praying for a direction to the Inspector of Police (L&O) u/s.156 (3) Cr.P.C to register a case against the 1st accused. He informs of learning that the same had not reached the magistrate and that he addressed a letter under RPAD to the Superintendent of the Central prison on 20.06.2005 with a copy of the private complaint dated 27.05.2005, requiring an enquiry as to whether the complaint had been forwarded to court and if not, cause forwarding of the same immediately. Finally the complaint informs of his having preferred a complaint before the State Human Rights Commission against the second accused, two of his subordinates and the fifth accused for human right violations and of learning on enquiry that the complaint had been closed with direction to the complainant to approach the competent court of law in view of the nature of allegations. THE complainant has informed of awaiting the order of the commission by post.

(3.) LEARNED counsel for the fourth respondent submitted that having acted maliciously and having impleaded them, the petitioner could not now be heard to say that respondents ought not to be heard. Reliance is placed on the judgment of the Apex court A.K.Subbiah and ors vs. State of Karnataka and others (1987) 4 SCC 557 wherein while dealing with subsection 2 of Section 401 Cr.P.C it has been observed as follows: