M RAMASWAMY Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Accused 1 to 37 in C.C. 200 of 1986 on the file of the Judicial first Class Magistrate, Attur, have preferred this petition under section 482, Cr1. P.C. to quash the said proceeding against them. It is seen that they were charge-sheeted by the respondent police under sections 120.B, 147, 148, 447, 427, 430 and 506(u), I.P.C. on the allegation that they formed themselves into members of an unlawful assembly on 24.3.1986 at 6.00 a.m. to 7.00 p.m. with the common object of committing criminal trespass by entering into the lands of Palaniappan and Natesan and to commit criminal intimidation and in pursuance of the said common object, they trespassed in S. Nos. 649/3 and 649/1 belonging to Palaniappan and Natesan and caused damage to the extent of Rs. 1500 to the tapioco roots, thatched shed and cement pipe lines and also caused diminution of supply of water for agricultural purpose, by damaging the cement pipe lines belonging to them in the said land to the extent of Rs. 1000 and committed criminal intimidation to Palaniappan and Natesan. It is alleged in the affidavit filed in support of the petition by the first petitioner that the said properties comprising in S. No. 649/1 of an extent of 4.95 acres and S. No. 649/2 of an extent of 2.92 acres in Paithur village were owned by one Ellayappa and Poornanathan, that they entered into an agreement of sale, through their power of attorney agent, with the first petitioner and his wife Periyakkal on 14.9.1985 and that ever since that date they are in actual possession and enjoyment of the said properties. One Periasami and four others failed in their attempt to purchase the properties. They began to give trouble to the first petitioner and his wife and attempted to evict them. There upon the first petitioner and his wife along with Ellayappan and Poornanathan filed the suit O.S. 677 of 1985 on the file of the Sub Court, Salem against the said Periasami and four others for a declaration of their title to the suit properties and also for permanent injunction rest raining them and their men from interfering with their possession. Interim in junction was also granted in l.A. 1388 of 1985 in the said suit on 31.10.1985. Defendants 1 to 5 were served through court. Injunction was extended. While injunction was in force, defendants 2 and 3 in the said suit filed a complaint before the respondent police that the first petitioner the power of attorney agent of plaintiffs 1 and 2 and other petitioners herein entered into criminal compliancy and committed trespass, mischief and criminal intimidation as already stated in the charge-sheet. The police on the basis of the said complaint filed charge sheet in C.C. 200 of 1986 on the file of the Judicial First Class Magistrate, Attur. It is further alleged in the affidavit that since possession of the first petitioner and his wife of the disputed properties was recognised by civil Court, and injunction was granted in their favour restraining the complainant in this case from trespassing into the properties the police ought not to have charge- sheeted them for the alleged offences of trespass, mischief, and criminal intimidation and that it is nothing but on abuse of process of court.

(2.) It is contended by the learned counsel for the petitioners that possession is the main ingredient In respect of the charge of trespass, that the petitioners are in possession of the properties, that the civil court has taken cognizance of the matter and granted injunction in favour of the first petitioner and his wife, that injunction was in force of the date of the alleged occurrence and that instead of approaching the Civil Court for proper relief, the private complainant, namely, defendants 2 and 3 in civil suit resorted to criminal proceedings only with a view to harass these petitioners who are 37 in number, by abuse of the process of the court. In support of the said contention, the learned counsel for the petitioners drew my attention to the decision of the Supreme Court reported 10 Trilok Singh v. Santadeo1 That was a case where the dispute between the parties was in respect of purchase of a truck the complainant and a hire purchase agreement was also entered between the complainant and the accused who is a Finance Corporation. As per the terms of the agreement, since the complainant defaulted in payment of an installment, the financier, namely, the accused, who was entitled to terminate the agreement without notice, seized the truck and removed from the complainant. Aggrieved by the same the complaint was filed against the Finance Corporation for offences of criminal conspiracy, dacoity, fabrication and other offences. The accused filed a petition under section 482, Cr1. P.C. to quash the proceeding on the ground that it is clearly an abuse of process of court. To the circumstances, their Lordships held as follows: It was not a case where any process ought to have been directed to be is used against the accused (appellants). On the well-settled principles of law, it was a very suitable case where the criminal proceeding ought to have beer quashed by the High Court in exercise of its inherent power. The dispute raised by the respondent was purely of a civil nature even assuming the facts stated by him to be substantially correct Ultimately the proceedings were quashed and the appeal was allowed. The decision reported in Subramaniam v. Pasupathi2, is a case where the accused was charge-sheeted for offences under sections 447 and 427, I P.C. In a petition to quash the proceedings against the accused under section 482, Cr1. P.C. it was held: There can be no doubt that there is a bona fide dispute with regard to the passage in question. The inherent jurisdiction of the High Court to pass orders necessary to prevent abuse of the process of any court cannot be questioned and indeed it has been clearly expressed in section 482, Cr1. P C. Though the High Court ought not to interfere ordinarily by way of quashing criminal proceedings, yet, as the materials available in the instant case show a bonafide claim of civil right and as the matter is pending in a civil court, it is an obvious duty to interfere in these proceedings, without causing unnecessary harassment or subjecting to face a criminal proceeding since prevention is better than cure. To allow the present proceedings in this case to continue will not in any way advance the course of justice. I had occasion to refer to these two decisions in one of my judgments reported in Ratnakumar Arya v. State of Tamil Nadu Whiteo Ltd,3. In that case, a petition was filed to quash the proceedings on the ground that the dispute relates to civil nature. I have held: On a careful analysis of the entire materials placed before me, I find that the dispute is essentially of a civil nature and by no stretch of imagination can it be said that it would amount to criminal liability. In Ramakrishnan v. Dhanasekar4 Sathar Sayeed, J. held in similar circumstances as follows: parties should not be encouraged to resort to criminal courts in a case of this type in which the point at issue between them is one, which can more appropriately be decided by a civil court by unfolding the panoramic facts and the parties should not be allowed to appease their anger by resorting to criminal proceedings....

(3.) Applying the ratio laid down in the aforesaid decisions to the facts of this case, it is not in dispute that the first petitioner and his wife along with their vendors filed a civil suit before the Sub Court, Salem, against the present complainant and four others, for the reliefs of declaration that they are entitled to the disputed properties and for injunction them and restraining their men from interfering with their possession and enjoyment of the said properties. They have also obtained interim injunction in l.A. 1388 of 1985 on 31.10.1985 and the said Injunction was extended periodically and allowed to continue on 6.12.1985, until further orders. The said order was in force on the date of the alleged occurrence in this case. It is to be noted that possession is the main ingredient in this case. When once possession is found to be not with the complainants and their party and in any event the accused were entitled to be in possession lInd their right has been recognised by civil court and. the complainants and their party were restrained from interfering with the possession of the first accused and his wife, it cannot be said that the accused committed criminal trespass and committed mischief to the crops and pipelines. The dispute is essentially of civil nature. If the complainants and their party were aggrieved with the order passed by the civil court, their remedy is to move the civil court to vacate the injunction. Instead of doing so, they have filed the criminal complaint against the accused alleging criminal trespass, mischief and criminal intimidation in this case. It is to be noted that as rightly pointed by M.N. Moorthy. J. in Subramaniam v. Pasupathi (supra) even in Sinasami Selvanayagam v. King, it has been held that a bona fide claim of right, however ill founded in law, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant and that section 427. I.P.C. is not intended to provide a cheap and expedition method of enforcing a civil right. As already observed, the dispute in this case is essentially of a civil nature. The matter is admittedly pending in a competent civil court. As such, this is a fit case where this Court can exercise the Inherent power under section 482, Cri. P.C. to quash the proceeding to avoid unnecessary harassment to the petitioners and to prevent an abuse of process of court.