Annamalai vs Government of Tamil Nadu and Others

Swamikkannu, J.—The only point raised by the petitioner in writ petition is that when an enquiry has been ordered under the Police Standing

Orders to be conducted either by the Executive Magistrate or by any other Magistrate of the rank of a Sub-Collector or Collector, there should

not be any obstruction for the enquiry being continued, when the same had been started by a competent police officer. This is the submission made

by Mr. R. Subramaniam, learned counsel for the petitioner. It is inter alia contended in the accompanying affidavit sworn to by the petitioner that

on 18-5-1981 the caste Hindus of Melathiruppanthuruthi formed themselves into an unlawful assembly, committed rioting attacked the Harijans

and set fire to the Harijan huts. Number of persons were injured and some of the huts were set to fire. The petitioner is one of the victims who had

been severally injured in the attack, and this was the sequence of an incident that took place on 17-5-1981. The police opened fire to protect them

from the attack on the orders of the Executive Magistrate (Tahsildar, Thiruvaiyaru Taluk). Due to the timely action taken by the police, according

to the petitioner, the Harijan people and their properties were saved. In this connection a complaint was lodged by him and other people to the

police. A case in Neducavuery police station in Crime No. 36 of 1981 for offences under sections 147, 148, 149, 336, 323 and 436, I.P.C. was

registered and several persons were arrested on 18-5-1981 itself. But subsequently till date, no progress has been shown by the police. It is

further alleged that the Collector of Tanjore, second respondent herein, has ordered an enquiry on 19-5-1981 in the above matter by the

Executive Magistrate (Revenue Divisional Officer, Tanjore) the third respondent herein, and the second respondent has ordered the third

respondent to enquire into the matter under the police Standing order 144. As per the procedure laid down in Police Standing Order, 145, a

parallel investigation by the Police should not be done. Therefore several named accused are still at large and the Police have not taken further

action to arrest the accused moving right under their very nose. According to the petitioner, when he approached the 2nd respondent for getting a

copy of the order, he was not furnished with the same. Since he is one of the victims the petitioner stated that criminal justice is being only delayed

to him and the enquiry should continue by the police with respect to the incident.

In the counter-affidavit filed on behalf of the respondents, sworn to by the Joint Secretary to Government, Public Department, it is disclosed that

on 17-5-81 at about 20:00 hours one Karnam of Keelathiruppanthuruthi village of Thanjavur taluk rode on a cycle inside a marriage pandal at the

time of feast in the Adi-Dravida Street of Melathiruppanthuruthi village. This action was resented and questioned by the Adi-Dravidas. Enraged at

this, Karnam went and brought five persons of his community and attacked one Thiruvengadam and his mother (Adi-dravidas). On the complaint

of Thiruvengadam, a case in Naducauvery Police Station Cr. No. 32/81 under sections 147, 323 and 427, I.P.C. was registered against the above

said Karnam and others. Subsequently, Karnam and others again returned to the Harijan Colony with a bigger crowd of caste Hindus of about

500 strong with deadly weapons and resorted to attacking the men and damaging the materials in the Harijan Colony. In the process of the attack,

they caused damage to two tea stalls and one provision shop. Then they caused damage to the betel nut shop and set fire to two houses and one

hayrick - all belonging to Adi. Dravidas. Further six individuals on the side of Harijans and one individual on the side of caste Hindus sustained

injuries. In this connection, a case in Naducauvery Police Station Cr. No. 33/81 under sections 147, 148, 336, 337 and 431, I.P.C. was

registered. It is further submitted that as sequel to an earlier clash that took place between caste Hindus and Harijans on 17-5-81 at

Melathiruppanthuruthi village in Thiruvaiyaru Taluk, a peace talk was convened by the Tahsildar, Thiruvaiyaru on the morning of 18-5-81 at

Melathiruppanthuruthi village. While the talk was going on, Muthiriyars, the caste Hindus gathered in large numbers and threatened to cause

disturbances. The efforts taken by the fourth respondent and the Tahsildar, Thiruvaiyaru, to hold the peace talk failed, and the caste Hindus started

pelting stones on the police party. The crowd also attacked with deadly weapons. They were throwing stones on the huts of the Harijans and

Police party. With great difficulty the two warring groups were separated. The caste Hindus were more aggressive and relentlessly pelting stones

on the police party. The Inspector and 8 police constables were injured in stone throwing. The huts of the Harijans were also set on fire by the

caste Hindus. The situation turned very grave and the fourth respondent gave due warning and declared the crowd numbering about thousand as

unlawful and asked them to disperse. As the crowd failed to respond, lathi charge was resorted to by the Police party. Due to the lathi charge 12

persons sustained injuries. But it did not have the desired effect. The crowd again heavily indulged in stone throwing on the police party. In order to

save life and property of Harijans and to save the police personnel from further on slaught and on the orders of Taluk Magistrate, Thiruvaiyaru two

rounds of buck shots were fired by Armed Reserve Police Constables. In the police firing four persons sustained simple injuries. This resulted in

subsequent ordering of a magisterial enquiry under O. 144(3) of Police Standing Orders. It is alleged that as per the provisions contained in P.S.O

144(3) in every case in which police use fire arms, the Collector of the District shall order an enquiry by an Executive Magistrate, except where the

incident is so trivial in nature as obviously not to necessitate any such special enquiry. In the instant case, the firing of two rounds of buckshots is an

aftermath of an earlier clash between two groups of different communities. Due to the opening of fire by the police 4 persons sustained injuries.

Similarly in the earlier lathi charge, twelve persons sustained injuries. The injured persons belong to caste Hindus (Muthiriyar community). The

Magisterial Enquiry is of non-judicial character and is purely a fact finding enquiry to justify the need for opening of fire or otherwise. Only in trivial

cases the Magisterial enquiry can be dispensed with after obtaining the orders of Government. Considering the presence of an element of

communal nature in this incident and also considering the fact that several persons sustained injuries in the earlier lathi-charge and subsequent police

firing, there is every justification in the ordering of a Magisterial enquiry in the present case. All other allegations of the petitioner are devoid of

merits and are untenable in law.

The point for consideration in this writ petition is whether the petitioner has brought sufficient grounds to light so as to give the relief prayed for

by him. The main point urged on behalf of the petitioner is that in view of the provision under S. 3, Cr.P.C. several Courts are vested with powers

of criminal jurisdiction administering criminal justice and exercising jurisdiction vested with the same and as such when once investigation has been

done under the provisions of the New Code it should never be got obstructed because the enquiry has been ordered to be conducted under O.

144(3) of Police Standing Orders. In support of this contention no authority has been produced by the learned counsel for the petitioner. But he

had taken me through the provisions under S. 3, Cr.P.C.

It is the fundamental principle of Criminal Jurisprudence that the State has got authority to withdraw the prosecution in any case for the reasons

stated by it, the aim of which is only to bring peace in the locality for the public good. Several reasons may be offered for withdrawing the

prosecution after filing the charge-sheet into Court or even after sufficient progress has been made in the trial and the Government is at liberty to

withdraw the prosecution. This process is recognised by the representation on behalf of the State that the State has decided to withdraw the

prosecution with respect to the case. Even the Advocate-General of the State has got power to enter Nolle Prosqui and stop even the trial by

disclosing to the Court that the prosecution launched against the accused is withdrawn or against the entire lot. It has been so done in a case

against M. K. Thiyagaraja Bagavathar, ILR (1946) Mad 389 : 1946 47 Cri LJ 785. The then Advocate-General by entering Nolle Prosequi

estopped the prosecution in that case so far as Sriramulu Naidu, one of the accused is concerned. The same procedure is also applicable to the

present procedure when the new criminal procedure has come into existence. So when the State is interested in stopping the prosecution against

some or all the accused so far as this case is concerned, there cannot be any obstruction for withdrawing the prosecution or for an order being

issued for stopping the further prosecution in the criminal case by the police or for directing the police to stop the investigation for certain time so as

to see that such an action taken does help in creating an atmosphere avoiding tension in the locality. These are the basic features underlying the

above concepts involved in both the substantial and procedural law relating to crimes. In this view, a careful and anxious scrutiny of the contents of

the affidavit accompanying the petition does not show that there are grounds for granting the relief prayed for in this writ petition.

Another contention that is raised on behalf of the petitioner herein by Mr. R Subramaniam is that the enquiry under S. 3, Clause 4 of Cr.P.C.

cannot be conducted by Executive Magistrate because there has been complete demarcation of the powers of the Executive Magistrates and

Judicial Magistrates contemplated under the concepts of the provisions available in the Cr.P.C. There is nothing prohibiting the Executive

Magistrate to enquire into a matter which culminated in the use of firearms or any other incident or the basis for the reasons of the incident. Since

there is no specific provision for an enquiry to be conducted by the Executive Magistrate, this Court does not uphold this contention. There is no

merit in the writ petition. Hence the writ petition is dismissed with costs. Advocate''s fee Rs. 500/-.

Petition dismissed.