Ashok Choraria, and another vs Inspector of Police (Crime)

Jayarama Chouta, J.—The petitioners, who are four in number, who have been arrayed as the accused in Cr. No. 305/93 before the Vanur

Police Station, have filed this Criminal Original Petition u/s 482, Cr.P.C., for quashing the proceedings in Cr. No. 305/93.

The allegations in the Criminal Original Petition are that the petitioners were the owners of the lands measuring in all four acres bearing different

survey numbers which have been sold in favour of petitioners 2 and 3 under a sale deed dated 25-3-1992 for valid consideration of Rs. 71,500/-.

The petitioners 2 and 3 entered into possession and enjoyment of the lands including the standing crops of casuarina trees. The patta for the

property was transferred in their name and they have been in possession and enjoyment of the same since then. One Elumalai son of Gopal

Goundar of Erayur village, who wanted to purchase the lands from the first petitioner and his daughter and could not succeed as the price offered

by him was far below the price paid by the petitioners 2 and 3 and was aggrieved against the petitioners and was giving unnecessary trouble by

coercing them to depart with the possession of the property. He issued false notice claiming to be a tenant under the first petitioner and his

daughter, which was suitably replied by the petitioners through their counsel. On 5-3-1992 the petitioners 2 and 3 filed a suit in O.S. No. 156 of

1993 on the file of the District Munisif''s Court, Tindivanam for a declaration and injunction against the said Elumalai. They also filed an application

for temporary injunction. The District Munsif granted an interim injunction in I.A. No. 742 of 1993, restraining the said Elumalai from interfering

with the petitioner''s possession and enjoyment of the lands pending disposal of the suit. The said interim injunction was made absolute on 10-6-

1993. In the meantime, the said Elumalai preferred a petition u/s 145, Cr.P.C., against the petitioners before the Executive Magistrate, Vanur. The

matter was referred by the Executive Magistrate, to the Sub-Inspector of Police, Vanur Police Station for enquiry and report. When notice about

the enquiry was sent to the petitioners, the petitioners 2 and 3 sent a detailed reply on 26-5-1993 to the Sub-Inspector as well as the Executive

Magistrate bringing to the notice the interim injunction granted earlier and confirmed later on 10-6-1993 by the Civil Court. Thereafter the

Executive Magistrate dropped the proceedings.

After failing in all his attempts the said Elumalai filed a complaint in STC No. 259/93 on the file of the Judicial Magistrate No. II, Tindivanam

against the petitioners and one Shanthi, the daughter of the first petitioner as well as two others alleging offences punishable under Sections 506(1)

and 323, I.P.C. The said complaint was taken on file on 5-3-1993 and is pending. The next hearing was posted on 15-9-1993. In the meantime

the said Elumalai filed a complaint of theft u/s 379, I.P.C., on 23-7-1993, before the respondent which is pending investigation.

The petitioners have requested this Court to quash the said first information report on the ground that having regard to the fact that the

petitioners are in possession and have obtained injunction, there cannot be any theft of any materials from their own lands. The petitioners''

Advocate further contended that allowing this first information report to continue will amount to abuse of the process of Court and in the interests

of justice the first information report should be quashed.

I have been taken through all the documents and the notice issued between the parties.

The learned Government Advocate tried to support by contending that the matter is still pending in the initial stage and the High Court should not

quash the first information report. He has invited my attention to the complaint lodged by the said Elumalai. In the complaint Elumalai has not at all

mentioned about the civil dispute and the injunction granted by the Court. Admittedly Elumalai is the defendant in the said suit and an injunction

order is operating against him. If that is so, it is difficult to understand how the accused petitioners could have committed theft of casuarina trees

from their own lands.

It is true that in exceptional cases the High Court will exercise its power u/s 482, Cr.P.C., to quash the first information report. Here is a case

where on the allegations of the first information report no offence of theft has been made out. All the documents and materials to which the

complainant was a party has not been placed before the police at the time of filing the first information report. He purposely suppressed these

materials in the complaint lodged before the police.

The learned counsel for the respondents-State has invited my attention to a decision In Thangavel Udayar v. State of Tamil Nadu, 1989 Mad

LW (Cri) 204. In that decision the police after receiving the complaint after holding investigation have filed a charge-sheet after collecting materials

against the accused. At that stage, the accused filed a petition u/s 482, Cr.P.C. The Court has held that having regard to the materials collected by

the police a distinction between the legal right to possession and actual possession has to be made. In that case the criminal trespass and the

offence of theft were committed against the person, who was in actual possession of the property. Hence the decision cited by the learned

Government Advocate is of no avail to him in the present case. In the present case, even if we take into consideration all the materials they do not

constitute any offence of theft. Under the circumstances, I feel that allowing the investigations to continue will be nothing but abuse of the process

of law and waste of public time and money. Under these circumstances, I allow this Criminal Original Petition and quash the proceedings pending

before the respondent in Cr. No. 305/93.

Petition dismissed.