M.N. Subramanian vs S. Pasupathy

M.N. Moorthy, J.—This is a petition filed by the accused M.N. Subramanian, who was accused of committing offences under Ss. 447 and

427, I.P.C., praying this Court to call for the records and quash the proceedings in C.C. No. 680/80 on the file of XVII M.M. Saidapet, Madras.

The facts leading to the filing of the present petition are as follows. The respondent Pasupathy filed a complaint against the petitioner (accused)

alleging that the petitioner committed offences of criminal trespass and mischief. The respondent is the Power of Attorney agent of one, S.

Gopalan. Premises No. 15, D'' Silva Road, Mylapore, Madras, belonged to the said Gopalan and the respondent is looking after the said house

and residing there along with his sister and brother-in-law. Premises No. 14, D'' Silva Road, also belonged to the respondent''s principal, S.

Gopalan. By a sale deed, the respondent as Power of Attorney Agent conveyed the house bearing No. 14 D'' Silva Road, in favour of one Mrs.

Vidya Sankaran. A passage 15''3"" in breadth and 72'' 3"" in length separates the two buildings bearing Nos. 14 and 15, D''Silva Road. In the

Schedule appended to the sale deed there is a recital that the passage 12'' in breadth was being conveyed. Mrs. Vidya Sankaran in her turn sold

the house to the petitioner by a sale deed, dt. 26th October, 1979. As the respondent fount that the petitioner was trying to forcibly occupy the

portion of the passage belonging to him, he caused a lawyer notice, dt. 6th January, 1980 to be sent. The Petitioner replied to the said notice. The

respondent then put up a barbed wire fencing in the second week of January, 1980, in the passage allowing enjoyment of 12"" passage to the

petitioner, consistent with the recital in the sale deed. The fencing indicated the boundary line that separated the two premises, Nos. 14 and 15, D''

Silva Road.

According to the respondent, on the morning on 18th January, 1980, the petitioner in the company of his father and 4 or 5 workmen trespassed

into the respondent''s place, pulled out the wire fencing and threw it inside the respondent''s land. Casuarinas poles numbering 16 were also pulled

out and thrown. The garden plants that had been planted alongside the compound were all damaged by the petitioner and his men. In terms of

money, the loss sustained by the respondent as a result of the acts of the petitioner is of the value of around RS. 300. On 28th January, 1980, after

ten days of the alleged occurrence, the respondent filed a complaint before the court alleging that the petitioner has committed offences under S.

447 and 427, I.P.C. The case was taken on file. The present petition is filed by the petitioner (Accused) under S. 482, Cr. P.C. to quash the

proceedings pending before the XVII M.M, Saidapet.

The learned Counsel for the petitioner contended that the respondent had executed the sale deed in favour of Mrs. Vidya Sankaran with the

passage of width 15''3"" as shown is the plan annexed to the said sale deed. The petitioner and his predecessors-in-title have been enjoying the suit

property without any let or hindrance. The petitioner has, a right to be in possession without any disturb I and the respondent has filed a false

complaint with a view to humiliate and harass the petitioner. There is a bona fide dispute with regard to the property and a civil suit has also been

filed by the petitioner in the City Civil Court. Hence it is contended by the learned Counsel that the proceedings pending against the petitioner

herein are liable to be quashed.

The inherent jurisdiction of this 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 S. 482, Cr. P.C. After perusing the complaint and the petition, I have no doubt there is a bona fide dispute with

regard to the passage in question. It should be noted that the respondent himself has signed his name in the plan with the passage width 15''3

attached and handed over to the petitioner as part of the title deeds. The petitioner has filed a civil suit in the City Civil Court, Madras, in C.S. No.

2343 of 1980 for injunction and other relief''s. It has been brought to my notice that the respondent sought to get an injunction in the writ petition

filed in this Court restraining the petitioner from encroaching the disputed passage, but failed to secure it. On the request of both sides, a

Commissioner has been appointed by the Civil Court and the civil suit is also ripe for trial.

The learned Counsel for the petitioner brought to my notice a decision of the Supreme Court in Sardar Trilok Singh v. Saiya Deo Tripathi

(1979) 48 S.C.C. 299, wherein their Lordships held that the proceedings should be quashed if the dispute was essentially of a civil nature or

otherwise it would be an abuse of process of court. Another decision cited was Sinnasamy Selvanayagam v. King (1951 M.W.N. (Cri.) 117

wherein 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. S. 427, I.P.C. is not intended to provide a cheap and expeditious method of enforcing a

civil right.

Even though the offence alleged in this case is stated to have taken place on 18th January, 1950 morning, no report has been given to the police.

After a long delay of ten days, a complaint was filed in court on 28th January, 1980 and there is no explanation offered for this delay on behalf of

the respondent.

I am satisfied that 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 bona fide 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 of 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. In the result, the proceedings in C.C. No. 680 of

1980 on the file of the VII MM., Saidapet, Madras, are liable to be quashed and it is hereby quashed. The petition is allowed.