S. Ilandirayane vs State

A. Ramamurthi, J.—Petitioner, who is the accused in C.C.No.434 of 2000 on the file of Judicial Magistrate No.II, Cuddalore, has filed this

petition u/s 482 of Criminal Procedure Code to quash the proceedings pending against him.

The case in brief is as follows:- The petitioner and two others have been charge sheeted for offences punishable under sections 408, 468, 471,

477A, 420 and 384 IPC and non-bailable warrant was also issued against him by the learned Magistrate. His father Sethuraman was working as a

Tamil Pandit in the Education Department of Pondicherry Government. He was given an option for seeking French citizenship and he accepted the

same. The petitioner has also obtained French citizenship and in 1990 he left India and after serving compulsory service in the French Army, he

worked in various places. Since 1995 he has been working as a Laboratory Assistant. His father returned to India during the end of 1995 and he

was approached by the defacto complainant Sekar, who is a relation, to become a partner in his firm and to help the business, namely, ''Devnath

Earth Movers'' and ''Jayaram Aqua Farms''. His father managed the business between December 1995 and September 1997. There was civil

dispute between his father and Sekar relating to sharing of profits. They also approached a Chartered Accountant firm for settlement. His father

had also expressed inability to help for getting French citizenship to the sons of Sekar and to arrange for their education in France. This has

infuriated Sekar to concoct a false criminal case against his father and others and ultimately implicated them. The said Sekar has given a complaint

that in the house of one Arumugam on 30.11.1997, the signature of the said Sekar was obtained in an agreement under duress and threat of life.

Actually Sekar had signed the agreement on his own volition and in the presence of independent witnesses. He also sent a legal notice dated

11.12.1997. Sekar also filed a private complaint before the learned Judicial Magistrate II, Cuddalore on 16.09.1998, which was referred to the

respondent police and first information report was registered on 19.09.1998. Sekar had mentioned the name of the petitioner at the end of

statement u/s 161 of Criminal Procedure Code and witness Arumugam also stated to the same effect. The 2nd respondent Thiru Logayan, Sub

Inspector of Police went ahead including the name of the petitioner also, knowing that there is no evidence against him.

On 30.11.1997 the petitioner was not in India and he was in France. He visited India on 18.06.1997 and left on 17.08.1997. Even in the

lawyer notice dated 11.12.1997, the name of the petitioner does not find a place. Ravi''s name was also originally mentioned, but the respondents

police had ultimately dropped that name also. The complainant hopes that by implicating the petitioner as well as his family as they are French

citizens, they will come for settlement. The petitioner has nothing to do with the partnership dispute and he is not concerned with the alleged

occurrence. The first information report also does not contain his name. The defacto complainant in earlier proceedings also stated only the names

of Ravi and Krishnaraj, who had abducted him from Cuddalore to Pondicherry in December 1997 and coerced him to sign blank stamp papers

and he has not mentioned the name of the petitioner. Even in the charge sheet, the name of the petitioner is given as Ilanchezhian. His age is also

mentioned wrongly. The statements also reached the Court only after two years. His father already filed a petition to quash during the pendency of

the first information report in Crl.O.P.No.18794 of 2000; but immediately the 2nd respondent police officer filed the final report u/s 173 of

Criminal Procedure Code on 09.10.2000. Even though the name of the petitioner is wrongly given, the petitioner has filed this petition by way of

abundant caution. Roping the petitioner as an accused will cause hardship to him as well as the family. Hence, the petition.

The learned Government Advocate (Criminal Side) appearing for the 1st respondent opposed the petition and contended that only after proper

investigation, charge sheet was filed. Moreover, the statements of Sekar and Arumugam recorded during investigation contained the name of the

petitioner and as there is prima facie material to proceed against him, section 482 of Criminal Procedure Code cannot be invoked. It is open to the

petitioner to raise the same either at the time of framing of charge or during the trial and the petition is liable to be dismissed.

The 2nd respondent, Inspector of Police was already served, but neither he appeared nor any counsel appeared.

Heard the learned counsel for the parties.

The points that arise for consideration are

(1) Whether there is prima facie case to proceed against the petitioner ?

(2) Whether the proceedings against the petitioner in C.C.No.434 of 2000 are liable to be quashed ?

(3) To what relief ?

Points: The petitioner Ilandirayane, son of Settouraman, a French citizen has filed this petition u/s 482 of Criminal Procedure Code to quash the

proceedings in C.C.No.434 of 2000 on the file of Judicial Magistrate No.II, Cuddalore. The petitioner is said to be aged about 33, a French

National of Indian Origin is working as Lab Assistant, IFFI, Paris. The learned counsel for the petitioner stated that the name of the petitioner is

wrongly mentioned as Ilanchezhian in the final report, whereas his name is Ilandirayane. Her has been charged for the alleged offences under

sections 384, 471 and 420 IPC. The 1st accused is his father, and he has been charged with offences under sections 408, 461, 477A and 384

IPC.

There was civil dispute between the father of the petitioner and the defacto complainant Sekar. According to the prosecution, the occurrence

took place on 30.11.1997 in the house of one Arumugam, wherein the defacto complainant was kept in wrongful confinement and under threat

and coercion his signature was taken in the agreement by all the accused concerned in the case. The defacto complainant Sekar sent a legal notice

on 11.12.1997 and curiously in the notice, the name of the petitioner is not mentioned. The persons named in the legal notice are only Sethuraman,

Ravi and Krishnaraj. Subsequently, a private complaint was filed by the defacto complainant before the learned Magistrate, who forwarded the

same to the police for investigation u/s 156(3) of Criminal Procedure Code and based upon which, a case was registered in Crime No.958 of

1998 on 19.09.1998. As per the first information report, the occurrence took place in the first week of December 1997. The statements of Sekar

as well as Arumugam were said to have been recorded on 20.09.1998 and they were sent to the Court only after two years. Only these witnesses

have implicated the name of the petitioner alleging that he was also present at the time of occurrence. It is also not in dispute that the 1st accused

who happened to be the father of the petitioner already filed a petition when the first information report was pending and immediately thereafter,

the charge sheet was filed by the 2nd respondent hurriedly. The affidavit filed by the defacto complainant in another proceedings was also relied

on, wherein relating to the present occurrence the name of the petitioner was not mentioned.

The learned counsel for the petitioner relied upon number of circumstances to show that the petitioner has been falsely implicated in the case

and there is no ground to proceed against him and as such, the proceedings are liable to be quashed against him. The first legal notice dated

11.12.1997 was sent by the defacto complainant, but he did not mention the name of the petitioner. Similarly, the private complaint filed by the

complainant before the learned Magistrate also does not contain the name of the petitioner. In fact, the defacto complainant filed a quash petition in

Crl.O.P.No.10008 of 2000 relating to the complaint given by the father of the petitioner and relating to the present occurrence, he had not

mentioned the name of the petitioner as one of the persons, who had abducted him. The petitioner also filed copy of the passport containing the

entries to establish that he had visited India on 18.06.1997 and returned back to France on 17.08.1997. The original passport was also shown to

the Court at the time of hearing of the petition. It clearly established that on 30.11.1997, the date of the alleged incident, the petitioner was not in

India.

It is patently clear that the investigation conducted by the 2nd respondent is perfunctory and is one sided. When the petitioner happens to be a

French National, it is the duty of the Investigation Officer to investigate the case thoroughly to find out whether the petitioner was in India at the

relevant point of time. There is nothing on record to show that the Investigation Officer had examined the Passport Officials or any authorities to

convince himself that the petitioner was available in India and he could have participated in the incident. The partnership was admittedly between

the defacto complainant and the father of the petitioner. When the passport entries clearly established that the petitioner was not in India on

30.11.1997, it is prima facie clear that he had been deliberately introduced as an accused in the case by the Investigation Officer for reasons best

known to him. Apart from that, there are enough circumstances to show that the name of the petitioner has been introduced at a belated stage. In

fact, the defacto complainant himself has not mentioned the name of the petitioner either in the legal notice sent ten days after the occurrence or in

the subsequent proceedings. Much weight also cannot be given to the statement recorded from Sekar as well as Arumugam and although they

were recorded on 20.09.1998, they were admittedly sent to the Court only in October, 2000. Even at the time of filing the final report by the

police, these statements were not filed and the final report was returned by the Court with an endorsement and only thereafter it was complied

with.

The learned counsel for the petitioner relied on the decision reported in State of Karnataka Vs. L. Muniswamy and Others, , wherein it was

observed as follows:

In the exercise of the wholesome power under S. 482, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing

the proceeding to continue would be an abuse of the process of the Court or that the ends of justice requires that the proceeding ought to be

quashed.

For the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses, comparatively wider

discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a

conviction can be said reasonably to be possible"".

Reliance is also placed on Jugal Kishore and Others Vs. State of Madhya Pradesh, , wherein it was held as follows:

Investigation of allegations made against a person is a serious and solemn exercise undertaken by the Police Officer as on the result of this

investigation hangs the fate of ''personal liberty'' of the person which is constitutionally guaranteed. A dishonest, unfair or one-sided investigation

would, therefore, violate the constitutional guarantee and justify interference by a Court of law.

F.I.R.by itself, is not sufficient to frame charge and put the accused on trial. This report cannot be used as substantive or primary evidence of the

truth of its contents and is, therefore, never treated as a substitute for evidence given on oath. It is also well settled that where there is no other

evidence of facts mentioned in the FIR, the accused person cannot be convicted. The use of the words ''may take cognizance''.

To put an accused person to a long lasting trial on an incomplete and one-sided investigation and promise to consider full facts only when they are

brought before the Court at the defence stage amounts to ignoring default of the Investigating Officer and clothe him with the authority to harass

such a person. It may even amount to judicial sanction of substitution of ''rule of law'' by the Police Raj and subversion of our constitutional ideals"".

It has also been held in Vostok Laboratories Vs. The Controller, Food and Drug Administration, that ""ends of justice are higher than the ends

of law. Prosecution, which involves time and torture, cannot be sustained when the allegation, taken at their face value without any plus or minus in

that, do not constitute the acts or omissions punishable under the law. In such case, the prosecution becomes liable to be anaesthetized as its

infancy"".

It has been held in Pappu alias Mohammad Zalil and Another Vs. State of Madhya Pradesh, as follows:

it is true that inherent power of the Court has to be exercised sparingly and only for securing the ends of justice, but on this premise it cannot be

said that merely because the petitioners have a right to raise objection and plead at the time of framing of the charge that there is no sufficient

material for framing of any charge against them, they should be debarred from approaching this Court, at an earlier opportunity of time when the

Magistrate has taken cognizance of the offence and summoned them to appear in the Court. I am of the view that under the circumstances when

there appears absolutely nothing on record against the accused, there would be no justification in allowing the criminal proceedings to continue as,

obviously, this approach by itself would tantamount to an abuse of the process of the Court, and certainly under these circumstances the power u/s

482, Cr.P.C.can be exercised"".

It is therefore clear from the aforesaid decisions and discussion that a proceedings against the accused has to be quashed when there is

material to come to a conclusion that there is no ground to proceed against him and the evidence available on record even unrebutted would not

end in conviction. I am of the view that the continuance of proceedings against the petitioner is nothing but an abuse of process of Court and as

such, interference is called for by invoking section 482 of Criminal Procedure Code.

The learned counsel for the petitioner next contended that non-bailable warrant has been issued by the learned Magistrate mechanically without

any application of mind and as such, it has to be interfered with. Section 87 of Criminal Procedure Code relates to issue of warrant in lieu of, or in

addition to, summons. Sub-clause (a) clearly indicates that only when he has absconded or will not obey the summons, then only a warrant can be

issued. Moreover, a bare reading of section 87 clearly establishes that only after recording the reasons in writing, a warrant for the arrest can be

issued. In the present case, only in the final report, the name of the petitioner has been introduced for the first time by the Investigation Officer. The

name of the petitioner was also shown as an absconding accused. As adverted to, the petitioner is a French citizen and he is working there. There

is absolutely no material to come to the conclusion that he was available in India on the date of the occurrence i.e.30.11.1997. This being so, on

what basis, the Investigation Officer had shown the petitioner as an absconding accused and unfortunately the learned Magistrate had also issued

non-bailable warrant without application of mind.

The learned counsel for the petitioner relied upon the decision reported in Ahmed Ali Vs. State of Assam and Others, , wherein it was held as

follows:-

The power of issuing summons and warrants is a judicial power and has to be exercised judiciously by the Magistrate himself on consideration of

the facts and circumstances of the case. Such judicial powers cannot be exercised in an arbitrary, perfunctory or cavalier manner, nor their exercise

left to the Bench Assistants.....The Court should exercise due care to satisfy itself, upon the materials before it, that it was really necessary to issue

a warrant.

Recording of reasons, in writing"" is an essential requirement for exercise of the power to issue warrant, to ensure judicious exercise of this power

this section contains the statutory requirement of recording the reasons in writing before issue of a warrant for arrest of a witness in lieu of

summons. If this essential requirement is ignored, it cannot be said that the issue of warrant was in accordance with law.

Although the decision relates to summoning of the witnesses, the same analogy can be applied in the case on an accused. When the language of

Section 87 is clear and there is no ambiguity, a warrant can be issued only if the Court comes to the conclusion that he is likely to abscond or he is

evading the service of summons. When the petitioner is a French citizen and is gainfully employed there and the absence of any material and that

too, without any reason the issue of non-bailable warrant also appears to be mechanical, it is not a proper order. It should be borne in mind that

before issuing a warrant, it is the duty of the learned Magistrate to write reasons for issuing a warrant and he should comply with the legal

requirements under sections 87 of Criminal Procedure Code. Hence, these points are answered accordingly.

For the reasons stated above, the petition is allowed and the proceedings pending against the petitioner in C.C.No.434 of 2000 on the file of

Judicial Magistrate No.II, Cuddalore is quashed. The issue of non-bailable warrant against him is also cancelled. Consequently,

Crl.M.Ps.No.5253 to 5255 of 2001 are closed.