Thankappan and others vs Thankaraj

Padmini Jesudurai, J.—The petitioners against whom the respondent had presented a complaint to the Judicial First Class Magistrate,

Kuzhithurai, alleging offences under Ss. 147, 148, 447, 506, 427, 379 and 506 Part II, I.P.C., which had been forwarded by the learned

Magistrate to the concerned police, who in turn had registered it as Crime No. 361 of 1985 of Arumanai Police Station for the same offences,

invoke the inherent powers of this Court to quash the above proceedings.

Mr. Anthony Xavier, learned Counsel for the petitioners contends that the averments in the complaint to the effect, that trespass had been

committed and standing trees have been cut and removed, relate to certain items of property regarding which petitioners 1 and 2 had filed a civil

suit against the respondent in the Court of the District Munsif, Kuzhithurai and that in view of the above civil dispute between the parties regarding

the ownership and possession of the identical property, investigation by the police is uncalled for.

Per contra, Mr. Paul Vasanthakumar, learned Counsel for the respondent contended that there is some difference in the survey numbers

mentioned in the plaint and in the complaint and this Court should not generally quash the investigation merely because a civil litigation is pending.

Learned Counsel relied upon a decision of this Court in Masilamani v. G. Ranganathan and another.

It is true that this Court is generally reluctant to quash investigation into crimes. The police have a duty to investigate into cognizable offences and

merely because a civil litigation, is in some way connected with the issue, criminal investigation cannot be stopped. As rightly contended by the

learned Counsel for the respondent, determination of civil rights by the civil forum would be independent of investigation into crimes committed

with reference to identical properties. However, this would depend upon the facts of each case and no hard and fast rule can be laid down. If the

main ingredients of the offences into which an investigation is made, depend upon the determination of civil rights, then it is desirable that the Civil

Courts are permitted to decide the issue. Requiring the police to go into complicated questions of civil rights, in order to find out whether the

ingredients of the offences are made out, would be beyond the scope of a police investigation into crimes.

In the instant case, according to the complaint the respondent is the owner of and is in possession of 6 acres 66 cents comprised in survey Nos.

2159/19 and 2159/21, the Resurvey number being 433/2. It is also mentioned that in the same place the residential house of the respondent is

situated. The allegation in the complaint is that on 20th November, 1985 at about 11 a.m. the petitioners trespassed into the rubber garden in the

above property and cut and removed four standing rubber trees and when the respondent tried to interfere, the petitioners criminally intimidated

him. The total loss was estimated at Rs. 1,000. A copy of the plaint in O.S. No. 266 of 1984 on the file of the District Munsif s Court, Kuzhithurai,

shows that petitioners 1 and 2 are Plaintiffs 5 and 4 respectively. The respondent in the first defendant in the said suit. The suit is laid for a

declaration and injunction regarding ''B'' schedule property which comprises of Survey Numbers 2159/19 and 2159/21B, the Resurvey Number

being 431/5, and the residential house situated therein. The suit has been filed on 18th June, 1984. petitioners 1 and 2 trace their claim to the

above property, through an oral lease and also an agreement of sale from Plaintiffs 1 to 3 who in turn trace their claim through a partition of the

year 1950. Though there is some slight difference in the survey numbers, it can be taken that substantially the property regarding which the civil suit

has been filed is the same as that regarding which offences are said to have been committed. The major offences complained of are under Ss. 447

and 379, I.P.C., namely, trespass and theft. The question as to whether an offence under S. 427, I.P.C., is committed, will depend upon the

question as to whether the petitioners are or the respondent is, in possession of the property. The question as to whether an offence under S. 379,

I.P.C., is committed with reference to the rubber trees, will also depend upon the fact, as to who is in possession of the property. While a civil suit

is pending with reference to these questions, it is not desirable that the police should determine the respective claims of the parties and give even a

prima facie finding regarding ownership and possession. Apart from that, the other offences are only under Ss. 147, 148 and 427, I.P.C., which

also, to some extent, depend upon the question as to who is in possession of the property. The only other offence complained of, is under S. 506

Part II, I.P.C., it is therefore obvious that the offences alleged to have been committed, revolve round the question as to who is in possession of

the scene property. This would be properly determined by the civil Court. It is also represented that a similar complaint had been earlier presented

by the respondent to the police who, after investigation, had dropped the matter as the dispute was of civil nature. Whatever that be, in view of the

nature of the allegations made in the complaint and in view of the fact that all the offences depend upon the determination of the civil rights of the

parties, I feel that investigation by the police is not necessary. The Civil Court will determine the rights of the parties. Under the above

circumstances, investigation into Crime No. 361 of 1985 on the file of Arumanai Police Station registered on the complaint forwarded by the

judicial First Class Magistrate, Kuzhithurai, is quashed.