Anthoniammal vs The State

T.S. Sivagnanam, J.—This Revision Petition filed under Sections 397 & 401 of the Criminal Procedure Code, is directed against the Order dated 14.8.2008, in C.M.P. No. 24 of 2008 in S.C. No. 155 of 2008, on the file of the Assistant Sessions Court, Sankari. The said Petition in C.M.P. No. 24 of 2008 was filed by the Petitioners under Section 227, Cr.P.C., to discharge them from the case on the ground that no prima facie case is made against them.

The Respondent Police registered a case against the Petitioners in Crime No. 221 of 2007, for alleged offences under Section 3 of the Tamil Nadu Public (Prevention of Damages and Loss) Act (PPD Act) and Section 506(ii), I.P.C., on the basis of Complaint given by one Subramani, who was the President of the Village Panchayat.

The case of the Prosecution is that the Village Panchayat had provided a bore well in the village for the public and the underground pipeline was laid in the land of one Palanisamy, who sold the land to the husband of the First Petitioner. It is stated that the First Petitioner sought for providing separate connection to her house, which is said to have been refused and therefore, she demanded for removal of the underground pipeline. It is alleged that on 9.9.2007, the First Petitioner caused damage to the pipeline, which was reported to the Panchayat Clerk and on 11.9.2007, the Complainant-Subramani, Panchayat President, the Vice-President of the Panchayat and the Panchayat Clerk went to the spot and questioned the First Petitioner as to who damage the pipeline. It is further the case of the prosecution that the First Petitioner stated that she damaged the pipeline and would cause further damage, if it is required. It is alleged that during the said time, the Petitioners 2 & 3 intimidated the Complainant with dire consequences.

The Respondent Police filed the Final Report before the Judicial Magistrate-I, Sankari and the case was committed to the Assistant Sessions Judge, Sankari and taken on file as S.C. No. 155 of 2008. The First Petitioner/A1 was charged under Section 3(2) of the PPD Act, the Petitioners 2 & 3/A2 & A3 were charged under Section 2(i) of the said Act read with Section 109, I.P.C. and under Section 506(ii), I.P.C. Thereafter, the Petitioners filed the Petition for discharge, which came to be dismissed by Order dated 14.8.2008, which is challenged in this Criminal Revision Case.

Mr. N. Manokaran, learned Counsel appearing for the Petitioner submitted that the Court below failed to take note that there is no legal evidence to sustain the case of prosecution for a charge under Section 3(ii) of the PPD Act and 506(ii), I.P.C. and the prosecution is an abuse of process of law. Further, it is submitted that Section 3(ii) of the PPD Act has no application to the facts of the case and even assuming that there are materials, the Petitioners can be charged for the alleged offence under Section 430, I.P.C. Therefore, the prosecution under Section 3(ii) of the PPD Act has to be quashed. Further, the learned Counsel submitted that there is no material on record to sustain the charge under Section 506(H) and the mere act of the Accused is not sufficient to sustain the Complaint, unless the act of threat has caused fear in the mind of the Complainant and in this regard, there is no evidence, therefore, Section 506(ii), I.P.C. is not attracted.

Further, it is submitted that on a perusal of the statements recorded under Section 161, Cr.P.C., it is seen that the allegations are hearsay and not supported by legal evidence. Further, the learned Counsel submitted that in the Petitioner's Discharge Petition, the Court while accepting that Section 3(i) of the PPD Act is not attracted, erroneously proceeded to conclude that Section 3(ii) read with Section 109 and Section 506(ii), I.P.C. is attracted and the findings of the Court below is wholly unsustainable.

The learned Counsel for the Petitioner placed reliance on the decision of the Hon'ble Supreme Court in the case of Shri Ram Vs. The State of U.P., , in support of his contentions that it is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime, intentional aiding and therefore, active complicity if the gist of the offence of abetment under the Third Paragraph of Section 107. Reliance has been placed on the decision of the Hon'ble Supreme Court in the case of the Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao, , as regards the scope of Section 227, Cr.P.C. The learned Counsel further placed reliance on the decision of this Court in the case of R. Ramesh v. State of Inspector of Police, 2010 (2) MLJ (Crl) 12, and submitted that in the absence of legal evidence to show that the words uttered by Accused annoyed others, it cannot be said the ingredients of offence are made out and therefore, the proceedings have to be quashed.

Mr. C. Iyyappa Raj, learned Government Advocate appearing for the Respondent, while seeking to sustain the Order passed by the Court below, submitted that the Court below considered the statements of witnesses and recorded a clear finding that the provision of Section 3(ii) of the Act is attracted and the Court below is fully empowered to alter the Section, at the time of framing the charge, which is attracted by considering the evidence available and the provisions of Section 3(ii) of the PPD Act is clearly attracted, as the act of the Accused is with regard to damaging of supply of water to the public. Therefore, the impugned Order is perfectly valid and fully justified.

Heard the learned Counsels appearing for the parties and perused the materials available on record.

The incident as regards the damage to the pipeline is alleged to have been committed on 9.9.2007. On 11.9.2007, when the Complainant, the President of Panchayat, Vice-President of the Panchayat and Panchayat Clerk went to the spot, it is stated that 2nd & 3rd Accused criminally intimidated them. The learned Counsel made elaborate reference to the statement of Complainant-Subramani, the statement of the Vice-President of Parisuthananthan, statement of the Panchayat Clerk G. Manoharan and submitted that none of the utterances attracted the offences under Section 3(ii) of the PPD Act read with Sections 109 & 506(ii), I.P.C. and even as per the Complaint, the incident is said to have been occurred on two dates viz., 9.9.2007 & 11.9.2007.

The only question which requires to be considered, is as to whether there is any legal evidence to prima facie connect the Petitioners to the alleged offences or it is totally lacking in evidence and to state that no prima facie case have been made out.

This Court carefully perused the FIR dated 11.9.2007, in Crime No. 221 of 2007 and the allegations made therein. On a bare perusal of the statements given by the Complainant, Vice-President of the Panchayat, Panchayat Clerk, the Pump Operator and the Village Administrative Officer, who were all examined by the Respondent-Police, it is seen that they have uniformly stated about the entire incident and it would suffice to refer to the portion of the statement of the Complainant, who has stated as follows:

The above statements made by the Complainant have also been reiterated by other witnesses, who were examined by the Respondent-Police. After going through the statements available, the Court below took into consideration Section 3 of the PPD Act. In terms of charge as laid against the First Accused, it was stated that she has committed an offence under Section 3(i) of the PPD Act, which deals with committing mischief by doing any act in respect of any property and thereby cause damage or loss to such property to the amount of one hundred rupees or upwards. On considering the facts pleaded and the allegation being causing damage to the Panchayat pipeline provided for public water supply, the Court below held that Section 3(ii) is attracted, which deals with committing mischief by doing any act, which causes or which he knows to be likely to cause a diminution of the supply of water to the public.

Therefore, the Court below rightly altered the Section into one of Section 3(ii) read with Sections 109 & 506(ii), I.P.C. The utterance, which alleged to have been referred to in the statements, have been recorded from the witnesses. Therefore, the Court has to analysis as to whether the utterances caused criminal intimidation in the minds of the Complainant and this aspect can be gone into at the time of trial, when the prosecution witnesses are examined and cross-examined. Therefore, this Court is of the view that it is too early for the Petitioners now seek for the discharge in the light of the statements, which have been recorded.

The learned Counsel appearing for the Petitioner placed reliance on the decision of this Court in the case of Rajan v. State of Inspector of Police, 2008 (3) MLJ 776. The said decision arose out of a money transaction and this Court on going through the statements available on record held that the allegations are vague and bald and therefore, offence under Section 506(ii), does not stand attracted. In the instant case, statement of one of the witness has been referred to supra and this Court is of the view that the said statement cannot be rejected, as being vague and bald. Therefore, the decision relied on by the learned Counsel for Petitioner is clearly distinguishable on facts.

The Hon'ble Supreme Court in the case of the Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao, , while considering the scope of Sections 227 & 228 of the Code of Criminal Procedure held that the Court while considering the question of framing the charges under Section 227, Cr.P.C., this Court has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case would depend upon the facts of each case and when the materials placed before the Court disclose grave suspicion against the Accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. The Hon'ble Supreme Court further pointed out that the Court while considering the question of framing charges cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence. The Hon'ble Supreme Court cautioned that at the stage of framing charges, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if the Court was conducting a trial; that on the basis of the materials on record, the Court could form an opinion that the Accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the Accused has committed the offence.

Furthermore, is was held that at the time of framing charge, the probative value of the material on record cannot be gone into, but the Court must apply its judicial mind on the material on record and must be satisfied that the commission of offence by the Accused was possible. This Court is required to evaluate the material and documents by taking them on their face value and whether the ingredients constitute the alleged offence and if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Court will be empowered to discharge the Accused at that stage. On a perusal of the evidence, this Court is of the view that the learned Trial Judge rightly refused to exercise power under Section 227, Cr.P.C., and brought out the circumstances, which have been placed before the Court in the form of statements to attract the offence.

In the light of the above, the Petitioners have not made a case for interference. Accordingly, the Criminal Revision case fails and it is dismissed. It is made clear that the learned Assistant Sessions Court, Sankari, shall proceed with the trial uninfluenced by any observations made in this Order. Consequently, connected Miscellaneous Petition is closed.