Madras High Court

Srinivasan vs State Rep. By Inspector Of Police on 19 December, 2008

In the High Court of Judicature at Madras
Dated: 19.12.2008
Coram:
The Honourable Mr.Justice M.SATHYANARAYANAN
Crl.O.P.No.7571 of 2005
and
Crl.M.P.Nos.2667 and 2668 of 2005
1. Srinivasan
2. Prasad
3. Kasturirangan
4. Chidambaram
5. Rangaswamy
6. Jayakumar
7. Venkatesan
8. Santhanadevar
9. Mani
10. Srinivasan
11. Jambulingam ... Petitioners
Versus
State rep. by Inspector of Police,
R-4, Pondy Bazaar Police Station,
T.Nagar, Chennai - 600 017. ... Respondent
Criminal Original Petition filed under Section 482 of Cr.P.C., seeking to quash the F.I.R. in Crime No.86 of 2005 dated 30.01.2005, on the file of the respondent.
For Petitioners .. Mr.K.N.Nataraaj
For Respondent .. Mr.J.Paul Noble Devakumar, G.A.
*****
O R D E R
This Criminal Original Petition is filed to quash the F.I.R. in Crime No.86/2005 registered by the
respondent herein for the alleged commission of offence under Sections 45 and 46 of Madras City
Police Act.
2. As per the F.I.R, the complainant is the Inspector of Police, Pondy Bazaar Police Station,
Chennai-17 and according to him, on receipt of information, he raided the premises of the petitioner
at about 18 hours on 30.01.2005 and found in the premises that accused No.2 to 11 were playing
card game Mangathaand accused No.1 had leased out the said premises for rent and therefore,
Srinivasan vs State Rep. By Inspector Of Police on 19 December, 2008
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they have committed the above said offence.
3. The accused in the F.I.R came forward to file this Criminal Original Petition to quash the F.I.R on
the ground that similar prosecutions launched against the petitioner and also the Club on earlier
occasion, had ended in acquittal and that they have also moved the civil court and obtained a decree
restraining the police officials from interfering with the affairs of the club viz., Sri Sakthi Vinayagar
Recreation Centre and a decree was passed which was confirmed by this Court also. They also filed
writ petitions wherein orders have been passed against the police officials restraining them from
interfering with the affairs of the club except under due process of law.
4. Mr.K.N.Nataraaj, learned counsel appearing for the petitioners would submit that the case
registered in Crime No.86/2005 by the respondent herein is purely an abuse of process of law and if
it is allowed to continue, would definitely result in miscarriage of justice and therefore, the F.I.R is
liable to be quashed.
5. Per contra, Mr.J. Paul Noble Devakumar, learned Government Advocate (Criminal side) would
submit that there is no prohibition against the respondent to exercise power contemplated under
law and in the Civil Court proceedings as well as in the orders passed by this Court, directions have
been given to proceed against the club in accordance with law. The learned Government Advocate
(Criminal side) would further submit that on receipt of credible information that card game viz.,
Mangathais being played in the club, the premises of the club was raided and it was found that
the accused were playing the said game by betting of money and that the game Mangathadoes
not involve skill but purely based on wager. Therefore, the case registered by the respondent is not
liable to be quashed and that they may be permitted to conduct investigation.
6. A perusal of the typed set would reveal that Sri Sakthi Vinayagar Recreation Centre has been
registered as a society in Registration No.228 of 1984. The earlier prosecution launched by the
respondent herein in Crime No.4646 to 4650 of 1988, 4686 of 1988 and 4493 of 1988 and 1696 of
1988 which culminated in to Calendar Cases have been set off under Section 258(1) of Cr.P.C. as the
respondent herein has failed to produce the witnesses.
7. The above said club through its secretary, has filed a suit in O.S.No.1619 of 1985 on the file of the
VIII Assistant City Civil Court, Chennai against the Commissioner of Police, Deputy Commissioner
(Law and Order, Chennai Central Police District), Assistant Commissioner of Police (Law and
Order), Triplicane Range and Inspector of Police (Law and Order), D1. Police station, Chennai-17
(respondent herein) for permanent injunction restraining them from interfering with the affairs of
the club. This court vide judgment and decree dated 11.1.1989, has dismissed the said suit and
challenging the vires of the same, the club preferred appeal in A.S.No.281 of 1989 on the file of the
Court of II Additional City Civil Judge, Chennai. The lower appellate Court held that in the event of
the respondents receiving credible information of conducting of card game viz., Mangathain the
premises of the appellant, they can raid the premises and take action. Since the appellant's Club is a
recreation Club, the respondents are restraining to interfere with the lawful aims and objects of the
Club by its members, employees and guests as per Ex.A1.
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8. The respondents therein challenged the judgment and decree passed in A.S.No.281 of 1989 by
filing second appeal No.1738 of 1990 before this Court. This Court vide judgment dated 14.1.2003,
has dismissed the said appeal holding that the club is a recreation centre and it is entitled to conduct
the affairs as per its aims and objects and if there is contravention or violation of any of the aims and
objects and if any illegal activities are carried on, the same may be brought to the notice of the
defendants therein and on such reliable information, it is always open to them to investigate and
take action.
9. The club has also filed W.P.No.13736 of 1997 praying for the issuance of writ of mandamus
forbearing the Commissioner of Police, Deputy Commissioner of Police (Law and Order), Central
Madras, Assistant Commissioner of Police , (Law and Order), Triplicane range and this respondent
from interfering with the peaceful running of Sri Sakthi Vinayagar Recreation Centre, Chennai-17.
10. This Court after taking note of the judgment in S.A.No.1738 of 1990 (stated supra), has granted a
direction as prayed for, but made it clear that such direction will not stand in the way of the
competent authorities to take any lawful action in accordance with law as and when the
circumstances so warrant.
11. Therefore, according to the learned counsel appearing for the petitioner that since the club
repeatedly sought the intervention of this Court and that the earlier prosecution launched by the
respondent herein had been closed/ended in acquittal, with a mala fide motive, they have launched
prosecution. It is further submitted by the learned counsel appearing for the petitioner that the
reading of the F.I.R on the face of it does not constitute commission of the offence and on that
ground also it is liable to be quashed. Lastly, it is contended by the learned counsel appearing for the
petitioner that the club now itself has been closed as the club and its members are unable to
withstand the series of cases launched against them by the respondent.
12. Per contra, the learned Government Advocate (Crl.side) would contend that the registration of
F.I.R by the respondent is perfectly in order and the law should be allowed to take its own course.
13. The Court has carefully considered the submissions made by the learned counsel appearing for
the petitioner and the learned Government Advocate (Criminal side) and also perused the typed set
of documents.
14. The contents of the typed set of documents would reveal that the respondent earlier launched
prosecution for the similar kind of offences in PCF No.21137 of 1988 , C.C.No.11240 of 1988, 10817
of 1988 and 5207 of 1988 and all the complaints have been closed under Section 258(1) of Cr.P.C. as
the respondent failed to produce prosecution witnesses. In C.C.No.7288 of 1997, the first petitioner
herein was arrayed as first accused and there were 18 other accused and the allegation in the said
case was that on 26.8.1997 at about 7.45 p.m., the card game Mangathawas played.
15. The Court of 13th Metropolitan Magistrate, Egmore, Chennai, after conducting the trial acquitted
all of them awarding benefit of doubt. The first petitioner herein and 13 others have filed Criminal
O.P. No.172 of 2000 before this Court to quash the proceedings in C.C.No.10411 of 1999 pending on
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the file of 13th Metropolitan Magistrate Court, Egmore, Chennai, and this Court vide order dated
29.8.2000, has quashed the said proceedings and in paragraph 10 of the said order it has been held
as follows:
" But, one question which predominantly arises in this case and the answer to which militates
against the prosecution has to be considered. It is evident that the respondent had booked several
cases of gaming against the first petitioner and others and most of them were closed for want of
witnesses and ended in acquittal, that the Centre had also obtained injunction against the
respondent from entering into the premises without reliable information which had been confirmed
in W.M.P.No.22071 of 1997 by this Court. Even according to the prosecution, there had been
attempt of theft in a bank which is situate in the second floor of the building. As it is when
information was given to the police regarding attempt of theft and the respondent and his men were
to reach therein the broad-day-light, it can normally be expected that before even the police comes,
persons with curiosity gather to look into the premises to find out as to what has happened. Further,
when there had been a theft in the second floor and the police are about to come, it is unnatural that
the persons in the third floor would not have been aware of the incident which took place in the
second floor and awaited the arrival of the police, but would have continued to carry on gaming, that
too, according to the prosecution as stated in the charge-sheet shouting inside and outside causing
disturbance to the neighbours. Even if there had been such an incident, gamblers would have run
away or would have wound up their shows in expectation of the arrival of the police. It appears, the
action is motivated. Already when the petitioner had obtained an injunction, the attempted theft is a
rouse to enter the entire premises to overcome the effect of injunction granted by the Civil Court. On
that score, I feel, the further proceedings in C.C.No.10411 of 1999 on the file of the XIII Metropolitan
Magistrate, Egmore, Madras, are to be quashed. This Criminal Original Petition is accordingly
ordered. Consequently, Crl.M.P.Nos.58 and 59 of 2000 are closed."
16. Even though it is always open to the respondent to enter the premises of the club on receipt of
credible/reliable information with regard to the playing of the card Mangatha, the facts of the
present case coupled with the launch of prosecution in earlier cases, the judgment of this Court in
S.A.No.1738 of 1990, order passed in W.P.No.13736 of 1997 and more particularly order dated
29.8.2000 in Crl.O.P.No.172 of 2000, this Court is of the opinion that the action is motivated and
registration of the case in F.I.R in Crime No.86 of 2005 by the respondent was a rouse to enter the
club premises to overcome the effect of the above said orders. It is pertinent to point out at this
juncture that the Station House Officer of the respondent himself was the complainant and has
taken over jealous effort in registering of the case under Sections 45 and 46 of the Madras City
Police Act.
17. In the opinion of the Court, the prosecution in the form of F.I.R in Crime No.86 of 2005
registered by the respondent herein bristles results with mala fide and the same has been done in
order to overcome the above said orders passed by this court. That apart, the prosecution launched
by the same respondent for the alleged commission of the very same offence on earlier occasions
had either been dropped for want of production of prosecution witnesses or ended in acquittal.
Hence, the continuance of proceedings pursuant to the said F.I.R would ultimately result in
miscarriage of justice against the petitioners and hence the said FIR is liable to be quashed.
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18. Accordingly, the Criminal Original Petition is allowed and the F.I.R in Crime No.86 of 2005
registered by the respondent is quashed. Consequently, Crl.M.P.Nos.2667 and 2668 of 2005 are
closed.
gr.
To
1. Inspector of Police, R-4, Pondy Bazaar Police Station, T.Nagar, Chennai - 600 017.
2. The Public Prosecutor, High Court, Madras
Srinivasan vs State Rep. By Inspector Of Police on 19 December, 2008
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