Saturday, August 13, 2011

This appeal is directed against the judgment and decree passed by the lower Court in O.S. No: 12 of 1998 dated 24.08.1998 by the 1st defendant. The brief facts submitted before the lower Court as per the pleadings of both parties are as follows


In the High Court of Judicature at Madras

Date :    05..12..2008



Coram :


The Hon'ble Mr. Justice V. Periyakaruppiah



A.S. No: 438 of 1999


Aboorvam ...  Apellant

-vs-

1.  Kalaimathi

2.  Minor Kirubakaran

3.  The Chief Secretary to
      Government of Pondicherry,
     Pondicherry.

4.  The Secretary to Government
of Pondicherry,
     Education Department,
     Pondicherry.

5.  The Secretary to Government
of Pondicherry,
     Finance Department,
     Pondicherry.

6.  The Chief Education Officer,
     Office of the Chief Education Officer,
     Bharathiar road,
     Karaikal Town. ...  Respondents
..  ..  ..


First appeal under Section 96 of C.P.C. against the judgment and decree dated 24.08.1998 made in O.S. No: 12 of 1998 on the file of the Court of the Additional District Judge, Pondicherry at Karaikal.

For appellant           :  Mr. G. Vasudevan for
     M/s. T. Susindran

For resp. 1 & 2         :  Mr. P. Palaninathan

For resp. 3 to 6        :  Mr. A.S. Bharathi,
              for Govt. Pleader (Pondy)
..  ..  ..


J U D G M E N T

This appeal is directed against the judgment and decree passed by the lower Court in O.S. No:  12 of 1998 dated  24.08.1998 by the 1st defendant.  The brief facts submitted before the lower Court as per the pleadings of both parties are as follows :

" (a)   The plaintiff is the widow of the one Pavadai who worked as Secondary Grade Teacher, Government Middle School, Thiruvetakudi, Kottucherry Commune.  First defendant is the mother-in-law of the plaintiff.  The plaintiff is married to the above said Pavadai on 26.06.1985 at Kanjanagaram, Mayiladuthurai.  The plaintiff's husband died on 21.10.1987 due to hypertension.  The second plaintiff is the son of the deceased Pavadai.  The deceased Pavadai when he was working as a Teacher has declared that his mother Apporvam, namely the 1st defendant herein, as nominee for the gratuity amount.  The deceased Pavadai did not change the name of the nominee after the marriage with the 1st plaintiff.  His failure to change the name is purely due to oversight.  The plaintiffs alone are entitled to receive the gratuity amount from the Education Department, Government of Pondicherry.   The 1st defendant is trying to withdraw the gratuity amount from the defendants on the ground that she is claiming to receive the gratuity amount as per the declaration made by the deceased Pavadai.  Hence, the other defendants are added as parties so that they would also be bound by the decision of this Court.  Plaintiffs alone are entitled to receive the gratuity amount of the deceased Pavadai and hence, the suit.
(b)  The 1st defendant would state that she is also one of the Class I heir of the deceased Pavadai.  The Government of Pondicherry is necessary party to the proceedings.  The relief of declaration of heirship and the relief of declaration that the plaintiffs are entitled to receive the gratuity amount are two different and distinct reliefs.  Hence, the Court fee paid is not proper.  The earlier suit filed in O.S. No: 88 of 1992 on the file of the Principal District Munsif, Karaikal, between the same parties was dismissed and against which no appeal is filed.  The dismissal of the suit is a bar for fresh suit and therefore, the suit is not maintainable and liable to be dismissed."
2.  The lower Court had, after going through the evidence adduced before it, come to the conclusion of decreeing the suit as prayed for with costs against the 1st defendant.  The 1st defendant who was aggrieved by the said judgment and decree has preferred this appeal.

3.  Heard the learned counsel for the appellant and the respondents.

4.  On a careful perusal of the grounds raised in the appeal memo and the arguments advanced by both sides and after perusal of the evidence adduced by both parties before the lower Court, the following points are framed for conclusion in this appeal, as follows :-

"1.  Whether the finding of the lower Court as to the entitlement of the gratuity amount payable to the plaintiffs and the 1st defendant on the death of the husband of the 1st plaintiff is not correct ?
2.  Whether the appeal has to be allowed ?
3.  To what relief the appellant is entitled for ? "

5.  Point Nos: 1 and 2 :-  The dispute in between the parties namely the plaintiffs and the 1st defendant was in respect of  the apportioning of the gratuity amount payable to the husband of the 1st plaintiff namely Pavadai.  The plaintiffs, are the wife and the son of the deceased Pavadai.  The 1st defendant is the mother of deceased Pavadai. The case of the  plaintiffs 1 and 2 was that they were entitled to the gratuity amount and, therefore, they filed a suit seeking a declaration that they were entitled to the said amount and for consequential relief of injunction against the 1st defendant from in any way disturbing the plaintiffs from claiming the amount available with the defendants 2 to 5.  The relationship of the deceased Pavadai with the plaintiffs 1 and 2 and the 1st defendant are not disputed in between them.  The only point to be decided is whether the plaintiffs are solely entitled to the said benefit on the death of the deceased Pavadai.  The lower Court had, after appraising the evidence. come to the conclusion that the 1st plaintiff (wife); the second plaintiff (son) and the 1st defendant (mother) are coming under Class I heir under 'The Hindu Succession Act' and had declared that all the three persons are entitled to  the gratuity benefits of the deceased Pavadai payable on his death.  The case of the plaintiffs and the evidence adduced thereon would disclose that the said deceased Pavadai died intestate and he had not executed any testimontary document for the future succession.  It is not the case of the both parties that some other person is also living as the legal representatives of the deceased Pavadai.  Therefore, the decision reached by the lower Court that the plaintiffs 1 and 2 and the 1st defendant were the legal representatives of the deceased Pavadai and were entitled to succeed the Estate of the deceased Pavadai are quite right.  The gratuity amount payable on the death of the deceased Pavadai at the hands of the defendants 2 to 5 is also one among the estate and it is also liable to devolve on them equally.  In such circumstances, the decision of the lower Court that the plaintiffs are not solely entitled to be declared as legal representatives but the plaintiffs 1 and 2 are entitled to two third only from and out of the gratuity amount need not be interfered.  The remaining one third share is admittedly payable to the 1st defendant.  In such circumstances, it has passed the decree of declaration in respect of the two third share of the plaintiffs 1 and 2 and the consequent injunction was also granted only to that extent.  However, the lower Court had come to a conclusion of decreeing the suit with costs.  It has also awarded cost against the 1st defendant, the mother of the deceased.  No doubt the mother is not actually disputing the entitlement of plaintiffs 1 and 2.  However,  it had awarded costs which is not found to be just.  Under these circumstances, this Court is inclined to set aside the order passed by the lower Court in respect of awarding of cost against the 1st defendant.  Therefore, it has become necessary to confirm the decision of decreeing the suit passed by the lower Court but the order passed by the lower Court in awarding cost alone is set aside.  To that extent the appeal is also liable to be allowed.

6.  For the foregoing discussion, the judgment and decree passed by the lower Court in passing the decree of declaration and injunction against the 1st defendant in respect of the two third share of the plaintiffs 1 and 2 is confirmed and the awarding of costs against the 1st defendant is set aside.  To that extent the appeal is allowed and both the points are answered accordingly.
7.  Point No: 3 :  In view of the decision reached in points 1 and 2, the appeal is partly allowed by setting aside the order of lower Court in awarding of cost against the 1st defendant in favour of the plaintiff alone and accordingly, the judgment and decree of the lower is modified. Connected miscellaneous petition is closed. There is no order as to the costs in this appeal also.





gp

To

1.  The Additional District Judge,
     Pondicherry at Karaikal.

2.  The Chief Secretary to
      Government of Pondicherry,
     Pondicherry.

3.  The Secretary to Government
of Pondicherry,
     Education Department,
     Pondicherry.

4.  The Secretary to Government
of Pondicherry,
     Finance Department,
     Pondicherry.

5.  The Chief Education Officer,
     Office of the Chief Education Officer,
     Bharathiar road,
     Karaikal Town


CRP ORD 9 RU 13 AFTER COMM THE TRAIL ALLOWED


In the High Court of Judicature at Madras

Date :     17 ..10..2008


Coram :


The Honble Mr. Justice V. Periyakaruppiah

C.R.P. (P.D.)  No: 2119 of 2008

1.  Ayyavoo
2.  Veerakesavamdhavan
3.  Karthikeyan
4.  Rajiniraj


All are residing at :
No: 11, Parivallal Street,
Soorampatti Post,
Erode  9.       Petitioners

-vs-

1.  Krishnan
2.  Padmashree     Respondents

..  ..  ..

Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 12.02.2008 passed in   I.A. No: 487  of 2007 in O.S. No: 43 of 2005 on the file of Subordinate Judge,  Mettur.  
For petitioners      :   M/s. R. Nalliyappan
For respondent     :   Mr. M.M. Sundaresan
..  ..  ..
O R D E R

This revision has been preferred by the defendants 1 to 4 who were petitioners in I.A. No: 487 of 2007 in O.S. No: 43 of 2005 against an order of dismissal of their plea to set aside the ex-parte order passed against them on 05.07.2007.

2.  The brief facts of the case pleaded by both the parties before the lower Court are as follows :

  The suit schedule properties are ancestrol properties. On 02.09.1989 the properties were partitioned and the suit schedule property was allotted to the share of the 1st defendant.  The suit filed by the plaintiff in O.S. No: 43 of 2005 was before the Sub Court, Mettur.  The case of the revision petitioners was that some compromise talk was going on between the parties and hence, they did not appear before the Court on 05.07.2007 and for their absence on that particular day, they were set ex-parte by the Court and hence, this revision before this Court. 

3.  The lower Court had come to the conclusion of dismissing the petition filed by the petitioners / defendants 1 to 4 which was filed for the purpose of setting aside the ex-parte order passed against them.  Against the said order, the petitioners have preferred this revision.

4.  Heard both sides in full.  The learned counsel for the petitioners  / defendants 1 to 4 would submit in his argument that suit was filed by the plaintiffs / respondents for specific performance and in the said suit, the petitioners could not appear before the Court on 05.07.2007 as compromise talks were in progress between the parties.  But the lower Court had taken note of the absence of the petitioners / defendants 1 to 4 and had set them ex-parte and the petition filed by the petitioners to set aside the ex-parte order was wrongly dismissed by the lower Court by holding that the petitioners had presented the petition into Court after a lapse of four months and therefore, ex-parte order passed against them cannot be set aside.  He would further submit in his argument that the suit was pending at the time when the petitioners / defendants 1 to 4 have filed the petition to set aside ex-parte order and therefore, the lower Court ought to have permitted the petitioners / defendants 1 to 4 to participate in the trial by filing written submissions and, therefore, the order passed by the lower Court ought to have been interfered with and the revision petition has to be allowed.

5.  The learned counsel for the 1st respondent / plaintiff would submit in his argument that the petitioners had no bonafide in applying to the Court to set aside the ex-parte order.  They have prepared the affidavit petition long prior to the filing of the petition before the Court and the petition was filed belatedly for the purpose of prolonging the case and therefore, the lower Court had rightly dismissed the petition as they had no intention to participate in the trial.  He would further submit that the suit was in a part-heard stage and yet another suit in O.S. No: 66 of 2006 was clubbed together and the evidence was ordered to be recorded in O.S. No: 66 of 2006 and the lower Court found that the application filed by the petitioners are highly belated and had come to the conclusion of dismissing the same and, therefore, the order of the lower Court need not be interfered with and the revision petition may be dismissed.

6.  I have given anxious consideration to the arguments advanced by both sides.  The admitted facts would be that the petitioners / defendants 1 to 4 had filed a petition to set aside the ex-parte order passed against them on 05.07.2007 and the said petition was found to have been prepared a long prior to the filing of the petition and was kept at the hands of the petitioners without being presented into Court.  The explanation offered by the learned counsel for the petitioners would be that the mentioning of the date as if it was prepared long prior to the filing of the petition would have been a typographical mistake and the lower Court should not harp on the said defect and there is no time limit fixed under the Limitation Act to file a petition to set aside the ex-parte order passed against the defendants while the suit is pending.  On a careful perusal of the order passed by the lower Court, we could see that the lower Court had come to the conclusion of dismissing the petition only on the reason that the petitioners had prepared the petition long prior to the filing of the petition and had filed it later for the purpose of prolonging the case.  The said decision of the lower Court is ex-facie not sustainable because the defendants are at liberty to file a petition to set aside the ex-parte order at any time before the trial Court before the judgment is pronounced.  Admittedly, there is no time limit fixed for filing of the application to set aside the ex-parte order by any one of the defendants while the suit is pending. Justice requires that parties to the suit should be given fair opportunities to present their case.  Under these circumstances, the order of dismissal passed by the lower Court in the application to set aside the ex-parte order against the petitioners / defendants 1 to 4 is against law and therefore, it is liable to be interfered with.  Accordingly, the revision petition is allowed.  The lower Court is directed to give an opportunity to file written statement by  defendants 1 to 4 in both the suits and also to frame additional issue if any and to continue the examination of the witnesses after giving opportunity to defendants to cross examine them.  With the aforesaid observations, this Civil Revision Petition is allowed.   No costs.






Gp







[ PRV / 15950 ]

petition for interim alimony filed by the respondent in the main petition filed by her in M.O.P. No: 166 of 2004 seeking to declare the marriage alleged to have been performed between the petitioner and the respondent as null and void.


In the High Court of Judicature at Madras

Date :  17 ..10..2008


Coram :


The Honble Mr. Justice V. Periyakaruppiah

C.R.P. (P.D.)  No: 2056 of 2008

Elavarasi,
Door No: 4, Plot No: 15,
6th Cross Extension,
Thanthai Periyar Nagar West,
Puducherry  5.   Petitioner

-vs-

Iyyanar,
No: 10, Old Market Street,
Aandiyan Thopu,
Mudaliarpet,
Puducherry.   Respondent

..  ..  ..

Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 20th May, 2008 passed in I.A. No: 120 of 2008 in I.A. No: 1763 of 2007 in M.O.P. No: 166 of 2004 on the file of the Court of the Family Judge at Puducherry.
For petitioner      :   M/s. P.V. Rangarajan
For respondent    :   No appearance
..  ..  ..
O R D E R

This revision has been filed by the petitioner against the dismissal of her petition, which is filed before the lower Court for stay of I.A. No: 1763 of 2007.  I.A. No: 1763 of 2007 is a petition for interim alimony filed by the respondent in the main petition filed by her in M.O.P. No: 166 of 2004 seeking to declare the marriage alleged to have been performed between the petitioner and the respondent as null and void.

2.  The brief facts stated by the parties before the lower Court are as follows :-
  Petitioner herein has filed M.O.P. No: 166 of 2004 on 26.07.2004 itself for the relief of declaration that the alleged marriage between the petitioner and the respondent as null and void since it was solemnized before the Registrar of Marriages, Cuddalore, on 09.07.2004 against her Will, without her free consent, under coercion and under immediate threat to her family members. When the main petition is pending at the stage of cross examination of P.W.1, the respondent herein filed I.A. No: 1763 of 2007 seeking interim maintenance.  Hence, petitioner came out with I.A. No: 120 of 2008 seeking stay of all further proceedings in I.A. No: 1763 of 2007 on the ground that the subject matter of both the petitions are also directly and substantially one and the same and hence, it is just and necessary to grant an order of stay as prayed for.
     The respondent claimed that the petition is not maintainable either in law or on facts and it has to be dismissed in limini.  The petitioner wants to curtail the legal rights of the respondent by circumventing the provisions of Section 24 of the Hindu Marriages Act, which entitle pendente lite remedy and expenses for proceedings because he has no independent income sufficient for his support and the necessary expenses of this proceedings.  According to the respondent, without deciding I.A. No: 1763 of 2007, the petitioner has no right to continue the proceedings much less to stay all the proceedings and hence, the petition may be dismissed with exemplary costs. 


3.  On the pleadings and evidence produced before it, the trial Court had come to the conclusion that the petition filed by the petitioner, the alleged wife, seeking stay of the petition for interim alimony filed by the alleged husband  respondent in I.A. No: 1763 of 2007 till the main O.P. No: 166 of 2004 is disposed of, was not sustainable.  Against the said order, the revision petitioner / wife, had preferred this revision.



4.  Heard the learned counsel appearing for the petitioner.  The respondent did not appear before this Court.  The facts which cannot be disputed in the case submitted by both the parties are that the petitioner has filed O.P. No: 166 of 2004 seeking a relief of declaration that the alleged marriage between the petitioner and the respondent as null and void since it was soleminised before the Registrar of Marriages, Cuddalore, on 09.07.2004, against her will, without free consent, on co-ersion and under immediate threat to her family members.  The said petition was resisted by the respondent by filing counter and the said petition is also ripe for trial and the proof affidavit of the petitioner was also filed on 13.06.2007 towards examination in Chief as P.W.1 and the documentary evidence have also been admitted on the same date.  The petitioner is yet to be cross examined as P.W.1.  In the meanwhile, the respondent had filed another petition in O.P. No: 137 of 2007 against the petitioner herein for the relief of divorce and since the said petition is subsequent one and the issues and the cause of action are one and the same in both the cases, the petitioner herein had filed a petition in I.A. No: 1100 of 2007 in M.O.P. No: 137 of 2007 for stay under Section 10 read with Section 151 C.P.C. till the disposal of the M.O.P. No: 166 of 2004 and the said petition is pending.  Knowing full well all these facts, the respondent had filed a petition for interim alimony in I.A. No: 1763 of 2007 against the petitioner wife giving false particulars and the said petition was filed by the petitioner while P.W.1 was in box and her cross examination was due.  Therefore, the petitioner  wife had filed the petition to stay the subsequent proceedings in I.A. No: 1763 of 2007 till the disposal of the main proceedings in M.O.P. No: 166 of 2004.  According to the learned counsel for the petitioner, in an interim alimony application it has to be seen as to whether the marriage in between the petitioner and the respondent is  valid and legal  and is in accordance with law and after finding the marriage prima facie legal, the interim alimony can be ordered by the Court. So far as this case is concerned, the marriage said to have been soleminised between the petitioner and the respondent is itself in question, which can be decided only after a full fledged trial, and therefore, any order to be passed in the interim alimony petition would definitely depend upon the order to be passed in the main O.P. as the issue arising in both the applications is one and the same.  He would further submit that and even though it is a single case, the proceedings are different and the later proceedings namely the interim alimony petition filed after the commencement of the trial has to be stayed under Section 10 C.P.C. He would cite an authority reported in A.I.R. 1993 Madras 90 [Radhika Konel Parekh vs. Konel Parekh] in support of his case.  He would further submit in this argument that the lower Court has landed  in a wrong conclusion that Section 24 application has to be disposed of prior to the trial of the main O.P. and, therefore, it has not considered the plea of stay under Section 10 which is against the cannons of law as envisaged under Section 10 C.P.C.  He would further submit in his argument that the respondent had frivolously filed the petition for interim alimony knowing full well that the petitioner is only a student without any income.  Therefore, he would request the Court to interfere with the order passed by the lower Court and to pass an order of stay under Section 10 C.P.C. in the said petition staying the interim alimony application till the disposal of the main O.P.

5.  There is no representation for the respondent.  However, the contention raised by him in the counter could be perused for appreciating his case, if any.  After giving anxious consideration to the contentions raised on either side, it has become necessary for this Court to take note of the dates of filing of the petitions by both the parties.  The first petition filed by the petitioner is M.O.P. No: 166 of 2004 on 26.07.2004 for declaring the marriage, said to have taken place on 09.07.2004 in between the petitioner and the respondent, as null and void. Thereafter, the respondent had filed a petition in M.O.P. No: 137 of 2007 seeking divorce under Section 13 (1) (1a) and 13 (1) (b) of the Hindu Marriage Act.  Subsequently, on 13.06.2007, the petitioner has filed proof affidavit in M.O.P. No: 166 of 2004 for being examined as P.W.1.  She has also filed a petition in I.A. No: 1100 of 2007 in M.O.P. No: 137 of 2007 under Section 10 read with 151 C.P.C. for stay of all proceedings in M.O.P. No:137 of 2007 pending disposal of M.O.P. No: 166 of 2004.  Thereafter, the respondent has filed a petition for interim alimony in I.A. No: 1763 of 2007 on 19.11.2007 seeking a monthly payment of Rs.1,000/- per month from the petitioner / wife. On a careful perusal of the aforesaid strategy of the case, we could see that the respondent has not chosen to file the interim alimony application at an earlier point of time which is pending from 2004, when the main O.P. No: 166 of 2004 was filed by the petitioner.  He had filed the said petition in I.A. No: 1763 of 2007 after a long period namely after the commencement of the trial in the said petition, on 13.06.2007.  There is no dispute that the interim alimony application has to be disposed of prior to the main O.P. But the said principle has to be applied depending upon the facts and circumstances of each case.  The main dispute in between the parties is revolving on the validity of the alleged marriage said to have taken place in between them.  The petitioner had challenged the said marriage as a coercive one since her consent was not obtained  freely and genuinely but it was obtained by threat.  Therefore, the validity of the marriage can be decided only after a full fledged trial.  Similarly, the question of validity of the marriage has to be necessarily considered for the purpose of awarding interim alimony by one of the spouses to the other side.  Therefore, the case to be decided in the main O.P. and the prima facie case to be seen in the interim alimony application namely I.A. No: 1763 of 2007 are one and the same and if the application in I.A. No: 1763 of 2007 for interim alimony is disposed of earlier, the findings of the Court may prejudice the parties either and it may affect their case in the main O.P.  Therefore, in the facts and circumstances of this case, it has become necessary for this Court to order for simultaneous disposal of the main O.P. and the I.A. No: 1763 of 2007 to render justice to both the parties.  If for any reasons the petitioner succeeds in the main O.P. the application for interim alimony will also be dismissed.  On the other hand, if the petition filed by the petitioner seeking the marriage as null and void is dismissed after a full fledged trial, the plea for grant of interim alimony to the respondent is always available, subject to the merits of employment and non-employment and status of the parties.  For the foregoing reasons, this Court is of the opinion that the main O.P. and I.A. No: 1763 of 2007 have to be clubbed together for joint trial of common disposal by the lower Court.  Therefore, the order passed by the lower Court dismissing the petition for stay under Section 10 is liable to be interfered with and the Civil Revision Petition is ordered accordingly.  The Court below shall dispose of the main O.P. and the I.A. No: 1763 of 2007, after a joint and common trial, as expeditiously as possible, preferably within three months from the date of receipt of the copy of this order.   No costs.






gp






[ PRV / 15974 ]


interim alimony of Rs.1,000/- per month and a sum of Rs.2,000/- for litigation expenses


In the High Court of Judicature at Madras

Date :   16..10..2008



Coram :


The Honble Mr. Justice V. Periyakaruppiah


C.R.P. ( P.D. ) No: 2150 of 2008


Kumaraguru
Madavilaga Street,
Nannilam,
Thiruvarur District. ...  Petitioner

-vs-

Kamsala,
Madavilaga Street,
Nannilam,
Thiruvarur District. ...    Respondent

..  ..  ..

Civil Revision Petition under Article 227 of the Constitution of India against the fair and decreetal order dated 10.06.2008 made in I.A. No: 12 of 2008 in H.M.O.P. No: 42 of 2007 on the file of the Sub Court, Thiruvarur.

For petitioner         :  M/s. S. Sounthar

For respondent       :  No appearance
..  ..  ..



O R D E R

This revision has been preferred against the order passed by the lower Court in I.A. No: 12 of 2008 in H.M.O.P. No: 42 of 2007 in awarding interim alimony of Rs.1,000/- per month and a sum of Rs.2,000/- for litigation expenses in the petition filed by the respondent before the lower Court seeking a monthly payment of Rs.3,000/- and a sum of Rs.5,000/- towards litigation expenses.  The relevant facts as put forth by both the parties before the Courts below are as follows :
"   Husband is the plaintiff who filed H.M.O.P. No: 42 of 2007 before the  Sub Court, Thiruvarur.  The wife filed I.A. No: 12 of 2008 seeking maintenance on the ground that the husband is running a provision store with a monthly income of Rs.8,000/- and other than this, he is owning nanjai and punjai lands and is also letting out money for interest from which his yearly income is Rs.25,000/- and hence, he is duty bound to pay maintenance to her.
The plaintiff claimed that the petitioner / wife has sufficient means to live.  He is not running any stores and that the small petty shop, he had was closed two years back.  He is not lending money and that he does not own any lands.  He is working as an assistant with a cable T.V. operator and wiring mechanic and is earning Rs.1,000/- per month."


2.  The lower Courts, after perusal of the allegations made in the affidavit and the counter affidavit, had come to the conclusion that the revision petitioner should have earned atleast a sum of Rs.3,000/- per month through coolie works even though he has stated to have eking out his livelihood by running a provision stores and also owning punja and nanja lands.  The Courts below have come to the conclusion that the reasons put forth by the husband are not reliable for the purpose of determining the interim alimony and only the requirement when wife is living at her father's house is whether she is earning and if it is not so the maintenance of the wife has to be meted out by the husband.

3.  The learned counsel for the revision petitioner would submit in his argument that the respondent wife is living in her fathers house without any reasonable cause and she has also not proved the income of the petitioner as claimed by her in the petition.  He would further submit in his argument that the revision petitioner was earning a sum of Rs.700/- per month only and the order passed by the Courts below to pay a sum of Rs.1,000/- to the respondent is highly excessive and when the respondent  wife is living separately on her own accord, the revision petitioner  husband is not liable to pay maintenance to her.  He would also submit that  the   order  of  payment to an extent of Rs.2,000/- towards litigation expenses is also on the higher side especially when the respondent is assisted by Legal Aid Forum and, therefore, he sought for the interference of the impugned order by setting aside the same and to pass appropriate orders.

4.  None appeared for the respondent.  This Court considered the arguments advanced by the learned counsel for the revision petitioner and  perused  the material records placed.  The revision petitioner is the husband and the respondent is the wife.  For the purpose of convenience, the revision petitioner and the respondent herein are referred to as husband and wife respectively.  According to the  husband  he is earning only a sum of Rs.700/- and the claim of the wife that her husband was having a provision store and also owns  nanja and punja lands are not proved by the wife and therefore, the order passed by the Courts below is liable to be set aside.  On a careful perusal of the order, we could see that the Courts below had come to the conclusion that the husband is not running a provision store and the income of the husband as put forth in the petition was not proved by the wife.  However, the Courts below had come to the conclusion that the husband would have earned a sum of Rs.3,000/- even if he is doing a coolie work.  This conclusion is purely on a presumption and the said presumption cannot be deemed as illegal since it is not possible in the present condition to maintain a family even with a sum of Rs.3,000/- per month.  The case of the husband that he is earning only a sum of Rs.700/- per month cannot also be true especially when the husband was already running a grocessory shop and was earning much.  In these circumstances, it is not a case to interfere with the decision of the Courts below in deciding the income of the husband at the rate of Rs.3,000/- per month and in ordering one third of the said amount towards the maintenance to the wife.   Similarly, the order of payment of Rs.2,000/- towards litigation expenses is also perfectly in order.  Even though the petitioner is assisted with Legal Aid Forum, there is no impediment to pass such an order towards payment of litigation expenses by the Courts below.  For all the reasons stated above, finding no illegality in the order passed by the Courts below, the same is sustained and the Civil Revision Petition is dismissed.  Consequently, connected miscellaneous petition is also dismissed. No costs.





gp






[ PRV / 15953 ]


This revision has been filed by the petitioner against the order passed by the lower Court in I.A. No: 150 of 2007 in H.M.O.P. No: 594 of 2006 dated 24.10.2007, an order awarding a sum of Rs.1,500/- to the petitioner and a sum of Rs.1,000/- to the son of the parties and a sum of Rs.2,000/- towards litigation expenses as interim alimony payable in favour of the wife


In the High Court of Judicature at Madras

Date :  16..10..2008


Coram :

The Honble Mr. Justice V. Periyakaruppiah


C.R.P. ( P.D. ) No: 2155 of 2008



C. Leelakrishnan
No: 394, Giriamman Koil Street,
Peelamedu,
Coimbatore District.      ...  Petitioner

-vs-

V. Devi,  
No: 9, Indira Street,
Arupperpalayam,
Tirupur,
Coimbatore District.    ...    Respondent
..  ..  ..


Civil Revision Petition under Article 227 of the Constitution of India against the fair and decreetal order dated 24.10.2007 made in I.A. No: 150 of 2007 in H.M.O.P. No: 594 of 2006 on the file of the Family Court, Coimbatore.  
For petitioner         :  Mr. P. Valliappan
For respondent       :  Mr. R. Babu

..  ..  ..





O R D E R

This revision has been filed by the petitioner against the order passed by the lower Court in I.A. No: 150 of 2007 in H.M.O.P. No: 594 of 2006 dated 24.10.2007, an order awarding a sum of Rs.1,500/- to the petitioner and a sum of Rs.1,000/- to the son of the parties and a sum of Rs.2,000/- towards litigation expenses as interim alimony payable in favour of the wife.

2.  The averments made by both the parties in support of their case are as follows :
"  Husband filed H.M.O.P. No: 594 of 2006 before the Family Court, Coimbatore.  Wife filed I.A. No: 150 of 2007 seeking interim maintenance for herself and their son and also for litigation expenses.  Wife claimed that the husband is earning a sum of Rs.7,500/- as salary and was also earning a sum of Rs.2,500/- through private jobs.  Wife is not earning and hence, she is not able to maintain herself and also her son.   Hence, this application was filed, seeking interim maintenance.  In reply, husband had stated that  all that is stated in the application filed by the wife is false and that he is earning only a sum of Rs.2,500/- per month and hence, this application should be  rejected. "


3.  The Courts below had come to the conclusion of awarding a sum of Rs.1,500/- against the claim of Rs. 2,000/- made by the wife and a sum of Rs.1,000/- to their son Aravind as claimed in the petition and a sum of Rs.2,000/- against the claim of Rs.5,000/- towards litigation expenses.  The revision petitioner who is the husband had preferred this revision against the said order.

4.  Heard the arguments advanced by the learned counsel appearing on either side in support of their respective case.  The learned counsel for the petitioner would submit in his argument that the order passed by the lower Court in granting interim alimony to the wife and son of the revision petitioner, the husband is not in accordance with law and it is not based upon any proof provided by the wife in support of her case.  He would also submit in his argument that the respondent  wife is working as a clerical assistant and is earning a sum of Rs.3,000/- per month and since she has got an independent income she is not entitled to claim interim alimony.  He would further submit in his argument that the respondent/petitioner is earning a sum of Rs.2,500/- per month only and the direction against the petitioner to pay a sum of Rs.1,500/- to the petitioner and Rs.1,000/- to the son is not in accordance with law and the imperatives of Section 24 of the Hindu Marriage Act.  Therefore, he had requested the Court to interfere with the order passed by the lower Court and to revise the order.

5.  The learned counsel for the wife had submitted in his argument that the lower Court had considered the issue and had come to the conclusion that the petitioner husband is capable paying a sum of Rs.1,500/- to the petitioner and a sum of Rs.1,000/- to the son of the petitioner and also a sum of Rs.2,000/- towards litigation expenses and the allegation that the respondent was earning a sum of Rs.3,000/- as clerical assistant was not proved and therefore, the order passed by the lower Court need not be interfered with.  Therefore, he had requested the Court to dismiss the revision petition.

6.  After giving anxious consideration to the arguments advanced by both sides, this Court could see that the Courts below had considered all the relevant facts and also the relationship between the petitioner and the respondent before coming to the conclusions.  The relationship between the parties as husband and wife and a son was born out of their wedlock is not in dispute.   The allegation that the respondent/wife is earning a sum of Rs.3,000/- is not proved and therefore, the Courts below had come to the conclusion that the respondent/wife and their son are entitled for interim alimony.  On a careful perusal of the order passed by the lower Court, it is seen that it had come to the conclusion that the petitioner/husband was working  at  Coimbatore  and  was  earning  a  sum of Rs.2,500/- by  doing private business and the said fact was falsely denied by the respondent  husband in order to evade the payment of maintenance to the wife and son.  Actually, the petitioner/husband had admitted in the counter filed by him before the lower Court that he was earning only a sum of Rs.2,500/- per month. No doubt, it is not possible to lead a life with a simple earning of Rs.2,500/- per month in the city of Coimbatore and, therefore, the Court below has rightly come to the conclusion that the allegation made by the petitioner  husband in counter affidavit is not reliable.

7.   On a overall consideration of the order passed by the Courts below, this court does not find any infirmity or illegality in the order passed by the lower Court under Section 24 of the Hindu Marriage Act.  In these circumstances, this Court finds that there is no reason to interfere with the orders passed by the Courts below and hence, the Civil Revision Petition is dismissed.  At this juncture, the learned counsel appearing for both sides requested the Court to give a direction to dispose of the main case as expeditiously as possible.  Accordingly, there will be a direction to  the Presiding Officer of the Family Court at Coimbatore, to dispose of the main H.M.O.P. No: 594 of 2006 as expeditiously as possible in any event not later than three months from the date of receipt of a copy of this order.






gp






[ PRV / 15954 ]


364 and 201 read with Sec. 34 I.P.C.CONVICTION


In the High Court of Judicature at Madras

Date :     31..03..2008


Coram :

The Hon'ble Mr. Justice D. MURUGESAN
and
The Hon'ble Mr. Justice V. PERIYAKARUPPIAH


Criminal Appeal No: 1009 of 2005


1.  Krishnan @ Ramasamy

2.  Rajendiran @ Chinnu

3.  Ramalingam ...  Appellants


-vs-

State,
rep. by Inspector of Police,
Neyveli Township Police Station,
Cuddalore District. ...  Respondent

..  ..  ..

Criminal appeal under Section 374 of Cr. P.C. against the judgment of conviction dated 17.11.2005 by the Principal Sessions Court, Cuddalore Division, Cuddalore,  made in S.C. No: 61 of 2005.
For appellants               :  Mr. Ashok Kumar,
  Senior Counsel for
   Mr. A. Sasidaran

For respondent              :  Mr. V.R.Balasubramanian
  Additional Public Prosecutor.
..  ..  ..



J U D G M E N T
V. Periyakaruppiah, J.

This appeal is directed against the judgment and conviction passed against the accused 1 to 3 finding them guilty of the offence under Sections 364 and 201 read with Sec. 34 I.P.C. and sentencing them to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- and also convicting them for an offence under Section 302 read with Sec. 34 I.P.C. and sentencing each of them to undergo life imprisonment and also to pay a fine of Rs.5,000/-.  The appellants namely accused 1 to 3 have preferred this appeal.  In the said judgment, the trial Court, while convicting the accused 1 to 3, had held that the prosecution had failed to prove the case of the prosecution  against A.4 and A.5 and consequently acquitted A.4 and A.5 of the charges levelled against them.

2.  The case of the prosecution as culled out from the material evidence is as follows :-

" (i)  Seven months prior to 04.04.2004  the deceased Manikandan expressed his love to one Rajeswari,  the daughter of Krishnan @ Ramasamy (A.1) and Selvam (A.5).  Thereupon, there was commotion, where upon there was enmity between the accused on the one side and the deceased Manikandan on the other side and therefore, the deceased was driven out of the Neyveli area.  Subsequently, on 04.04.2004 at Velludaiyanpattu village, Panguni Uthiram Kaavadi Festival was celebrated.  The deceased visited his native village Vadakkumelur nearby Velludaiyanpattu for that festival.  On 04.04.2004 at 06.30 p.m. the deceased was talking with his friends behind the school at Vadakkumelur. At that time, A.1, A.2, A.3 and A.5 came there and took the deceased Manikandan to the place near Mariamman Temple where the accused attacked him.  Later, he took him in an autorickshaw bearing Registration No: TN-31 Y  2376 and abducted him under the pretext that the deceased was being taken to the police station. On the way, accused purchased brandy and at 6.15 p.m. in the cashew thope belonging to one Vijeyendiran the deceased was taken out of the autorickshaw and the auto was sent.  Vijeyendiran told the accused not to assemble there.  Therefore, A.1, A.2 and A.3 took the deceased to the road leading to Vadakkumelur and under a margosa tree Manikandan was compelled to drink brandy and at 12.00 midnight A.1 and A.2 strangulated the deceased by putting his towel around his neck and done him to death and thereafter, all the three accused put the dead body into a borewell.

(ii)  On 10.04.2004, based on the complaint given by the mother of the deceased Manikandan a complaint was registered for an offence under Section 365 I.P.C.  On 13.04.2004, the police arrested A.3  Ramasamy, who gave a voluntary confession statement, in pursuance of which A.3 took the police to the borewell where they had hidden the dead body.  A bad smell was emanating from the borewell.
(iii)  Upon the identification of the borewell by A.3, with the help of Kurinjipadi fire service personnel, police started the process of taking out the dead body from the borewell.  The dead body, which was taken out from the borewell after the fire service personnel strived hard for about 15 hours, was identified by P.Ws. 1 to 5 to be that of Manikandan.  The body was sent to Panruti Government Hospital where inquest  was conducted by P.W.13 on 14.03.2004 at 6.00 a.m. in the presence of witnesses and panchayatdars.  The inquest report is Ex.P.17.  The dead body was subjected to post mortem at the Panruti Government Hospital. Ex.P.9 is the post mortem certificate and P.10 is the opinion given by the Doctor who conducted post mortem. The investigating officer prepared the Observation Mahazar and other sketches.  P.W.13 also took steps to send the viscera for chemical examination.  The hyoid bone was also sent for chemical examination through the concerned Court and the expert's report was obtained.  P.W.13 came to know that the other accused surrendered themselves before Court.  After concluding the enquiry, P.W.13 laid charge sheet against the accused before Court on 26.05.2004 for the offence under Sections 364, 365, 302 and 201 I.P.C."

3.  When the accused were questioned under Section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against them, they denied each and every circumstance put up against them as false and contrary to facts.  Neither any oral evidence nor any documentary evidence was produced on their behalf.

4.  Before the trial Court, the prosecution had examined 13 witnesses, exhibited P.1 to P.22 and marked M.Os. 1 to 4 to prove its case.  After considering all the materials records, the trial Court had come to the conclusion that the prosecution had proved its case only against A.1 to A.3 for the offence under Sections 364 and 201  read with Sec. 34 I.P.C. and for an offence under Section 302 read with Sec. 34 I.P.C. and acquitted A.4 and A.5 of the charges levelled against them.  Challenging their conviction and sentence, A.1 to A.3 are before this Court in this appeal.

5.  Now, we have to see whether the contention of the appellants as raised in the grounds of appeal are acceptable and the appellants (A.1 to A.3) are also entitled for acquittal.

6.  Mr. S. Ashok Kumar, learned senior counsel appearing for the Mr.A.Sasidharan, learned counsel for the appellants, would submit in his arguments that the learned Sessions Judge had accepted the interested testimony of the prosecution witnesses and had come to the conclusion of convicting the appellants (A.1 to A.3) which is apparently not sustainable in law.  He would submit that the prosecution case rests only upon circumstancial evidence and that the prosecution had failed to prove such circumstances without any breakage of link, but however, the trial Court, accepting the last seen theory and the confession of A.3, had arrived at a conclusion that the case projected by the prosecution had formed a complete chain of circumstances and had convicted the appellants as stated above, which is against the norms fixed by the Apex Court of our country.  He had also submitted in his argument that the appellants (A.1 to A.3) also stand in the same footing as that of A.4 and A.5, however, when A.4 and A.5 were given the benefit of doubt, such benefit had not been extended to A.1 to A.3 by the trial Court, which is also not correct.  He had also drawn the attention of the Court to the evidence of P.Ws. 1 to 4 who spoke about the deceased being last seen in the company of A.1 to A.4 and submit that their evidence is full of contradictions and the material particulars spoken to by them are also in dire contradictions with the complaint given by P.W.1, but still it is strange to note that even in such a situation the trial Court had convicted A.1 to A.3 while acquitting A.4 and A.5.

7.  The learned Senior counsel would also submit in his argument that the evidence of P.W.1 did not disclose the presence of P.W.2 at the scene of occurrence where the deceased was last seen in the company of A.1 to A.4, however, the trial Court had mistook the said contradiction as a minor contradiction which is not sustainable in law.  It is also brought to the notice of this Court, by the arguments of the learned senior counsel, that the important person, who is said to have been present at the place where the deceased was lastly seen in the company of the accused, namely the Village Headman by name Super Subburayan was not examined and this is fatal to the case of the prosecution.  However, he would contend in his argument that the delay in giving the complaint by P.W.1 was also inordinate and the same was not explained by P.W.1 properly and that  the trial Court had not gone into all these aspects, and hence, the judgment under challenge is not one which is passed in accordance with law.  It is further argued that the body of the deceased was seized after a long period, in a decomposed stage, and the identity of the body was not condusive but the prosecution witnesses have identified the dead body as that of the deceased Manikandan.    It is also the stand of the learned senior counsel appearing for the appellants that the appellants who were convicted for the offence under Section 364 and 302 I.P.C., even otherwise would not have been convicted for an offence under Section 364 I.P.C. since the autorickshaw driver  P.W.8 had not supported the case of the prosecution.

8.  While summarising his arguments, the learned senior counsel would add that the prosecution had failed in proving the identity of the   body of the deceased as that of Manikandan as well as in connecting the links of other circumstancial evidence except the last seen theory and the non examination of the independent witness would go a long way to show that the case of the prosecution was not established and that the appellants (A.1 to A.3) also ought to have been acquitted by the trial Court.  Therefore, he has submitted that the conviction and sentence passed by the Trial Court against A.1 to A.3 be set aside and the appeal be allowed.

9. In reply, the learned Additional Public Prosecutor Mr.V.R.Balasubramaniam, would submit in his argument that the prosecution had proved its case against the appellants with the available circumstancial evidence collected during the investigation as that is the only way to prove such a case where the dead body was found after ten days.  He would further submit in his argument that the confession statement of A.3 lead to the recovery of the dead body of Manikandan at the place where it was allegedly disposed of by the accused.    The learned Additional Public Prosecutor would bring to our notice that the body was recovered by the police from a borewell with the help of fire personnel after much difficulty and the body was identified to be that of Manikandan by his closest relatives namely P.Ws. 1 to 4.  According to him, the last seen theory spoken to by P.Ws. 1 to 4 coupled with the recovery of body pursuant to the confession statement of A.3 would certainly fasten the criminal liability on A.1 to A.3 and therefore, the conviction and sentence passed by the trial   Court is perfectly justified.  He would also submit that in a case where the dead body was found after ten days the availability of direct evidence is very remote, however, the prosecution had proved beyond all reasonable doubt that the deceased was lastly seen in the company of the accused and it would be sufficient for the Court to come to a conclusion that the accused are presumably guilty of the offence alleged against them.

10.  The learned Additional Public Prosecutor, by taking us through the evidence of P.W.1, would submit that her evidence would show that A.1 had been giving evasive answers when she asked about the whereabouts of her son, after she had lastly seen her son with them.  Relying on the decision reported in 1998 S.C.C. (Criminal) 391  (Sudama Roy @ Jadav and another vs. State of West Bengal)  he would submit that the fact that A.1 had been giving evasive answers to P.W.1 is enough to prove his guilt.  According to P.W.1 on one occasion when she asked  A.1 about her son, he said that her son Manikandan would come in one or two days and on the other occasion, he informed P.W.1 that he had given a sum of Rs.100/- to Manikandan and that Manikandan had gone to Kerala.  The learned Additional Public Prosecutor would further add that such evasive and contradictory answers given by A.1 to P.W.1 would go a long way to show that he had involved himself in the commission of the crime along with A.2 and A.3 and thus, he is liable to be convicted as per the decision of the Supreme Court cited supra.

11.  The learned Additional Public Prosecutor also brought to the notice of the Court the evidence of P.W.10, the Post Mortem Doctor who had corroborated the evidence of other witnesses when she stated in her evidence that the death of the person, whose decomposed body was produced before her, would have occurred 10 or 12 days prior to autopsy.  In other words, her evidence would corroborate the evidence of P.Ws. 1 to 4 who spoke about the fact that the deceased was seen lastly in the company of A.1 to A.4 ten days prior to the date when the body was recovered.  The learned Additional Public Prosecutor had submitted that the over all evidence adduced by the prosecution witnesses would complete the chain of circumstances against the appellants and hence, the appeal preferred by A.1 to A.3 may be dismissed.

12.  We have given our anxious thoughts to the arguments advanced by either side.  The case of the prosecution was that on 04.04.2004, when the deceased Manikandan, son of P.W.1, came to his village from Kerala for attending the Panguni Uthiram Festival at their village, the 1st accused - who was enimically disposed of against him on account of the fact that Manikandan had offered flowers to his daughter - along with A.2 to A.4, had taken Manikandan to one Mariamman Temple where they had beat him and Manikandan became unconscious.  When the act of the accused in beating Manikandan was questioned by P.Ws. 1 to 4  and others including the Village headman, under the guise of handing him over to Police station,  the accused had taken Manikandan in an autorickshaw  M.O.4 belonging to P.W.8, to some other place and caused his death.  Thereafter, the accused had managed to dump the dead body of Manikandan in a borewell near Indira Nagar Alternate Quarters.

13.  The evidence of P.W.1 is to the effect that her son Manikandan was said to have given a flower to the daughter of A.1 and since, A.1 was very much annoyed with Manikandan, she sent her son to Kerala for employment in order to save him from the accused; after some time, Manikandan had come to his native village for celebrating Panguni Uthiram Festival and when he was talking to his friends on one evening, he was taken by A.1 to A.4 for questioning and on hearing the same P.W.1 went to the said place namely Mariamman Temple where A.1 to A.4 had been examining Manikandan.  She saw her son being beaten up by the accused and at that time her son was in an unconscious state. She went and brought the Village Headman. Thereafter, Manikandan was taken from the said place in an autorickshaw by the accused.  The evidence of P.W.1 was corroborated by the evidence of P.W.2, who is none other than the sister of P.W.1.  The contention raised by the learned senior counsel for the appellants would be that the presence of P.W.2 was not mentioned in Ex.P.1-complaint and therefore, the evidence of P.W.2 cannot be relied upon by the prosecution and accordingly, the last   seen theory may not be true.  The complaint was given by P.W.1 on 10.04.2004, which is produced as Ex.P.1.  Admittedly, the complaint is preferred six days after the date when P.W.1 had lastly seen her son near the Mariamman Temple.  The explanation offered by P.W.1 would be that she had approached A.1 on the next day itself i.e. On 05.04.2004 and enquired about her son.  For that A.1 had told her that her son would return in two days.  After the lapse of two days, when she approached A.1 again he had told her that he had paid a sum of Rs.100/- to her son Manikandan and sent him to Kerala.  Not satisfied with the answer given by A.1, when P.W.1 informed A.1 that she is going to give a complaint against him, A.1 told her that she may do so and thereafter only P.W.1 had given the complaint on 10.04.2004 and thus there was a gap of six days from the date when P.W.1  saw her son and the date on which she preferred the complaint Ex.P.1 before the police.  There is no dispute that P.W.1 has given the complaint on 10.04.2004 for tracing her missing son Manikandan whom she saw in the company of the accused.  It is settled law that the complaint, whenever it is registered as First Information Report, is the first step to launch the investigation to be set in motion.  It may not be necessary that all the particulars should be furnished in the complaint itself since the F.I.R. is not an encyclopaedia.  The first information report, which makes the law to be set in motion, would only lead to further investigation.  The investigation may unearth more particulars and details than what is given in the F.I.R.  Therefore, mere non-mentioning of the presence of P.W.2 in Ex.P.1 cannot be held fatal to the whole case of the prosecution.  Therefore, the evidence adduced by P.W.2 can be taken as corroborative evidence to the evidence of P.W.1.

14.   No doubt in the evidence of P.Ws. 3 and 4, they  had also supported the evidence of P.Ws. 1 and 2.  It is pertinent to note here that P.Ws.3 and 4 are independent witnesses who had spoken about the fact that the deceased Manikandan was enquired by the accused near Mariamman temple and  the village headman told the accused that, "Let the police examine   Manikandan,   if any case is pending against him".  They had also spoken to the effect that they had seen the deceased Manikandan's body being recovered from the borewell near Indira Nagar Alternate Quarters.  The said evidence of P.W.3 had also stood the test of cross examination as nothing was elicited in favour of the appellant in the cross examination of P.W.3.  P.W.4 had spoken about the deceased was lastly seen in the company  of the accused at Mariamman Temple on 04.04.2004; he saw the accused beating up the deceased; he tried to interfere and at that time A.1 had told him that it is not his business and he cannot interfere and thereafter, A.1 to A.3 did not heed to the words of the Village headman to hand over Manikandan to police; A.2 going to fetch an autorickshaw; A.1 to A.3 taking the deceased in the said autorickshaw and thereafter, he heard that Manikandan had died. This clear evidence of P.W.4 not only corroborated the evidence of P.W.3 but also supported the evidence of P.Ws. 1 and 2 about the accused beating up Manikandan near Mariamman temple and then taking him in an autorickshaw.  Therefore, it is not correct to say that the prosecution witnesses are interested witnesses and cannot be believed in respect of the last seen theory.

15.  It is also not necessary that the village headman namely Super Subburayan should have been examined for the purpose of proving the last seen theory when especially the evidence of P.Ws. 3 and 4 are quite clear regarding the accused beating up Manikandan near the Mariamman temple.  We have already seen that the evidence of P.Ws.3 and 4 was not shaked in any way by the cross examination of the defence and, therefore, the evidence adduced by P.Ws. 3 and 4, while independently corroborate the evidence of P.Ws. 1 and 2, would  also clinchingly show that the son of P.W.1 namely Manikandan was lastly seen in the company of A.1 to A.3, who had taken him under the guise of questioning to  Mariamman temple; they had beat him there and later, under the pretext of handing over Manikandan to police, they had taken him in an autorickshaw brought by A.2.    Thus, the prosecution had proved the last seen theory.

16.  The next point to be considered is about the identity of the dead body of the deceased as that of Manikandan, which was questioned by the learned Senior counsel appearing for the appellants.  It is seen from the records that A.3 was arrested on 13.04.2004 and pursuant to his arrest he had given a voluntary confession statement which lead to the discovery of the place where the accused had disposed of the body of Manikandan.  The admissible portion of the confession statement of A.3 is marked as Ex.P.3.  P.W.7 was examined to prove the confession and also the preparation of Observation Mahazar of the place where the borewell was located.  The dead body of Manikandan was said to have been taken out from the borewell near Indira Nagar Alternate Quarters on 13.04.2004 with the help of 10 firemen under the leadership of  the Station House Officer, Anbazhagan.  The said fact was spoken to by P.W.11, who is one of the fireman.  According to his evidence, the dead body was taken out from the borewell with much difficulties and they had obtained special apparatus from Neyveli Lignite Corporation and with the help of such special apparatus they had taken out the body of Manikandan from the depth of 200 feet from the borewell.  His evidence would also go to show that for about 15 hours the fire service personnel fought to take out the body, after which the dead body was handed over to the police for further investigation.  The relevant documents were also produced as Exs.P.11 and P.12.  His evidence would also show that Mr.Anbazhagan the Station House Officer was also dead and, therefore, he could not be examined.

17.  On a careful scrutiny of the evidence of P.Ws. 7 and 11, we could see that the dead body was pulled out from the borewell near Indira Nagar on the identification of the place by A.3.  The place chosen by the accused to dump the body  after commission of the offence itself  speaks volumes not only about the intention of the accused to commit the murder but also about the genuinity in the prosecution's case as such a place,  namely a borewell,  to dump a dead body is beyond the imagination of anyone and this particular place would not have been identified by the police except with the assistance and identification by A.3.  In other words, such a place cannot be identifed by any other person who did not commit the offence.  In Ex.P.3, the confession given by A.3, he had confessed that the dead body of Manikandan was put inside the iron borewell near Indira Nagar Alternate Quarters by him along with A.1 and A.2.  Apart from this, P.Ws. 1 to 4 had also spoken to the effect that they were taken by the police to identify the dead body and accordingly they found that the decomposed body recovered from the borewell near Indira Nagar Alternate Quarters was that of Manikandan.

18.  The argument advanced by the learned Senior Counsel was to the effect that the evidence of P.W. 10 would show that the body was recovered in a highly decomposed stage and no cloth, except a white towel around the neck of the body, was found in the body whereas the prosecution witnesses namely P.Ws. 1 and 2 had spoken to the effect that a belt,  a watch and a green towel around the neck was seized from the dead body of the deceased, thus there is contradiction in the version of the prosecution witnesses  and therefore, the dead body recovered from the borewell was that of Manikandan cannot be a true version.  A belt, a green towel and a watch were said to be recovered from the body of the deceased Manikandan and were produced as M.Os. 1 to 3 respectively.  P.Ws.1 and 2 have identified those material objects as found in the said body.  P.W. 10 is the post mortem Doctor who had obviously seen the body  after the material objects stated above have been recovered from the dead body and hence, when P.W.10 saw the dead body no cloth or any other material object were available in the dead body.  In fact, nothing was suggested to P.W. 10 as to the presence of M.Os. 1 to 3 in the dead body at the time of autopsy by the defence.  Taking all the above said circumstances into account,  we are of the considered view that the identification of the borewell by A.3 through his confession, in the peculiar circumstance of the case and the subsequent recovery of the dead body from 200 feet deep borewell, the identification of the body by P.Ws. 1 to 4 to be that of Manikandan,  are all amply sufficient to prove the guilt of A.3 in the commission of the crime.  The discripencies, even if any available, regarding the presence of M.Os. 1 to 3 in the dead body may not be fatal one as to the identity of the body to be that of Manikandan.

19.  Nextly, we have to see whether the recovery of the body on the identification of the place of disposal by A.3 through his confession would also fasten the criminal liability against A.1 and A.2 on the strength of the last seen theory spoken to by P.Ws. 1 to 4.  No confession was given by A.1 and A.2 since they were not taken into police custody after they surrendered themselves to judicial custody.    Can the confession given by A.3 referring to the names A.1 and A.2, who helped him to dispose of the body of the deceased Manikandan inside the iron borewell near Indira Nagar Alternate Quarters,  be put against A.1 and A.2 based on the other links for completing the circumstancial evidence is a question to be considered now.  It is settled law that the confession of the co-accused cannot be put against the other accused in order to decide their criminal liability.  Therefore, we have to see whether any other link is available to connect A.2 and A.3 in the crime.    Even though the autorickshaw owner had turned hostile, it has come out in the evidence of P.W.4 that A.1 to A.3 had taken Manikandan in an autorickshaw belonging to P.W.8.

20.  According to the Additional Public Prosecutor, the evasive answers given by A.1 to the enquiries made by P.W.1 as to the whereabouts of her son would certainly incriminate A.1 in the kidnapping and the murder of Manikandan as per the dictum rendered by the Supreme Court in the decision reported in 1998 S.C.C. (Crl.) 391 (Sudama Roy alias Jadav and another vs. State of West Bengal).   The relevant paragraph reads thus,
" 6.  The deceased was last seen in the house of Appellants 1 and 3.  The appellants gave false and evasive replies to PW 1, the mother of the deceased when she repeatedly inquired about the whereabouts of her daughter.  They have concocted evidence to falsely show that the deceased was alive in August 1983.  The spot where body was buried was pointed out by Accused 1.  Looking to the circumstancial evidence which has been discussed in detail by the Sessions Court as also by the High Court, both the courts have convicted these two appellants under Section 302 as also under Section 201 of the Indian Penal Code.  We do not see any reason to take a different view."

In the said judgment the Supreme Court had held that the last seen theory of the deceased and the evasive reply given by the accused in the said case when the mother of the deceased enquired about the fate of her daughter would be sufficient circumstantial evidence for ending in conviction as arrived at by the learned Sessions Judge and the High Court.  We could see that the facts of the present case would squarely apply to the facts of the said case discussed in the judgment of the Apex Court.  Therefore, the evasive replies given by A.1 in this case as spoken to by P.W.1 would be sufficient to support the last seen theory to form a chain of circumstances against A.1.

21. The learned Additional Public Prosecutor would also draw the attention of the Court that the evidence of P.W.4 was to the effect that on 04.04.2004 the accused A.1 to A.3 had beat Manikandan near Mariamman temple, under the guise of enquiring him and thereafter, they took him to the house of A.2 in an autorickshaw brought by A.2.   The accused did not deny this evidence by putting any suggestion to P.W.4 in cross.  In other words, there was no cross examination by the defence on this aspect. Therefore, the  part played by A.2 in the commission of the offence, namely bringing the autorickshaw M.O.4 to take Manikandan to his house stands establsihed. This evidence available against A.2 would be sufficient for holding A.2 guilty of committing the offence alleged against him, along with A.1 and A.3.    Thus, the chain of circumstancial evidence as against A.2, namely, he, along with A.1 and A.3, was lastly seen near Mariamman temple questioning and beating Manikandan; later Manikandan was taken by all the three in an autorickshaw to A.2's house and thereafter, the body of Manikandan was recovered from the borewell identified by A.3 through his confession,  is a complete chain with all the links connected to each other.  These chain of circumstances are not available for A.4 and A.5 in order to fasten the criminal liability on them.  Therefore, the argument advanced by the learned senior counsel to the effect that A.1 to A.3 also stand in the same footing as that of A.4 and A.5 and so they are also entitled to an order of acquittal, cannot be sustained.

22.  On a overall view of the evidence placed before Court and as discussed above, we are of the considered opinion that the circumstancial evidence as spoken to by P.Ws. 1 to 4 as to the last seen theory was supported by other material evidence and that the links of the circumstantial evidence is complete as against A.3 by the confession given by him;  the evasive replies given by A.1 had made it complete as against A.1 and the act of A.2 in bringing the autorickshaw and taking Manikandan to his house had made the chain of circumstancial evidence complete as against A.2 and therefore, the conviction and sentence passed by the trial Court against A.1 to A.3 for an offence under Sections 364 and 201 read with 34  and 302  read with 34 I.P.C. is perfectly justifiable and we see no reason to interfere with the said judgment.  Accordingly, the appeal deserves no merit and the same is dismissed confirming the judgment of conviction and sentence passed by the learned Session Judge.  The trial Court is directed to take steps to secure the presence of the accused and commit them to prison to serve the rest of the sentence.





Index    : Yes / No   ( D.M.J. ) ( V.P.K.J. )
Website : Yes / No     31..03..2008
gp



To

1.  The District Munsif cum Judicial Magistrate,
     Neyveli.

2.         - do -  through The Chief Judicial Magistrate,
     Cuddalore.

3.  The Principal Sessions Judge,
     Cuddalore Division, Cuddalore.

4.  The Public Prosecutor,
     High Court,
     Madras.

5.  The Inspector of Police,
     Neyveli Township Police Station,
     Cuddalore District.

6.  The District Collector,
     Cuddalore.

7.  The Director General of Police,
     Chennai  600 004.

8.   The Superintendent,
      Central Prison,
      Cuddalore.
 


NKKP RAJA HABEAS CORBUS


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.08.2008

CORAM:

THE HON'BLE MRS.JUSTICE PRABHA SRIDEVAN
AND
THE HON'BLE MR.JUSTICE V.PERIYAKARUPPIAH

H.C.P. Nos.1092 and 1114 of 2008


1. N.Elangovan .. Petitioner in HCP.1092 of 2008

2. Er.N.Subramani .. Petitioner in HCP.1114 of 2008


vs.

1. State: rep. By the Inspector
of Police,
   Perundurai Police Station
   Perundurai, Erode.

2. The Superintendent of Police,
   Erode District.

3. N.K.K.P. Raja

4. D.Sampathkumar .. R1 to R4 in both HCPs.

5. P.A.Sundararajan
6. M.Sundaram
7. Gopinath
8. O.C.Viswanathan .. R5 to R8 in HCP.1092/2008

9. Chinnappan
10.K.P.Samy
11.Gopinath
12.O.C.Viswanathan .. R5 to R8 in HCP.1114/2008


PRAYER : Petitions filed under Article 226 of the Constitution of India praying for the reliefs stated therein.
-----

For petitioners: Mr.K.M.Vijayan,
 Senior Counsel
For respondents: Mr.P.Kumaresan, APP for R1 & R2
 Mr.S.A.Ashok Kumar,
 Senior Counsel for
 Mr.N.Manokaran for R3.
   Mr.V.Raghavachari for R4 to R6
 Mr.V.Gopinath,
 Senior Counsel for
 Mr.R.Johnsathyan for R7 & R8.

-------

COMMON ORDER


(Order of the Court was delivered by PRABHA SRIDEVAN, J.)

These two habeas corpus petitions have been filed alleging that respondents 3 to 8 (among whom, respondents 7 and 8 in both petitions are one and the same, and respondents 5 and 6 in each of the petitions are different persons) have illegally detained the detenus mentioned in each of the  habeas corpus petitions and their properties have been illegally destroyed with the help of bulldozers and rowdy elements.

2. As far as H.C.P.No.1092 of 2008 is concerned, the prayer is to direct respondents 1 and 2 to produce the detenus viz., (i) P.C.Palanisamy, s/o. P.S.Chinnasamy, (ii) Malarvizhi, w/o.P.C.Palanisamy and (iii) P.Sivabalan, s/o.P.C.Palanisamy bodily before this Court and set them at liberty.

3. As far as H.C.P.No.1114 of 2008 is concerned, the prayer is to direct respondents 1 and 2 to produce the detenu viz., P.C.Gugamani, S/o.Chinnasamy Gounder bodily before this Court and set him at liberty from the illegal custody of respondents 3 to 8.

4.  As seen from the affidavit filed in support of HCP No.1092 of 2008, the detenus own approximately 10 acres of property in Perundurai village and there is a claim for title over the said property by one Gnanamuthu.  According to the affidavit, respondents 5, 6 and 7 claimed that the aforesaid person had executed the sale deed in their favour.  There is some property dispute between the alleged detenus and respondents 5 to 7.  It is stated that respondents 3 and 8 also forced the detenu in HCP No.1114 of 2008 to participate in the panchayat.  It is alleged that a 'kattapanchayat' was also held.  It is further alleged that on 22.7.2008, two hundred goondas headed by respondents 4 to 7 entered into the property of the detenus, destroyed their dwelling house and coconut trees and had also abducted them.  In these circumstances, since respondents 1 and 2 allegedly did not take any action on the complaint, HCP No.1092 of 2008 was filed.

5. As far as HCP No.1114 of 2008 is concerned,  the preliminary facts stated therein and the facts stated in HCP No.1092 of 2008  are almost similar.  In addition to that, in the affidavit filed in HCP NO.1114 of 2008, there is a reference to the admission of the filing of the earlier petition in HCP No.1092 of 2008.  There is also a reference to the alleged instruction of the third respondent to demolish the property of the detenus.  The petitioner in HCP No.1114 of 2008 is the brother-in-law of the alleged detenu.  According to him, soon after the occurrence, he immediately called the second respondent on the cell phone, but the entire State machinery remained mute.  In paragraph 8 of the affidavit, it is stated that the detenu himself had given a complaint before the Inspector of Police.

6. All the three detenus in HCP No.1092 of 2008 were produced before the Court on 29.7.2008 and a detailed order has been passed on that day, which we will extract later. Since the first and second detenus expressed an  apprehension regarding their lives, they were permitted to stay at Chennai in a relative's house.

7. On 26.8.2008, the detenu in HCP No.1114 of 2008 was present before the Court. Though he made a reference to the suffering undergone by him and all that had transpired, he claimed that the Minister's (the 3rd respondent herein) men were responsible for such acts and that when he came out from the place where he was staying, the Police brought him   to the Court.  He was highly emotional and appeared to be in a state of extreme stress.  Therefore, as on date, all the four persons are not illegally detained.
8. Learned Senior Counsel appearing for the petitioners would submit that though it would appear that the detenus are free to move, but in actual fact, their lives are being endangered.  Therefore, it cannot be said that they are free to move and are really at liberty.  It is also submitted that the parents of the first detenu and the parents-in-law of the second detenu in HCP No.1092 of 2008 are aged and therefore, the detenus expressed their desire to go back to Perundurai village.  Learned Senior Counsel also submitted that the third respondent has been removed from the Cabinet since it was found that there is a prima facie material against him.  But the first respondent, in his counter affidavit, had stated that 'the investigation reveals that the third respondent has no involvement in the said occurrence', which according to the learned Senior Counsel would indicate that the investigation will not go on fairly and freely and there would be pressure from else where.
 
9. Learned Senior Counsel appearing for the petitioners would further submit that if time is given, they would produce the documents from the Village, which they could not,  fearing safety for their lives and therefore, they do not have all the documents in their possession.   Learned Senior Counsel further submitted that the petitioners would have filed appropriate application for change of the investigation agency but for paucity of time.  Learned Senior Counsel submitted that it is not the petitioners' prayer that the investigation should be monitored continuously, but that the investigation should be done in a manner that would infuse confidence in the minds of the persons aggrieved.

10.  Learned Senior Counsel appearing for the petitioners submitted that the stand taken by the Police that the detenu in HCP. 1114 of 2008 was free and was at liberty to do whatever he wanted is not correct and threatening calls are being made from cell phones belonging to the third respondent and if time and opportunity is given, it would be possible for the petitioners to demonstrate the involvement of the said respondent.

11. An affidavit was also filed by detenus 1 and 2 dated 29.7.2008, wherein they have given the details as to how they were taken away and how they were forced to sign certain documents and under what circumstances they were released.

12. When the matters were taken up this morning, the learned Senior Counsel appearing for the petitioners prayed for time till 2.30 p.m. to file a reply affidavit to the counters filed by the Police.  However, the learned Senior Counsel has now filed an application for extension of time for production of documents, which we are not inclined to consider to be necessary at this stage and hence the said request is rejected.

13.  The third respondent has filed a counter affidavit denying all the averments and stating that the habeas corpus petitions themselves are motivated.  According to the learned Senior Counsel appearing for the third respondent, the third respondent has no involvement either with regard to the civil dispute or with regard to any of the alleged illegal acts.  According to respondents 4 to 6, who have filed their common counter affidavit, there is actually a civil dispute with regard to the property and these habeas corpus petitions themselves are a ruse to settle those civil disputes by this oblique method.  Respondents 7 and 8 have filed a common counter affidavit denying all the allegations and have stated that there is nothing to show that respondents 5 to 8 have abducted the petitioners.

14.  The first respondent has filed a counter affidavit stating that a special team had been constituted to find out the detenu, viz., P.C.Gugamani, in HCP No.1114 of 2008 and that they have registered two cases in respect of the occurrences dated 22.7.2008 and 25.7.2008 and that it is not correct to state that the investigation process is not going on as such it should.  Paragraph 3 of the said counter affidavit is extracted hereunder:-
"3. I submit that the allegations in para. Nos.4 to 13 of the affidavit are hereby stoutly denied as not correct.  In fact, there was a complaint at the instance of one Gugamni and that a case in Crime No.650 of 2008 had been registered for the offences under Sec.147, 148, 448, 427 and 363 IPC.  The said complaint was received by post on 24.7.2008 and the investigation is pending.  During the course of the investigation in Crime No.650 of 2008, I have examined 40 persons and recorded their statements.  Subsequently, the petitioner in HCP No.1114 of 2008 has given a complaint dated 26.7.2008 and it has been registered as crime No.671 of 2008 on 28.7.2008 for the offences under Sections 147, 148, 447 448, 427, 363, 506(ii) and 379 (NP) IPC against O.C.Viswanathan, K.P.Swamy, Gobinath, Chinnappan and others.  As per the allegation in the complaint, on 25.7.2008 the respondents 4 to 8 and others committed trespass by damaging the properties of the above said Gugamani and that the investigation in Crime No.671 of 2008 is in progress."

15. It is also stated that the investigation in both the cases are in progress and that respondents 5 to 7 have obtained anticipatory bail before this Court.  They have denied the allegation that the Police failed to register a case.  They have also stated that the entire matter is under thorough investigation by the Police.  A status report is also filed by the first respondent with regard to the complaint received at 10 a.m. on 24.7.2008, the registration of the case, proceeding to the scene of occurrence and examination of five persons at that stage.  It is further stated that  a rough sketch and an observation mahazar have been prepared at 11.30 a.m. on the same day itself.  It is on 25.7.2008  the first respondent received information about the filing of HCP No.1092 of 2008 before this Court and thereafter, on the basis of the statement of  Sivabalan, the offences were altered.  On 28.7.2008 at 11.30 a.m., the first respondent received a complaint from the petitioner in HCP No.1114 of 2008 and immediately, a case was registered in Crime No.671 of 2008.  The status report refers to the recording of the statements of the witnesses and that the household utensils and tractors were recovered and the properties of the first respondent and his family members have also been recovered allegedly in pursuance of confessions given by A.28.

16.  The status report filed in HCP No.1114 of 2008 also refers to the steps taken by the first respondent to trace the tower location with regard to the mobile phones of the alleged detenu, the examination of witnesses and also examination of the Post Master to ascertain the origin of the letter said to have been written by Guhamani from Perundurai. It also refers to the seizure of three vehicles under mahazar which were allegedly involved in Crime Nos.650 and 671 of 2008 and there is also reference to the production of Guhamani on 26.8.2008. Further, there is a reference to the arrest of three persons on 24.8.2008 and also to the effect that Guhamani was secured from one hotel at Periyamedu, Chennai.

17. Learned counsel appearing for respondents 3 to 8 submitted that the habeas corpus petitions cannot be used to fish out evidence to support the case of the petitioners.  It is also contended that after having executed certain documents, this habeas corpus petitions are filed as an abuse of process of law to get away from the obligations of the petitioners under the documents validly executed by them.  It was also submitted that the detenus themselves are powerful persons.

18. As far as we are concerned, Courts have to protect rights of all.  If even a powerful person finds himself in this hapless situation, what about the weak and the powerless?

19. Learned Additional Public Prosecutor would submit that there is nothing to show that the police has not acted promptly or that the Police has acted without diligence.  On the other hand, the complaint has been registered immediately and properties have been recovered, statements have been recorded without any delay and it was also submitted that the transfer of investigation agency cannot be done for the asking and for this purpose, the following decisions are relied upon and the relevant paragraphs therein are extracted hereunder:
(i) 2003 SCC (Cri.) 1314 (Union of India v. Prakash P.Hinduj),
"20.Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) CrPC, this field being exclusively reserved for the investigating agency.
(ii) AIR 2008 SC 1614 (Divine Retreat Centre vs. State of Kerala),
"33. The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code.  However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one's own choice.  The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself.
34. In our view, the High Court in exercise of its inherent jurisdiction cannot change the Investigating Officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge.  Such communications cannot be converted into suo motu proceedings for setting the law in motion.  Neither the accused nor the complainant or informant are entitled to choose their own investigating agency to investigate a crime in which they may be interested."

20. The allegations made by the petitioners are very serious in nature, as noticed by the Division Bench in the order dated 29.7.2008 and the relevant portion of the said order has been extracted  hereunder:-
"3. We enquired Mr.P.C. Palanisamy, the detenu.  He has narrated the incident in detail.  According to him, he is the owner of an extent of 10 Acres of land in the above said Survey Numbers and he has got a house, where he, his wife, son and aged parents are living.  He is doing agriculture apart from maintaining some cattle.  Respondents 5 to 7 forced him to execute sale deed in their favour, which was not accepted by him. On 22.07.2008 at about 8.00 p.m. P.C. Palanisamy, his wife-second detenu and his son- third detenu were forcibly taken in a car with the assistance of number of henchmen of respondents 5 to 7 and they were forced to sign certain documents and for the said purpose they were tortured. Thereafter they were taken to one Bharat Mill building and were kept in confinement. He was forced by the third respondent to sign the blank papers and he refused, he was threatened with dire consequences. As he could not tolerate the harassment and torture, he has signed some blank papers.  Thereafter one Registrar and Document writer  were brought along with documents in which they were forced to sign and thereafter only he and his wife were let off on 27.07.2008, that too they were taken out in a car and thrown out in an unknown place.
 4. When he came to know of the petition filed by his son-in-law before this Court, he contacted him and appears before the Court through his advocate.  He has also stated that the house in which he and his family members were living was completely damaged and in addition nearly 1000 200 coconut trees were also uprooted by 200 men employed by the respondents.   He has left with no property except the clothes which he is wearing, and as he has no place to live in his village namely Perunthurai and there is no safety and security for himself and his family members' life, he is not inclined to go back to his village.  He has sought for a direction from this Court not only for a safe place to live but also protection for his life and his family members.
5. We also enquired the second detenu viz., Malarvizhi, wife of the first detenu.  She also narrated the entire incident.  Her statement also reflects exactly what the first detenu has stated before us.  She also has  expressed her apprehension of threat the life of herself and family members and she pleaded for accommodation and protection for her life.
6. We enquired third detenu by name Sivabalan.  He claims that on 20.7.2008 he left the village to Mookambigai Temple and he came back only on 27.07.2008 and on coming to know through one of his friends that a case has been registered, he went to the Police Station, who produced him before this Court. When we asked a specific question as to whether he has visited his house at Perunthurai, he has stated that he has not visited the house and he does not know what happened to the house. However, with great reluctance he has stated that he is not prepared to tell all that had happened."

Personal safety of the detenus:
  The habeas corpus petitions were filed for production of the detenus and the detenus are present in Court and they also want to go back to their home town. There is prima facie material to show from the order dated 29.7.2008 extracted above that these persons had to leave their home town and they have no place to live in their village and there is no safety and security for themselves. Learned  Additional Public Prosecutor submits that when they go back to their home town, there will be sufficient protection.  We have recorded the statement made by the learned Additional Public Prosecutor to allay the fear of the detenus.

The detenus' property:
Paragraph No.9 of the counter affidavit filed by the first respondent reads as follows:-
9. I submit that the averment of the petition in Paragraph No.11 that the respondents 1 and 2 are  acting on the direction of the 3rd respondent is false and defamatory.  The other averment that several complaint were sent to respondents 1 and 2 by the family members of P.C.Palanisamy is denied as incorrect.  It is true that the house property and the coconut tree grove of P.C.Palanisamy have been destroyed by the said accused including respondents 4 to 8, but the investigation reveals that the third respondent has no involvement in the said occurrence."

It was submitted by the opposing counsel that the right to the property cannot be decided in a habeas corpus petition.  But, even as per the counter affidavit filed by the Police, it is the property of the detenus that were destroyed on the particular day.  As to the allegations regarding who destroyed the property, they will be decided in a manner known to law and any right claimed by the respondents with regard to property will also be decided in a manner known to law.  But, as on date, even as per the Police statement, it was the petitioners' property which was destroyed, as seen from the above.  This status shall continue.  The learned Additional Public Prosecutor would further submit that even with regard to the property, there will be sufficient protection against illegal encroachments.   This statement is recorded to allay the fear of the detenus.

Role of the Police:
At this juncture, we only want to point out one thing.  Learned Senior Counsel appearing for the petitioners repeatedly said that the averments in paragraph 9 of the counter affidavit filed in HCP No.1114 of 2008 would indicate that the Police has already pre-judged the issue.  Learned Additional Public Prosecutor has denied it was so and he also submitted that the investigation is going on  without any external influence and in a fair manner.  But we would only like to point out that when counters are prepared, more caution should be exercised since the Police is always neutral and it cannot take a stand either in favour of the complainant or the so-called accused.  The Police is there to see that investigation is done properly and the law is enforced.  The Police should take care that their counters are not filed as though they are adversaries to the litigation.  Neutrality should be maintained especially in view of the particular sentence pointed out by the learned Senior Counsel appearing for the petitioners regarding the involvement or non-involvement of the third respondent.   The Police should take care that they are not referred to as mute spectators when something untoward has happened.

21. We are not inclined to order transfer of investigation machinery at this stage,  in view of the judgments cited by the learned Additional Public Prosecutor, we would just like to refer to paragraph 12 of the judgment of the Supreme Court reported in (2006) 8 SCC 1(Prakash Singh v. Union of India) so that the investigation team would act in a manner that will not in any way take away the faith and confidence of the complainants and the public:
"12. The commitment, devotion and accountability of the police has to be only to the rule of law.  The supervision and control has to be such that it ensures that the police serves the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures.  Its approach has to be service oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the rule of law becomes a casualty, the guilty police officers are brought to book and appropriate action taken without any delay."

22. Learned Senior Counsel for the petitioners has prayed for extension of time to produce certain documents.  The investigation of the case is in progress and at the appropriate time, it will always be open to the petitioners to produce whatever documents that are in their possession to support the case of the prosecution.  The rejection of the request for extension of time herein will not bar their right to produce the documents.

23. Any observations made by us either in this order or in the open court cannot be construed as any opinion formed by us or finding given by us so as to influence any Civil Court dealing with the dispute between the parties or any Criminal Court dealing with the trial of the case that will follow after the investigation is completed.  Any observation made by us was only to elucidate the matter and clarify certain doubts.  They are not to be construed as findings.

24. So far as the the habeas corpus petitions are concerned, the grievance was that certain persons were kept in illegal detention.  Now, they are produced before the Court and they themselves desire to go back to their village.  In view of the statements given by the learned Additional Public Prosecutor with regard to the safety of the person and the property, we think that no further orders are necessary in the habeas corpus petitions and they are accordingly closed.  It is always open to the parties/detenus, if they are aggrieved, at any time in future, to move proper applications before the civil forum and the criminal forum, including claims for compensation and this order will not stand in their way from doing so.  All the four alleged detenus are present in Court and their desire is to go to their home town, Perundurai, which they are free to do.


gs. (P.S.D., J.)  (V.P.K., J.)
27th, August 2008.

Index:Yes/No.
Internet:yes.

To
1. The Inspector of Police, Perundurai Police Station
   Perundurai, Erode.
2. The Superintendent of Police,  Erode District.
3. The Assistant Commissioner of Police, Adyar, Chennai.
4. The Public Prosecutor, High Court, Madras.


Note to office:  Issue on 29.8.2008.

gs.

PRABHA SRIDEVAN, J.
And
V.PERIYAKARUPPIAH, J.


















H.C.P. Nos.1092 and 1114 of 2008

















27th, August 2008