Skip to content


In Re : S. Kuppusami Aiyar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1915)28MLJ505
AppellantIn Re : S. Kuppusami Aiyar
Cases ReferredChandi Pershad v. Abdur Rahman I.L.
Excerpt:
- - while admitting the general power of the high court, their lordships state that the interference should be rare and only in exceptional cases and that the safe practical test would be to see whether a bare statement of the facts of the case without any elaborate argument should be sufficient to convince the court that it is a fit case for interference, at an intermediate stage. their lordships quashed the proceedings in the particular case as they were of opinion that 'it is clearly most unfair to the accused that he should not be called upon to rebut a charge which upon the evidence, is baseless in so far as it affects him. assuming that the request to go out of the house was accompanied by the words 'badava, rascal' it cannot be said that the object or intention was to provoke a..........in chandi pershad v. abdur rahman i.l.r. (1894) c. 131 it was held that the high court had power to interfere at any stage of a case if it considers that the grounds have been made out for interference. their. lordships at page 138 observe as follows: 'we feel bound to say that mr. pugh did not attempt to contend that the charges framed against chandi pershad could be sustained. he rather confined himself to urging the impropriety of our interference at a time when the case is still pending before the magistrate. there can be no doubt, however, that we have the power to interfere at any stage of the case, and when it is brought to our notice that a person has been subjected for over two months to the harassment of an illegal prosecution, we think it is our bounden duty to.....
Judgment:
ORDER

Kumarasami Sastri, J.

1. This is an application under Section 435 of the Code of Criminal Procedure and Section 15 of the Charter Act praying that the charges framed against the petitioner by the Second Class Magistrate of Tranquebar may be quashed.

2. The case for the accused is that he was charged under Sections 189 and 504 of the Indian Penal Code, that the evidence on record is insufficient to substantiate either of the charges and that the proceedings were instituted out of pure malice and with the object of harassing the petitioner.

3. A preliminary objection has been taken by the Public Prosecutor as to the maintainability of the petition and the power of the High Court to interfere. So far as the power of the High Court is concerned the point seems to be concluded by authority. In Chandi Pershad v. Abdur Rahman I.L.R. (1894) C. 131 it was held that the High Court had power to interfere at any stage of a case if it considers that the grounds have been made out for interference. Their. Lordships at page 138 observe as follows: 'We feel bound to say that Mr. Pugh did not attempt to contend that the charges framed against Chandi Pershad could be sustained. He rather confined himself to urging the impropriety of our interference at a time when the case is still pending before the Magistrate. There can be no doubt, however, that we have the power to interfere at any stage of the case, and when it is brought to our notice that a person has been subjected for over two months to the harassment of an illegal prosecution, we think it is our bounden duty to interfere.' In Choalal Das v. Anant Pershad Misser I.L.R. (1897) C. 233 it was held that the court had power to interfere in any case and at any stage and the above passage from Chandi Pershad v. Abdul Rahiman I.L.R. (1894) C. 131 was approved. While admitting the general power of the High court, their Lordships state that the interference should be rare and only in exceptional cases and that the safe practical test would be to see whether a bare statement of the facts of the case without any elaborate argument should be sufficient to convince the Court that it is a fit case for interference, at an intermediate stage. In Jagat Chandra Muzumdar v. Queen Empress I.L.R. (1899) C. 786 the power of the High Court to interfere in any case and at any stage was referred to and their Lordships found that in cases where there is some manifest, and patent injustice apparent on the face of the proceedings calling for prompt redress the High Court has power to interfere. Their Lordships quashed the proceedings in the particular case as they were of opinion that 'it is clearly most unfair to the accused that he should not be called upon to rebut a charge which upon the evidence, is baseless in so far as it affects him.' In Queen Empress v. Nageshappa I L.R (1895) B 543 it was held that the High Court could interfere with an interlocutory order passed by a Magistrate and Mr. Justice Ranade observed as follows: 'A preliminary objection was raised by the Government pleader that, as the proceedings before the Magistrate were still pending, this Court could not interfere with an order passed by the Magistrate in an interlocutory stage. The words used in Section 435 of the Cods of Criminal Procedure are, however, very general and empower the High Court to send for the record of a casa not only where it wishes to satisfy itself about the correctness of any finding, sentence or order but also as to the regularity of any proceedings in Subordinate Courts. In Abdul Kadir 'Khan v. Magistrate of Purneah (1873) 20 W.R. 23 Cr. the High Court of Calcutta expressly ruled that it had jurisdiction to revise interlocutory orders. This power was again exercised by the same court in respect of an illegal Municipal prosecution Chandi Pershad v. Abdur Rahman I.L.R (1891) Cal. 13. We follow these decisions and overrule this preliminary objection urged by the Government Pleader.'

4. There can thus be little doubt that, though the power has to be exercised with great care, the High Court has jurisdiction to interfere at any stage of the proceedings, if it considers that, in the interests of justice, it should do so. No hard and fast rule can be laid down as regards the class of cases in which the High Court will interfere.

5. In the present case the accused is charged with offences under Sections 189 and 504 of the Indian Penal Code.

6. A careful consideration of the prosecution and the exhibits filed in the case leads me to the conclusion, 1. that the ingredients necessary to constitute an offence under Sections 189 and 504 have not been made out, and (2) that the case as presented to the Court bears considerable evidence of fabrication and that the development that the case has undergone from the first report of the process server dated 21-4-14 shows that this is not a bonafide prosecution but that the complainant is a tool in the hands of others.

7. The case for the prosecution is that the accused (who is a respectable pleader) obstructed the service of summons on his father whom he had subpoenaed as a witness for his client. There is absolutely no motive suggested why accused should have done so and the whole story is on its face improbable.

8. Before an offence under Section 189 of the Indian Penal Code can be made out it must be shown that there was a threat of injury to a public servant for the purpose of inducing him to do any act or forbear or delay to do any act connected with the exercise of his public function.

9. In the present case it is admitted that the summons was tendered to the witness before the accused appeared on the scene. Though the complainant does not stick to one story as to when the witness signed his name there can be little doubt that he was served with the summons. I cannot help observing that the story told by the prosecution 1st witness bears considerable traces of addition and improvement if reference be made to his sworn endorsement on the complaint. The endorsement shows that summons was served in the house of the accused and that there was no threat of violence but only abuse. The whole of the story about the street scene which is inconsistent with the version in the endorsement on the summons is an afterthought and in my opinion false.

10. There is nothing to show that the accused intended to obstruct service or as a matter of fact obstructed it, Ser vice of summons is complete when it is tendered to the witness and his refusal to sign the original makes no difference. Rule 10 of O. V of the Code Civil Procedure states that service of a summons shall be made by delivery or tendering a copy of a summons. If the party refuses to sign the acknowledgment, all that the process server has to do is to affix it. Rule 8 of O. XVI of the Code of Civil Procedure enacts that service of summons on witnesses shall be in manner prescribed in O.V.

11. The endorsement on the summons is to the effect that after tender of summons to the witness the accused came up, abused the process server and asked him to get out of the house and that the witness immediately afterwards received the summons and batta and signed his name. Assuming that accused abused the process server, it will not constitute an offence under Section 189 of the Indian Penal Code.

12. As regards the charge under Section 504 mere abuse will not do without an intention to cause breach of the peace or knowledge that a breach of the peace is likely. There is nothing to show that the accused had any such intention or knowledge. The endorsement on the summons does not warrant any such inference.

13. It appears from the subpoenea that it was to be served on the witness who is described as residing at No. 6 Pattamangalam Agraharam, Kasba Mayavaram. The process server has power to enter that house in order to effect service. He however went inside the house of the accused in Vellalar Koil Rettai Street without permission and the accused is said to have abused him and asked him to get out.

14. I do not think that the fact of a subpoena being entrusted to a process server gives him a general right of entry into any house without obtaining the permission of the owner or person in charge. Such a general power to enter any house at any time is not given by any of the provisions of the code and would in my opinion be a serious violation of private rights. The mere fact that the owner asked the process server to get out of his house would not be an offence. Assuming that the request to go out of the house was accompanied by the words ' Badava, Rascal' it cannot be said that the object or intention was to provoke a breach of the peace however improper the language may the case was fully argued on both sides and giving it my best consideration I think that this is a case where I ought to interfere. It is easy to see what injury is likely to be inflicted on a respectable pleader by a vexatious and protracted criminal trial. It may be that after a protracted trial the accused will be acquitted but that does not appear to be a sufficient ground for not saving him from what I consider to be a groundless and vexatious prosecution.

15. I quash the proceedings in the Lower Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //