Decided on November 15,1955

STATE Respondents


- (1.) THIS is an application under S. 439 and 561a of the code of Criminal Procedure, 1898. Seeking to quash a criminal prosecution initiated by the State against the petitioner for alleged commission of offences punishable under S. 324 and 326, I. P. C. The case is pending before the first Class Magistrate of Nedumangad as C. C. No. 473 of 1955. 0n 28. 7. 1955 the petitioner filed a petition before the court to cancel the process issued against him and to order his discharge. The grounds, therefor, were set out therein as follows: "the charge sheet clearly shows that the accused fired in the exercise of the right of private defence, of person and property. As nothing is an offence done in the exercise of that right, the charge sheet does not disclose any offence as having been committed by the accused. Under the circumstances it is respectfully submitted that the prosecution of the accused, amounts to an abuse of process of law". The learned Magistrate's order thereon is in these terms: "i don't consider that it is necessary for me to stop at this stage and hear on this petition. Prosecution will adduce evidence". The present application is to revise this order and to quash the proceedings.
(2.) THE grounds on which the High Court will interfere to quash a criminal proceeding pending before a subordinate court are well-known and this Court had occasion to consider them in the decision reported in 1951 k. L. T. 344. Prior to that in (1111) X Travancore Law Times 12 and in (1124) XL cochin Law Reports 153, the erstwhile High Courts of Travancore and Cochin had laid down the conditions which would justify the High Court's interference to quash a pending prosecution before a Subordinate Court almost in the same terms as those contained in 1951 K. L. T. 344. Decisions of other High Courts in India to which my attention was invited during the course of the arguments do not enunciate the principles differently. It is therefore unnecessary for me to refer to all these cases. Most of them are referred to in the Travancore and cochin cases mentioned above. Barring decisions which came into existence since then, of which reference need be made to two alone namely, A. I. R. 1954 Punjab 193 and A. I. R. 1955 Allahabad 531, I content myself by citing a decision of the chief Court of 0udh wherein Wazir Hasan, C. J. , made an exhaustive review of the case-law bearing on the point then available. THE case is reported in A. I. R. 1933 0udh 387. THE learned Chief Justice said there that broadly speaking the high Court will generally interfere in the interests of justice and to stop the abuse of the process of law. The cases referred to above and other decisions cited at the bar are all agreed that when the complaint or the police charge sheet initiating the prosecution does not disclose the commission of any offence, the high Court should not allow the prosecution to be proceeded with lest it should amount to harassment of the accused and abuse of the process of the court. In the case in hand, as stated by the petitioner in his application before the lower court, the police charge sheet does not disclose any offence as having been committed by the petitioner. The petitioner is the Manager of a tea estate in Kallar and on the morning of 1. 2. 1955 a large army of labourers, nearly 600 strong, invaded his residential bungalow, destroyed and looted articles kept there, set fire to the building and a number of them entered the rooms where he and other members of his family had taken shelter. At that stage the petitioner is alleged to have fired at the invading army. Some bullets hit two among them but in unambiguous language the charge-sheet itself states that the petitioner fired at the rioters when fully satisfied that unless that was done, he and the other members of his family would be done to death by them. Indeed it is difficult to make a clearer statement than what is contained in the charge-sheet to show that the petitioner acted in the exercise of the right of defending his own person and the body of the other members of his family as also in defence of property. 0n these admitted facts it is surprising that the police thought of launching a prosecution against the petitioner. It is clear they knew well that the case would not stand, but they would appear to have been afraid not to file a charge-sheet. The learned Magistrate also did not do his duty properly in refusing to pass an order of discharge under S. 253 (2), criminal Procedure Code when the petitioner moved him in that behalf. I feel happy to note that Shri. R. Narayana Pillai, the learned Public Prosecutor, who represented the State before me very properly admitted that it was unthinkable how this prosecution could be sustained and that it would be sheer abuse of the process of law to permit the case to proceed. For my part I feel that I will be abdicating my functions as a judge if I were not to interfere to quash the prosecution. To use the language of Wazir Hasan, C. J. , (A. I. R. 1933 0udh 387) to allow the case to proceed would be to allow a face to be enacted before the lower court to the great harassment of the petitioner or as Mukerji, J. put it in A. I. R. 1925 Allahabad 311 to allow a mock trial to proceed, with no purpose.
(3.) I, therefore, quash the proceeding in C. C. No. 473 of 1955 before the First Class Magistrate of Nedumangad and direct that the petitioner - the accused therein - be discharged. Order accordingly.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.