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SELVARAJ versus THE STATE, REPRESENTED BY

High Court of Madras

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Selvaraj v. The State, represented by - CRL.O.P.No.1680 of 2005 [2005] RD-TN 119 (11 February 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 11/02/2005

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM CRL.O.P.No.1680 of 2005

and

CRL.M.P.Nos.759 and 760 of 2005

1. Selvaraj

2. Kandammal .. Petitioners -Vs-

The State, represented by

The Sub Inspector of Police

Palladam Police Station

Palladam

Coimbatore District .. Respondent This criminal original petition is filed under Sec.482 of the Code of Criminal Procedure praying to call for the records in S.T.C.No.168 of 2002 pending on the file of the Judicial Magistrate, Palladam and quash the same. For Petitioners : Mr.P.Suresh

For Respondent : Mr.A.N.Thambidurai

Government Advocate(Crl. Side)

:ORDER



The petitioners have brought forth this criminal original petition seeking to quash the proceedings in S.T.C.No.168 of 2002 pending on the file of the learned Judicial Magistrate, Palladam.

2. Admittedly, the respondent police filed a charge sheet under Sec.160 of the Indian Penal Code before that Court stating that on 8.6.20 01 at about 10.00 A.M. on Palladam to Mangalore Road at R.V.Nagar in a public place within the Palladam Police Station limits, the accused 1 to 4 noted in the charge sheet, formed into A and B Party respectively, fought with each other and committed an affray. The same was originally taken by the lower Court as S.T.C.No.1032 of 2001. As per the charge sheet, the petitioners herein are shown as A Party, and one Jothimani and Samboornam were shown as B Party. After the lower Court took cognizance of the matter, the said Jothimani and Samboornam admitted the offence and paid the fine. Thereafter, insofar as the petitioners, who, according to the charge sheet, constituted the A Party, the case was renumbered as S.T.C.No.168 of 2002, which the petitioners seek to quash in this O.P.

3. The learned Counsel for the petitioners would submit that in order to attract affray under Sec.160 of the Indian Penal Code, three ingredients are necessary; that firstly, there should be two or more persons who indulge in a fight, and secondly, such a fight must be in a public place, and thirdly, the said fight must disturb the public peace; and that in the instant case, no one of the said three ingredients was attracted. Added further, the learned Counsel that the Investigating Officer, who enquired both the Parties, should have either filed the charge sheet only against the aggressors or referred the case itself; but, in the instant case, even after finding the opposite party as aggressors, they have shown the petitioners as A Party and the opposite party as B Party, and on that ground, it has got to be quashed.

4. This Court heard the learned Government Advocate for the respondent on the above contentions.

5. It would be more appropriate and advantageous to reproduce Sec.15 9 of I.P.C., which defines "affray".

"Section 150: When two or more persons, by fighting in a public place, disturb the public peace, they are said to "commit an affray"." A reading of the said provision would clearly indicate that in order to bring home the guilt of the accused for an offence of affray, the prosecution should satisfy the three essentials. Firstly, fighting must be between two or more persons. Secondly, fighting must take place in a public place, and thirdly, such fighting must also result in disturbance of public peace. In the absence of even one of these ingredients, it cannot be stated that there was either an affray or the accused facing the trial, should be held responsible.

6. In the instant case, the petitioners are shown as A Party and the opposite party namely one Jothimani and Samboornam were shown as B Party. It is pertinent to point out that the occurrence has taken place in the house of the petitioners, and thus, it was not in a public place. The members, who constituted the B Party, have gone to the house of the petitioners and have attacked them, and they were found to be the aggressors. If to be so, there was no fighting between the parties, since the fighting would mean and connote a contester's struggle between two or more persons against one another. Thirdly, there was nothing available to indicate that there was disturbance of public peace, and thus, in the instant case, all the three ingredients which were necessary to constitute affray, were absent. In view of the same, it cannot be stated that the charge sheet filed under Sec.160 of I.P.C. alleging that there was a fight between A and B Party was correct.

7. Yet another illegality and infirmity is also noticed. A mandatory duty is cast on the Investigating Officer to enquire into both the parties and find out who were the aggressors, and file a charge sheet against them. In the instant case, the police agency finding it difficult, has adopted a short-cut method by charging both the petitioners as A Party and the other accused as B Party for an offence of affray under Sec.160 of I.P.C. No doubt, a prejudice was caused to the parties by the said short-circuit procedure. By that, the petitioners who were not the aggressors and not liable to be charged at all, were placed in such a position to face the trial before the lower Court.

8. The crowning circumstance in the instant case was that the accused shown as B party, admitted the offence and paid the fine also, and the lower Court has renumbered the case as S.T.C.No.168 of 2002, so far as the petitioners were concerned, who were originally shown as A Party. This Court is of the considered opinion that all the reasons recorded above, would be suffice to quash the proceedings pending on the file of the lower Court against the petiti oners.

9. Hence, this criminal original petition is allowed, quashing the proceedings in S.T.C.No.168 of 2002 on the file of the Judicial Magistrate, Palladam, against the petitioners. Consequently, connected Crl.M.Ps. are closed.

Index: yes

Internet: yes

To

1. The Judicial Magistrate

Palladam

2. The Sub Inspector of Police

Palladam Police Station

Palladam

Coimbatore District

3. The Public Prosecutor

High Court, Madras.

nsv/




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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