(Prayer: Criminal Original Petition filed under Section 528 of Bharathiya Nagarik Suraksha Sanhita, 2023 to call for the records in C.C.No.33 of 2022 on the file of the learned Judicial Magistrate, Thirvaiyaru, Thanjavur District and quash the same insofar as the petitioners are concerned.)

1. This Criminal Original Petition has been filed seeking to quash the impugned final report in C.C.No.33 of 2022 on the file of the learned Judicial Magistrate, Thirvaiyaru, Thanjavur District, filed against the petitioners/A4 to A7 for the offences punishable under Sections 408, 468, 420 and 109 of the Indian Penal Code, 1860.

2. The gist of the allegations is that the petitioners, who are arrayed as A4 to A7, are Trustees of the Oppiliappan Temple, Thirunageshwaram, appointed by the Government of Tamil Nadu; that the temple possessed certain jewels; that on 21.10.2008, the trustees passed a resolution to convert the old jewels weighing 7,222.200 grams into new jewels after obtaining orders from the Commissioner, Hindu Religious and Charitable Endowments Department; that the first accused, who was the Assistant Commissioner, and the third accused, who is no more, were in possession of the locker keys; that on 17.12.2008, the first and second accused, in the presence of certain witnesses, took 7,295 grams of jewels to a gold refinery at Mumbai, but in the inventory, they showed only 7,251 grams, i.e., 44 grams less, thereby causing a loss of Rs.38,280/- to the temple; that they also misappropriated valuable gemstones worth about Rs. 7,77,110/-; that, without obtaining the sanction of the Commissioner, Hindu Religious and Charitable Endowments Department, the first and second accused misappropriated 23.13 grams of gold jewels containing diamond stones, causing a further loss of Rs.75,744/-; and that the petitioners abetted the aforesaid acts and thereby committed offences punishable under Sections 408, 468, 420 and 109 of the Indian Penal Code, 1860.

3. The learned counsel for the petitioners submitted that the petitioners are honorary Trustees appointed by the Commissioner; that there is no material filed with the impugned final report to infer that the petitioners had abetted the commission of the offence; that they are prosecuted only on the ground that they were Trustees and had passed a resolution permitting the conversion of the old jewels into new jewels, and that such a resolution would not make them liable for the offence of abetment; that they had filed a discharge petition, which was dismissed, and the revision petition before the District Court was also dismissed; and that as there is no evidence, the impugned prosecution as against the petitioners may be quashed.

4. The learned counsel for the second respondent/defacto complainant submitted that, as per Rule 21 of the Religious Institutions Custody of Jewels, Valuables and Documents and Disposal Rules (hereinafter referred to as “the Rules”), the Trustees are the custodians of the property of the temple; that the petitioners, as Trustees, had not taken proper care and caution to ensure that the property of the temple was not misappropriated; that the petitioners, as Trustees, had permitted the conversion of the jewels contrary to the aforesaid Rules without verifying the discrepancy in the weight of the jewels in Resolution No.95 of 2008, inasmuch as the resolution reflected a shortage of 39 grams of gold; and that, therefore, the question as to whether the petitioners had abetted the commission of the offences by A1 and A2 cannot be adjudicated in this quash petition, and accordingly, the petition may be dismissed.

5. The learned Additional Public Prosecutor for the first respondent police reiterated the allegations in the final report and has also filed a counter stating that the prosecution has examined several witnesses and collected documents, and that the question as to whether the petitioners had abetted the first and second accused in the commission of the offence cannot be determined in a quash petition, especially when the discharge petition and the revision petition filed before the District Court have already been dismissed, and sought dismissal of the quash petition.

6. The impugned final report has been filed pursuant to the investigation in Crime No.2 of 2014 on the file of the first respondent. In the FIR, twelve persons were shown as accused. It appears from the counter-affidavit filed by the first respondent that a final report was initially filed as against four accused, which was taken on file in C.C.No. 10 of 2022. The respondents claim that the impugned final report filed against the petitioners and others is a supplementary final report. However, the said final report has been assigned a separate number, namely C.C.No.33 of 2022. It is not clear what the first respondent means by “supplementary final report,” as the learned Magistrate has taken cognizance of the offences in the second final report independently and has numbered it as C.C.No.33 of 2022. It is also seen that, in the second final report, independent witnesses have been examined and the petitioners, along with A1 to A3, have been charged for the aforesaid offences.

7. The first respondent police have cited about 39 witnesses in the impugned final report. The petitioners are not shown as accused in the first final report, which was taken on file as C.C.No.10 of 2022, as seen from the counter-affidavit. Therefore, it appears that the final report filed subsequently against the petitioners has been treated as an independent final report.

8. As stated earlier, the petitioners were working as Trustees of the temple, having been appointed by the Hindu Religious and Charitable Endowments Department. Since two final reports have been filed by the respondents, the first respondent police appear to have confused themselves and have stated facts relating to the first final report. In fact, in Paragraph No.13, they have stated that A7 to A11 had signed the resolution knowingly and were therefore guilty of the offence. However, in the present case, there are only eight accused. The allegation against the petitioners is that they had abetted A1 and A2 in the commission of the offence. Accordingly, the charge against them is under Section 109 of the Indian Penal Code, 1860 read with Sections 408, 468 and 420 of the Indian Penal Code, 1860. In Paragraph Nos.24 and 26, the respondents have stated that they have concluded that the petitioners were guilty of abetment on the basis of the statements of the following witnesses:

                  (1)Mr.Batrinarayanan, presently Temple Writer

                  (2)Mr.Dinesh, presently Security in the Temple

                  (3)Mr.Maheswaran, presently Office Assistant in the Temple

                  (4)Mr.Sattanathan Pattachariyar

                  (5)Mr.Srikanth Pattachariyar

                  (6)Mr.Duwaraganathar Pattachariyar

                  (7)Mr.Kannan Pattachariyar

                  (8)Mr.Sridharan Pattachariyar

9. In the list of witnesses appended to the final report, Batrinarayanan and Dinesh have not been cited as witnesses. As stated earlier, the Inspector of Police appears to have confused herself and has referred to the facts relating to the first final report in the counter affidavit.

10. The statements of Maheswaran, Sattanathan Pattachariyar, Srikanth Pattachariyar, Kannan Pattachariyar, Duwaraganathar Pattachariyar, and Sridharan Pattachariyar are parrot-like in nature. Sattanathan Pattachariyar, Srikanth Pattachariyar, Kannan Pattachariyar, Duwaraganathar Pattachariyar, and Sridharan Pattachariyar are working as priests in the temple. They have signed the consent letter given by the first accused stating that the jewels had to be melted. Their statements are of no avail to the prosecution, as they do not implicate the petitioners in any manner.

11. Maheswaran was working as an employee in the temple. He had written the letter said to have been issued by the priests of the temple stating that they had no objection for melting the jewels. It is not known as to how his statement implicates the petitioners in any manner. His statement only implicates the first accused. All of them have stated that the consent letter was obtained from the priests for melting the jewels.

12. That apart, in the final report, the prosecution has relied upon the resolutions said to have been passed by the Trustees along with the first accused for converting the jewels and for seeking permission from the Commissioner of the Hindu Religious and Charitable Endowments Department. Apart from the decision taken by the Trustees permitting the melting/conversion of the jewels, there is no allegation or any material to establish that they had handled the jewels or that they were aware of the alleged misappropriation committed by the first and second accused.

13. Admittedly, it is only the first accused who had handled the jewels, and he was responsible for melting the jewels and recording the details in the inventory register. It is also not the case of the prosecution that the petitioners had gained anything illegally from the alleged misappropriation said to have been committed by the first accused. It is the consistent case of both the learned counsel for the respondents and the prosecution that, as Trustees, the petitioners are the custodians of the property of the temple and ought to have exercised extra care and caution while approving the actions of the first accused. The allegations and submissions would only suggest that, at best, the prosecution can accuse the petitioners of not discharging their duties diligently. However, to prosecute a person for abetment, something more is required. The prosecution has to establish that the petitioners had instigated or intentionally aided or conspired with the first accused for the commission of the offence by the first accused. There is no such material in the impugned final report.

14. It is seen that a discharge petition was filed and dismissed, and the revision challenging the dismissal of the discharge petition was also dismissed by the learned Sessions Judge. On perusal of the order dismissing the discharge petition, it is seen that the learned Magistrate, after referring to the case of the prosecution, has simply stated that 48 witnesses have been examined and, therefore, the petitioners cannot claim discharge at this stage. The learned Sessions Judge has also simply confirmed the said order. 15. The Hon'ble Supreme Court and this Court have time and again held that the Court, at the stage of framing of charge, cannot act as a mere post office. Though the evidence cannot be sifted at that stage, there must nevertheless be prima facie material to proceed against the accused. In the present case, as stated earlier, except for the fact that the petitioners had signed a resolution permitting the melting of the jewels, there is no material to suggest that they had abetted the first accused in the commission of the offence of misappropriation or falsification of records.

16. It is well settled that this Court can exercise its power under Section 482 of the Code of Criminal Procedure, 1973, notwithstanding the fact that the discharge petition has been dismissed. Therefore, this Court is of the view that the impugned prosecution as against the petitioners would amount to an abuse of process of law. Accordingly, this Court is inclined to quash the proceedings insofar as the petitioners alone are concerned.

17. This Criminal Original Petition is allowed. Consequently, the connected Miscellaneous Petitions are closed.