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Madras High Court · body

1988 DIGILAW 268 (MAD)

V. M. Ramaswami v. S. Balakrishnan

1988-07-15

K.NATARAJAN

body1988
Judgment This revision is directed against the order passed by the learned Second Additional Sessions Judge, Salem, setting aside the order of dismissal passed by the Chief Judicial Magistrate, Salem, in P.R.C. No.4 of 1984 and directing further enquiry into the Complaint of the respondent herein. 2. The facts which are necessary for the disposal of this revision are briefly as follows: The respondent herein (hereinafter referred to as the Complainant) filed a Complaint under S.200, Cr.P.C., against the revision petitioners (hereinafter referred to as the accused) on the following allegations. The Complainant purchased a vacant land from one Lakshmi Animal in 1964 and put up a construction therein, bearing Door No.7 while so, the second accused purchased the said land along with the building from the land owner on 30-5-1969 and was attempting to evict the Complainant forcibly without resorting to legal process. The first accused is the husband of the second-accused. Accused 3 to 5 are the sons of accused 1 and 2. Accused 7 to 9 are their henchmen. 3. On 29-1-1984 at about 11 a.m. all the nine accused came in a body, formed themselves into an unlawful assembly armed with aruval, stick, koduval and cycle chain trespassed into the house of the Complainant and committed dacoity in respect of iron box, iron rods and some other articles worth Rs. 2,000 when the Complainant condemned the activities of the accused, the first accused by showing koduval threatened to murder him if he comes near. He also caught hold of the tuft of the Complainant’s wife and dragged her and thereby outraged her modesty. The accused damaged the western portion of the house. In respect of the same, the Complainant gave a written Complaint at the Pallapatti Police Station. But, they refused to entertain the same. Hence he reported the matter to the higher authorities by sending telegrams. Thereafter, on the evening the Pallapatti Police received the Complaint and gave a receipt. However, they did not take any action. The acts committed by the accused amount to offences under Ss.147. 148, 354, 392, 427, 448 read with S.506-II, I.P.C. Hence, the Complainant has filed the Complaint. The said Complaint was referred to Pallapatti Police under S.156, Crl. P.C., with a direction to register the case and investigate the same. After investigation, it was referred as ‘mistake of fact’. The acts committed by the accused amount to offences under Ss.147. 148, 354, 392, 427, 448 read with S.506-II, I.P.C. Hence, the Complainant has filed the Complaint. The said Complaint was referred to Pallapatti Police under S.156, Crl. P.C., with a direction to register the case and investigate the same. After investigation, it was referred as ‘mistake of fact’. On the memo filed by the Complainant, requesting the court to enquire into the same, he was examined on oath and the case was taken on file as RR.C.No.4 of 1984. The court directed the Complainant to produce witnesses. Accordingly, the Complainant as well as three witnesses were examined as P.Ws.1 to 4 and Exs. P1 to P5 were marked. The learned Chief Judicial Magistrate for the reasons stated in his detailed order came to the conclusion that there is no sufficient ground to proceed with the same and consequently dismissed the Complaint under S.203, Crl.P.C. Aggrieved by the same, the Complainant preferred revision in Crl. R.C. 62 of 1984 before the Sessions Court, Salem. The learned second Additional Sessions Judge, allowed the revision and directed further enquiry. Hence, this revision by the accused. 4. Learned counsel for the revision petitioner (accused), Mr. R. Nadanasabapathi. took this Court through the orders passed by the court below and also other materials and submitted that the order of the Sessions Judge is illegal and violative of S.399(2) read with S.401(2), Crl. P.C, and that the failure to give notices to the accused vitiates the order. It is further submitted by the learned counsel that the entire family of the revision petitioners are falsely implicated and that the constructions put up by the learned Sessions Judge on S.203, Crl.P.C., are unsustainable either in law or on facts. The Sessions Judge exceeded the jurisdiction to allow the revision. When the trial court has given clear and consistent reasons for dismissing the Complaint and found that there is no ground to proceed further in the matter. The trial Court came to the conclusion that it is not only a false case but also a fabricated one. According to the learned counsel, even on facts it cannot be said that a prima facie case has been made out by the Complainant for proceeding further with the Complaint. 5. The trial Court came to the conclusion that it is not only a false case but also a fabricated one. According to the learned counsel, even on facts it cannot be said that a prima facie case has been made out by the Complainant for proceeding further with the Complaint. 5. As regards the first contention that the order passed by the learned Sessions Judge is vitiated on the ground that the accused were not given notice in revision, I had an occasion to consider similar question in Kannan alias Krishnaraj v. R.A.Varadarajan 1987 L.W.(Crl.) 198., and after considering the ratio laid down in the earlier decision of their Lordships of the Supreme Court in Chandra Deo Singh v. Prakash Chandra Bose, 1963 Crl. L.J.297: 1964(1) S.C.R. 639 :A.I.R. 1963 S.C. 1430., and the decision of this Court reported in Somu alias Somasundaram v. State, 1985 L.W.(Crl.) 25., this court held: “The accused cannot be heard to say that in view of the fact that no notice was given in the revision proceeding, the order passed by the Sessions Judge is vitiated.” The above view is supported by the 41st Report of the Law Commission on the subject, wherein it was observed: “32. 10 One suggestion was made to us regarding S.436 was that before an order dismissing a Complaint under S.203 is disturbed, notice should go to the accused person so that he can urge what he likes in support of the dismissal order. This was sought to be supported by the principles of natural justice. We Jo not, however, see how such an accused person can be called ‘a party to the proceeding at that stage, and the Supreme Court has ruled at Chandradeo v. Prakash Chandra, 1963 Crl. L.J.297: 1964(1) S.C.R.639: A.I.R. 1963 S.C. 1430., that it is hardly proper to permit him to intervene in the proceedings. Further, in a number of cases, it will happen that notice to him will seem unnecessary trouble and expense to a person who may be wholly innocent. L.J.297: 1964(1) S.C.R.639: A.I.R. 1963 S.C. 1430., that it is hardly proper to permit him to intervene in the proceedings. Further, in a number of cases, it will happen that notice to him will seem unnecessary trouble and expense to a person who may be wholly innocent. If a Magistrate has, on considering the facts found that there is no ground for proceeding against any person and therefore dismissed the Complaint summarily there is hardly any reason for the revision court to call any one to court as an accused, or as a respondent until, of course, after a further enquiry has been made, and that inquiry justifies the issuing of process.” In view of the above decisions, and the report of the Law Commission, the said contention fails. 6. Next we have to see whether the order passed by the Sessions Judge reversing the order of dismissal is legal and proper in the circumstances of the case. 7. On going through the order passed by the Chief Judicial Magistrate, I find that the learned Magistrate, considering the evidence of P.Ws. 1 to 4, came to the conclusion that the case of the Complainant is not true but concocted one in view of the version of the witnesses and the differences between the Complaint launched by the Complainant and the statement given by him before the court. He had also given cogent reasons for the said finding. According to the learned Magistrate, the allegations given in the Complaint are contradictory to the allegation given in the earliest report. Further the version of the Complainant that he had given the Complaint and it was torn and subsequently to the desire of the Sub Inspector the report was given is found to be false. Even in respect of actual occurrence in view of the contradictory version given in the Complaint, sworn statement and the statement of P.Ws. 1 to 4 before the Court, the learned Magistrate came to the conclusion that no such occurrence could have taken place and that from the circumstance of this case, it is clear that the witnesses were brought up in support of the false allegation. The learned Magistrate further held that the very fact that the place of occurrence is near the police station and that no Complaint was given immediately after the alleged occurrence shows that such occurrence could not have taken place. The learned Magistrate further held that the very fact that the place of occurrence is near the police station and that no Complaint was given immediately after the alleged occurrence shows that such occurrence could not have taken place. He further held that if really the witness No.2, was attacked and sustained injuries, P.W.2 would have received the medical treatment and medical certificates would have been obtained. It is worthy to note the decision in Debendranath Battacharya v. State of West Bengal 1973 L.W.(Crl.) 47=1974 M.L.J. (Crl.) 67 (S.C.), wherein the Lord of Supreme Court observed as follows: “It has to be remembered that an order of dismissal of a Complaint under S.203, Crl. P.C., has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the Complainant. But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceeding further or not. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds may indicate the need for proceeding further in order to discover the truth after a full and proper investigation. If, however, a bare perusal of a Complaint or the evidence led in support of it show that essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, the Complaint could be properly dismissed under S.203, Crl PC.” 8. In Chandra Deo v. Prakash Chandra A.I.R. 1963 S.C. 1430., it is stated as follows: “Since, the object of an enquiry under S.202, is to ascertain whether the allegations made in the Complaint are intrinsically true, the Magistrate acting under S.203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under S.202, Crl. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under S.202, Crl. P.C., or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this.” In the same decision as quoted above, it is further held as follows: “For determining the question whether any process is to be issued or not what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry.” As stated in sub-S.(1) of S.202 itself, the object of the enquiry is to ascertain the truth or falsehood of the Complaint but the Magistrate making the enquiry has to do this only with reference to intrinsic quality of the statements made before him at the enquiry which would naturally mean the Complaint itself, the statement on oath made by the Complainant and the statements made before him by persons examined at the instance of the Complainant in the instant case also, the learned Magisrate, after going through the Complaint, sworn statement and the evidence recorded under S.202 Cr.P.C. came to the conclusion that the allegations stated in the Complaint are not true and that the intrinsic quality of the statement made before him clearly establish that it is only a concocted version, that no occurrence could have taken place and that there is no sufficient grounds for proceeding with the enquiry. It is worthy to note the decision in murugaiyan v. Jayaveerapandia Nadar, 1976 L.W. (Crl.) 199, in which it is held as follows: ‘It is always desirable for the Magistrate taking cognisance of an offence triable exclusively by the Court of Session, in a case instituted on a private Complaint, to resort to an enquiry under S.202(2) of the Code, which serves the purpose of a preliminary enquiry and also safeguards the interest of the accused, so that vindictive and vexatious prosecutions could be avoided even though the Magistrate is not statutorily obliged to do so." In the instant case also, it is seen from the materials that the second accused purchased the disputed item on 30-5-1979 from the owner of the property including the building as if the building belonged to the owner. There is a civil dispute between the parties regarding the building in question over the property. Though the entire family members of the second accused are arrayed as parties in the case, and they were said to have armed with deadly weapons and some of them attacked P.W.2, absolutely there is nothing to show that P.W.2 sustained any injury even though deadly weapons were said to have been used. The alleged subsequent occurrence, wherein some of the rowdies trespassed into the properties and damaged the roof and misbehaved with the womenfolk could have also falsified the Complaint .. in respect of the incident in question as observed by the learned Magistrate. The Police have also investigated the case and referred as a mistake of fact. It is to be noted that the scope of the powers of the revision of the High Court is limited. It is worthy to note the decision in Akalur Ahir and others v. Ramdeoram 1975 L.W.(Crl.) 235: 1974 M.L.J. Crl. 168, wherein it is stated as follows- "The power of revision conferred on a High Court by S.430 read with S.435, Cr.P.C. is an extraordinary discretionary power vested in the superior court to be exercised in aid of justice; in other words, to set right grave injustice. The High Court has been invested with this power to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that the subordinate courts do not exceed their jurisdiction or abuse the power conferred on them by law. The High Court has been invested with this power to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that the subordinate courts do not exceed their jurisdiction or abuse the power conferred on them by law. As a general rule this power in spite of the wide language Of Ss.435 and 430, Cr.P.C. does not contemplate interference with the conclusions of fact in the absence of serious legal infirmity and failure of justice. This power is certainly not intended to be so exercised to make one portion of the Criminal Procedure Code conflict with another, as would seem to be the case when in the garb of exercising revisional power, the High court in effect exercises the power of appeal in face of statutory Prohibition." On going through the order passed by the learned Sessions Judge, I find that the reasons stated in reversing the order of dismissal are untenable. It is to be noted that S.202, Cr.P.C. confers ample jurisdiction on the Magistrate to dismiss the Complaint after it was found that there was not sufficient ground to proceed with the enquiry. The learned Sessions Judge erred in observing that the learned Magistrate has given convincing and acceptable reasons for his opinion that the case put forward is prima facie false and there is absolutely no ground to proceed and he was given reasons for the same. In finding out whether the version of the Complainant is true or not, certainly the learned Magistrate is entitled to consider the various statements made by the Complainant, the document and the evidence of the witnesses examined under S. 202 Cr.P.C, The learned Sessions Judge is also not correct in saying that the learned trial Magistrate ought not to have given any importance to the fact that the police have referred the case as mistake of fact. The learned Judge failed to see that the trial Magistrate came to the conclusion that such an occurrence could not have taken place and the dismissal of the Complaint is not oh the sole ground that there were embellishments as alleged by the learned sessions Judge. The trial Magistrate is, justified in commenting upon the non-production of any records to prove the possession and ownership of the disputed housed which is the main ingredient for establishing the alleged trespass and commission of offence. The trial Magistrate is, justified in commenting upon the non-production of any records to prove the possession and ownership of the disputed housed which is the main ingredient for establishing the alleged trespass and commission of offence. The main purpose of Ss.202 of the Code is to avoid the vexatious and unnecessary prosecution against the accused. The learned Magistrate who had the opportunity to see the demeanour of the witnesses had given his finding on the truth or otherwise of the Complaint and the sufficiency for proceeding with the Complaint. His conclusion certainly deserves due weight. On going through the entire materials, I am of the view, that the learned Sessions Judge exceeded the jurisdiction in setting aside the order of dismissal and directing further enquiry in the said case. There is absolutely nothing to show that the said findings of the learned Magistrate are either perverse or arbitrary and they suffer from any infirmity so as to warrant interference in revision by the learned Sessions Judge. For all these reasons I am of the view that the order passed by the learned Sessions Judge is not sustainable and is liable to be set aside. 9. In the result, the revision is allowed; the order passed by the learned Sessions Judge setting aside the order of dismissal and ordering further enquiry, is hereby set aside and the order of dismissal of the Complaint under S.203, Cr.P.C. passed by the learned Chief Judicial Magistrate is restored.