A. Chellappa v. Kulasekaran — 1990 DIGILAW 74 (MAD)

Judgment : The petitioner are the accused in P.R.C. No.29 of 1983 on the file Judicial Second Class Magistrate, Uthamapalayam, which was initiated on the private complaint Preferred by the first respondent for alleged offences under Secs.424, 447, 506, Part (II) and 397, Indian Indian Indian Penal Code. The committal Magistrate who took the case on file chose to examine the witnesses produced by the first respondent as C.Ws.1 to 6. After holding that there was no sufficient ground to proceed further, against the petitioners, the committal Magistrate dismissed the complaint, under Sec.203, Cr.P.C. The aggrieved first respondent filed Crl.R.P.No.20 of 1984, on the file of the Principal Sessions Judge, Madurai North at Dindigul. The first revisional Court held that the committal Magistrate had exceeded the limited scope contemplated in a committal enquiry and hence set aside the order dismissing the complaint and remitted the matter back to the Judicial Second Class Magistrate, Periyakulam, for disposal of the complaint in accordance with law keeping in view the limited scope of the enquiry. It was the view of the learned Sessions Judge that the matter may have to be disposed of by the Judicial Second Class Magistrate, Periyakulam since the Judicial Second Class Magistrate, Uthamapalayam, had already given a finding on the merits of the prosecution case. The petitioners, who are aggrieved in the matter having thus been remanded for fresh disposal, challenging the finding of the Court of Session, have preferred this revision. 2. Before entering into a discussion on the rival contentions made by either counsel it is better to have the brief facts of the prosecution case, necessary for the disposal of this revision, set out. The first respondent is a registered contractor having coffee estates in S.No.1303 of Kothapatti village, as well as other estates in different survey numbers. The first petitioner appears to be a timber merchant; the second petitioner is the brother of the first petitioner and petitioners Nos.3 to 5 are the servants of the first petitioner. The sixth petitioner is a mahout. The neighbouring coffee estate is owned by one Suruli Nadar, who appears to have sold to petitioners 1 and 2. Certain silver oak trees grown in his estate. The sixth petitioner is a mahout. The neighbouring coffee estate is owned by one Suruli Nadar, who appears to have sold to petitioners 1 and 2. Certain silver oak trees grown in his estate. It is the allegation in the complaint, that taking advantage of the fact that the first respondent is living far away from his estate, the petitioners began to cut the trees from the complainants (first respondents) estate as well, since it was adjoining the estate of Suruli Nadar. Initially at the intervention of elders in Bodi town the matter was compromised between the parties. Even after compromise was effected, the case of the first respondent is that, the petitioners have indulged in a similar mischief subsequently as well and they had stealthily cut three silver oak trees in his land situate in S.No.1303. The case of the first respondent was sought to be supported by witnesses 1 to 4 cited by him in the complaint, who knew the incidents. 3. It appears from the allegations made in the complaint, that all the petitioners were involved in one part or the other of the offending transaction. When the first respondent protested the first petitioner is alleged to have instigated the other petitioners to take care of him. On such instigation, the other petitioners are alleged to have surrounded the first respondent with deadly weapons and wrongfully placed him and his witnesses under restraint and threatened them with instant death or hurt. On the orders of the first petitioner the sixth petitioner, a mahout, removed the cut trees with the help of his elephant. The first respondent reported the matter to the Bodinayakanur Police Station and his complaint was registered as Crime No.182 of 1982. No action was taken on the complaint of the first respondent, but on a complaint given by the petitioners the police are stated to have arrested the first respondent, his son and his accountant and prosecuted them. It is now brought to my notice by the learned counsel for the petitioners, that the accused in the other case were convicted and sentenced to pay a fine. The first respondent was the fourth accused in the said prosecution. 4. In the committal Court the first respondent was examined and his sworn statement was recorded. His witnesses were examined as C.Ws.1 to 6 under Sec.202, Cr.P.C., and Exs.A1 to A8 were marked. The first respondent was the fourth accused in the said prosecution. 4. In the committal Court the first respondent was examined and his sworn statement was recorded. His witnesses were examined as C.Ws.1 to 6 under Sec.202, Cr.P.C., and Exs.A1 to A8 were marked. The material objects produced by the first respondent were marked as M.Os.1 and 2. It is only thereafter that the learned Magistrate dismissed the complaint under Sec.203, Cr.P.C., on the ground that there is no sufficient ground for proceeding further with the complaint. 5. In revision, the learned Sessions Judge after careful consideration of the case law placed before him, held that the scope of an enquiry, in a case exclusively, triable by a Court of Session, by a committal Magistrate was very narrow. He has pointed out that the committal Magistrate had discussed a length the evidence tendered by C.Ws.1 to 6, taking notice of very minute differences in the sworn statement of the complainant and the evidence tendered by C.Ws.2, 3 and 4. It may be worthwhile to note that the committal Court had observed in the process of its reasoning that C.Ws.2, 3 and 4 had not spoken in unison about the exact nature of words spoken to by the first petitioner. Certain portions of the prosecution case alleged in the present private complaint, had been omitted in the first information report, lodged at the police station. It was only on the basis of this reasoning that the committal Magistrate had come to the conclusion, that the versions of P.Ws.2, 3 and 4 taken in conjunction with the sworn statement of the first respondent was not acceptable and true. The committal Magistrate had also observed that though a surveyor was examined as P.Ws.6 he had not produced relevant documentary evidence. It was the view of the Magistrate, that the evidence of C.W.6 could be accepted even at this stage, only in the event of production of the relevant documents. C.W.6 was at that point of time, the Inspector of Survey at Uthamapalayam taluk and was a public servant, not interested in either of the parties. The Magistrate had also committed about the non-examination of one Chokkar, who had been cited as witness No.4 in the complaint. C.W.6 was at that point of time, the Inspector of Survey at Uthamapalayam taluk and was a public servant, not interested in either of the parties. The Magistrate had also committed about the non-examination of one Chokkar, who had been cited as witness No.4 in the complaint. This may not loom large, since it is admitted by both sides that the first respondent had conceded that he will not examining Chokkar in the Court of Session, on the ground that he had been gained over by the petitioners. This ground, as rightly pointed out by the learned Sessions Judge, cannot form the basis, for the dismissal of the complaint. 6. Mr.K.Ashokan, learned counsel appearing for the petitioners, contended that it may be true that the committing Magistrate had overstepped his limits, but in view of there being no prejudice to the case of the first respondent the first revisional Court should not have interfered with the judicial discretion exercised by the learned committal Magistrate. According to the learned counsel on a comparison of Sec.202, Cr.P.C., as it existed in the prior Code and in the new Code, the discretion vested in the committing Magistrate, was greater in the present Code and therefore, it was possible for the said Magistrate to consider the evidence placed before him, as had been done by him, and the said procedure cannot be commented upon as though the said Court had exceeded its limits in dismissing the complaint. 7. There can be no doubt, that the complaint could be dismissed, if the Magistrate thought that there was no sufficient ground for proceeding. This sufficient ground contemplated in the section, relates to the facts which the complainant placed before the Court of the committing Magistrate and such facts showing prima facie case against the accused. In exercising his discretionary power of summary dismissal of the complaint, the Magistrate should not allow himself to be swayed away by considerations which may not be germane at that stage and all that he could do would be to consider as to whether there was prima facie evidence of a criminal offence which, in his judgment would be sufficient to call upon the alleged offender to answer. The approach of the Magistrate in considering the probable result of the proceedings or the undesirable motive or conduct of the complainant, may not be relevant considerations at that stage. The approach of the Magistrate in considering the probable result of the proceedings or the undesirable motive or conduct of the complainant, may not be relevant considerations at that stage. It cannot be disputed, that the reasons for dismissing a complaint could take in its fold, the fact of the allegations made in the complaint being patently absurd or inherently improbable in that no prudent person can ever reach a conclusion that there was sufficient ground for proceeding against the accused. It is also true that in coming to a decision as to whether a process should be issued, the Magistrate can take into consideration, inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations, but the line of demarcation is thin between the probability of a conviction of the accused and the establishment of a prima facie case against him. The thinner the demarcation the greater is the responsibility of the Magistrate in exercising his judicial discretion. This position has been made clear by the apex Court in Nagawwa v. Veerana Nagawwa v. Veerana 1976 Crl.L.J. 1533 8. In Kewal Krishnan v. Suraj Bhan Kewal Krishnan v. Suraj Bhan A.I.R. 1980 S.C. 1780the Supreme Court held that at the stage of Secs.203 and 204, Cr.P.C., in a case exclusively triable by the Court of Session, all that the Magistrate had to do was to see, whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Secs.200 and 202, there was prima facie evidence in support of the charge levelled against the accused. All that he had to see was whether or not there was “sufficient ground for proceeding” against the accused. At this stage, the Magistrate was not to weigh the evidence meticulously as if he were the trial Court. The standard to be adopted by the Magistrate, in scrutinising the evidence, is not the same as the one, which is to be kept in view at the stage of framing charges. Even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, were not to be meticulously judged. Even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, were not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiorari, at the stage of Secs.202/204, Cr.P.C. if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that would be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session. 9. Considering the manner in which the committal Magistrate has dealt with this case at the preliminary stage, in the light of the law laid down by the Supreme Court referred to above, the inescapable conclusion is that the Sessions Judge was right in setting aside the order of dismissal of the complaint and remitting the matter back to some other Magistrate, for disposal of the complaint in accordance with law. It does not appear to my mind to be a case where the Magistrate has just overstepped his limits. The judgment itself apparently shows that he had meticulously gone into minute details of the evidence placed before him and had come to the conclusion that there was no sufficient ground for proceeding, though the reasoning undoubtedly indicates that the Magistrate was proceeding as though charges had been framed and he was considering the evidence on the basis of feasibility of a conviction. 10. When a prima facie case is made out, a complaint cannot be dismissed on the ground that apart from the complainant other persons like the Forest Officials had not complained against the accused. A complaint should also not to be dismissed on the result of a previously made police enquiry, since that very enquiry is challenged in the private complaint. The complaint should be given an opportunity of arguing his case on the said police complaint as well to facilitate the Magistrate to examine the evidence placed before him by the prosecution witnesses for the limited purpose of finding out if sufficient grounds existed for proceeding further in the matter. The complaint should be given an opportunity of arguing his case on the said police complaint as well to facilitate the Magistrate to examine the evidence placed before him by the prosecution witnesses for the limited purpose of finding out if sufficient grounds existed for proceeding further in the matter. It is seen from the order of the committing Magistrate, that he had taken into consideration, the non-filing of prosecutors either by the forest officers or the police, on complaints alleged to have been made taken by the first respondent. The very approach of the committing Magistrate, is certainly not in consonance with law, while the well considered of the learned Sessions Judge, appears to my mind to be correct and sustainable. 11. In view of the reasoning aforementioned I do not find any merit in this revision, which is hereby dismissed. 12. After the order was dictated by main open Court Mr.K.Ashokan, learned counsel for the petitioners prayed for leave to appeal to the Supreme Court. The decision of mind is based on the law laid down by the Supreme Court and I do not find any ground to grant leave as prayed for. The oral request for leave is refused.