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1996 DIGILAW 133 (MAD)

Nachimuthu v. Palanichamy

1996-02-02

M.KARPAGAVINAYAGAM

body1996
Judgment :- The petitioner being the complainant filed a complaint against the respondent Palanichamy for the offences under Sections 341, 324 and 307 IPC, before the learned Judicial Magistrate No. 2, Dindigul on 7-10-1992. 2. The allegation in the complaint is that on 7-5-1991 at about 9-30 p.m. the respondent/accused way laid the complainant, who was on the way to his garden and attacked him with Aruval by exclaiming (Vernacular matter is omitted. - Ed.) and inflicted injury on his head and then the accused/respondent took to his heels. The above private complaint has been preferred by the petitioner, since police did not take proper action on his complaint for the abovesaid offences. 3. On entertaining this complaint, the learned Judicial Magistrate conducted the enquiry under Section 202 Cr.P.C. by recording sworn statements of PWs-1 to 4. Ultimately the learned Magistrate passed an order in C.C. No. 639 of 1992 on 19-3-1993, dismissing the complaint under Section 203 Cr.P.C. on the sole ground that the offence under Section 307 IPC was not made out. The said order in single para, giving the reasons for dismissing the impugned complaint, read thus :- Aggrieved over this the petitioner has preferred this revision. 4. The grievance of the revision petitioner is that in spite of the materials produced before the Court below through witnesses to make out the offence under Sections 341, 324 and 307 IPC the learned Magistrate dismissed the complaint, mainly on the reason that the respondent/accused could not have the intention to cause the death of the petitioner, since there is only one injury found on the petitioner by PW-4. Doctor Krishnakumar, who gave opinion that the said injury was simple in nature. 5. Ms. Mathumathi, representing Dr. A. Natarajan, learned counsel for the revision petitioner, strenuously contended that the order of the learned Magistrate is not in accordance with law and the same is illegal and liable to be set aside, on the ground that under Section 202, Cr.P.C., the duty cast upon the Magistrate is only to record the evidence, to find out a prima facie case, whether the materials would constitute the offence triable by the Court of session or not and the Magistrate cannot delve into the factual aspects and appreciate on the question of reliability of the witnesses. 6. Learned counsel for the respondent is absent. 7. I have perused the materials available on record. 6. Learned counsel for the respondent is absent. 7. I have perused the materials available on record. I find some force in the contentions raised by learned counsel for the revision petitioner. After the introduction of the new Code, Court of Magistrate is a mere Post Office in so far as the cases triable by the Court of Session are concerned. The Magistrate has to record the statement in the enquiry under Section 202 Cr.P.C., and then commit the case to Court or Session to enable the Sessions Court to appreciate the evidence if the Magistrate finds any prima facie case. If the Magistrate comes to the conclusion that only an offence triable by Judicial Magistrate is made out, then instead of committing the case to the Court of Session, the Magistrate himself can take the case on file by taking cognizance for the said offence triable by the Magistrate and go on with the case. 8. In the instant case, on the appreciation of the evidence, the learned Judicial Magistrate unfortunately, while observing that the respondent/accused could not have the intention to commit the murder of the petitioner, failed to give finding with reference to the question as to what was the exact offence made out from the materials available in the enquiry under Section 202 Cr.P.C. It is very unfortunate for the learned Judicial Magistrate to simply dismiss the case, without understanding the basic concept as provided in the Code of Criminal Procedure. I also carefully went through the evidence of PWs-1 to 4. There is some substance in the argument placed by learned counsel for the petitioner that the learned Judicial Magistrate ought to have committed the case to the Sessions, since there are materials to make out a case for an offence under Section 307 IPC. In any event, the learned Magistrate, at least ought to have taken the case on file for the offences under Sections 341 and 324 IPC. I am at loss to understand, how this basic thing has been overlooked by the learned Magistrate, without applying his mind as to the relevant provisions of the Code. As such, the order passed by the learned Judicial Magistrate No. 2 Dindigul, on 7-10-1992 in C.C. No. 638 of 1992 is clearly illegal, perverse and the same is liable to be set aside and the matter to be remanded for fresh consideration. 9. As such, the order passed by the learned Judicial Magistrate No. 2 Dindigul, on 7-10-1992 in C.C. No. 638 of 1992 is clearly illegal, perverse and the same is liable to be set aside and the matter to be remanded for fresh consideration. 9. In view of what I stated above, the order of the learned Judicial Magistrate referred above is set aside and the revision is allowed. The matter is remanded back and the learned Magistrate is directed to consider the materials available in the enquiry under Section 202 Cr.P.C. afresh and pass appropriate order in accordance with law expeditiously. Registry is directed to send back the records of the trial Court, immediately. Revision allowed.