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1998 DIGILAW 1023 (MAD)

Nambi Thevar v. State

1998-07-31

M.KARPAGAVINAYAGAM

body1998
ORDER Nambi Thevar, the petitioner herein is challenging the order passed in C.C.No.197 of 1997, dismissing his complaint under Sec.203 of the Code of Criminal Procedure. 2. The petitioner in respect of the incident took place on 25.12.1996, in which one Loganathan, Forester, Mundathurai Tigers Sanctuary Committed offences punishable under Secs.447, 341, 352 and 506(II) of the Indian Penal Code, filed a private complaint before the learned Judicial Magistrate, Vallioor. 3. The sworn statement of the complainant and other four witnesses were recorded. 4. On a consideration of the sworn statement and complaint, the learned Judicial Magistrate dismissed the complaint holding that there is a contradiction between the complainant Nambi Thevar and one Perumal Nadar and that this complaint was filed in order to escape from the prosecution, which was lodged by the said Loganathan, Forester against the petitioner/complainant herein in Crime No.354 of 1996 under Secs.147, 148, 332, 342 and 506(II) and Prevention of Public Property and Destructions Act. 5. Mr.V.Gopinath, the learned senior counsel appearing for the petitioner challenged the above impugned order in this revision and contended that the learned Judicial Magistrate has committed a serious illegality by appreciating the evidence under Sec.203 of the Code of Criminal Procedure in dismissing the complaint. 6. In support of his submission, the learned senior counsel for the petitioner would cite the authorities in Mariappan v. Pannerselvam and eight others Mariappan v. Pannerselvam and eight others, 1990 L. W. (Crl.) 141, A. Chellappa and four others and Nirmaljit Singh Hoon v. The State of West Bengal and others Nirmaljit Singh Hoon v. The State of West Bengal and others, 1974 L. W. (Crl.) 31 (J.S.). 7. From the above decisions, it is clear that before issue of process under Sec.204 of the Criminal Procedure Code, there cannot be appreciation of evidence or materials let in by the prosecution in the enquiry conducted under Sec.202 of the Code of Criminal Procedure. 8. There can be no doubt, that the complaint could be dismissed under Sec.203 of the Criminal Procedure Code, if the Magistrate thought that there is no sufficient ground for processing. 9. The word ‘sufficient ground’ contemplated under Sec.204 of the Code of Criminal Procedure, relates to the facts, which the complainant placed before the court of the Magistrate and such facts should show the prima facie case against the accused. 10. 9. The word ‘sufficient ground’ contemplated under Sec.204 of the Code of Criminal Procedure, relates to the facts, which the complainant placed before the court of the Magistrate and such facts should show the prima facie case against the accused. 10. In exercising his discretion, the learned Judicial Magistrate should not allow himself to be influenced by the irrelevant materials, which may not be germane to the issue at that stage, All that he should do is to consider, as to whether there is a prima facie evidence of criminal offence, which in his opinion, would be sufficient to call upon the accused and record his plea, 11. The approach of the learned Judicial Magistrate in considering the extraneous materials namely, the pendency of the counter case against the petitioner filed by the Forester, who is the accused in the private complaint, may not be relevant for consideration at that stage. 12. Admittedly, a perusal of the impugned order would go to show that the learned Judicial Magistrate has considered the pendency of the counter case and observed that this complaint had been filed in order to escape from the said prosecution. 13. This, in my view, is quite unwarranted, yet another ground on which the complaint was dismissed is that there is a contradiction between the complainant and one Perumal Nadar with reference to beating. 14. The appreciation of these materials as indicated earlier, at the stage of enquiry under Sec.202 of the Code of Criminal Procedure is not permissible. 15. The learned Judicial Magistrate should find out only whether there are allegations in the complaint and the sworn statement recorded constituting the offences alleged. 16. Thus, I find that the order suffers from illegality and as such I deem it fit to set aside the impugned order and remand the matter back for taking the complaint on file. 17. With reference to this question of law, for getting assistance, I heard the learned Government Advocate, who is also not able to support the impugned order. Though, in the complaint, the offence punishable under Sec.506(II) is also alleged, I do not find any materials for the said offence and as such, the complaint should be taken on file by the learned Judicial Magistrate in respect of other offences namely, Secs.447, 341, 342 and 352 of the Indian Penal Code. 18. Though, in the complaint, the offence punishable under Sec.506(II) is also alleged, I do not find any materials for the said offence and as such, the complaint should be taken on file by the learned Judicial Magistrate in respect of other offences namely, Secs.447, 341, 342 and 352 of the Indian Penal Code. 18. It is also brought to my notice that in respect of the incident that took place in the same transaction, as stated earlier, the case initiated by the said Loganathan, Forester is also pending. 19. So, it is found that this is a case in counter, the learned Judicial Magistrate should try both the cases, as a case in counter and dispose of the same in accordance with law. 20. With the above observation, the revision petition is allowed. Petition allowed.