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1998 DIGILAW 980 (MAD)

Gandhimathi v. Arumuga Thevar and Others

1998-07-27

M.KARPAGAVINAYAGAM

body1998
Judgment :- The order of discharge is being challenged in this revision. 2. The petitioner and others were attacked by the respondents. Therefore, the petitioner filed a complaint to the police. On behalf of the respondents, a counter complaint was also given. The police instead of filing charge sheet in respect of one case, filed a charge sheet under section 160, I.P.C. against both parties. It is stated that this case ended in acquittal. 3. In the mean time, the petitioner on receipt of a referred notice sent by the police, filed a private complaint against the respondents in respect of the said incident for the offences under sections 147, 341, 323, 326 and 506(ii), I.P.C. This was taken on file by the learned Judicial Magistrate and summons were served on the respondents. The witnesses on behalf of the petitioner/complainant were produced and examined. On behalf of the respondents, they were cross-examined. Before framing charges against the respondents, the respondents filed an application for discharge. 4. The learned Judicial Magistrate after hearing both the parties allowed the application discharging the respondents on three grounds. (1) In respect of the same transaction, the case was already filed by the police under section 160 I.P.C. and the same ended in acquittal. Therefore, under section 300, Cr.P.C. the present second complaint is not maintainable. (2) The F.I.R. alleged to have been filed by the complainant before the police before filing of this private complainant, has not been produced before the Court. (3) The comparison of the sworn statement with the deposition of P.W. 1, would go to show the contradictions. 5. While challenging this order containing the aforesaid reasons, Mr. (2) The F.I.R. alleged to have been filed by the complainant before the police before filing of this private complainant, has not been produced before the Court. (3) The comparison of the sworn statement with the deposition of P.W. 1, would go to show the contradictions. 5. While challenging this order containing the aforesaid reasons, Mr. Srinivasan, learned counsel appearing for the petitioner would contend on the basis of the several judgments reported in 1961 Mad WN 162 (Anantharaman v. Ramaswamy), 1969 Mad LW (Cri) 255 (Prabakaran, In re, (K. N. Mudaliar, J.), 1976 CrLJ 868 (All) (Maidhan Gupta v. State of U.P.), 1978 CrLJ 1018 (Cal) (Hari Nath v. State) and 1995-2 Mad LW (Cri) 597 : 1995 CrLJ 3437 ) (Xavier v. Vincent Raj) and 1955 AIR(Mysore) 138 : 1955 CrLJ 1611 ) (Kariyappa v. Somanna) that Section 300, Cr.P.C. would not apply to this case, because the ingredients of the offence under section 160, I.P.C. are entirely and fundamentally different from the ingredients of the sections of offences for which the present private complaint was filed and that therefore, this reason is wrong. 6. Further more, it is pointed out by the learned Counsel for the petitioner that though the FIR was not produced, it is clearly mentioned in the complaint as well as in the deposition about the filing of the F.I.R. with the police, in respect of the same transaction and that this aspect has not been cross-examined by the respondents/accused and that therefore, there is no prejudice caused to the respondents and as such, this reason is also not proper. 7. Mr. Srinivasan, the learned counsel for the petitioner would further submit that a conjoint reading of sworn statement, private complaint and deposition made by the petitioner before the Court would make it clear that the case of the prosecution is consistent and there are no contradictions. On the basis of this submission, it is pointed out that the impugned order of discharge is liable to be set aside and the matter is to be remitted back. 8. On the other hand, Mr. On the basis of this submission, it is pointed out that the impugned order of discharge is liable to be set aside and the matter is to be remitted back. 8. On the other hand, Mr. Vijayakumar, learned counsel appearing for the respondents would state that a perusal of the earlier documents and the statement given by the witnesses before the Court would go to show that there is no consistent version which would go to the root of the matter and that therefore, this could be taken as a ground for discharge of the accused. 9. It is also submitted that under Section 245 Cr.P.C. if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out, the Magistrate is well within the powers to discharge and that since, there is no case made out according to the learned Judicial Magistrate, the impugned order cannot be said to be illegal and that therefore, the order has to be upheld. 10. At the outset, I must mention that Section 300, Cr.P.C. would not be applicable to this case. As correctly pointed out by Mr. Srinivasan, the ingredients of Section 160, I.P.C. are fundamentally different from the ingredients of the sections for which the private complaint has been filed now. 11. The citations referred to above would clearly indicate that if there is a trial in respect of the same transaction for the same offence, then there should not be a fresh trial for the said offence. But, in this case, both the parties were tried only for the offence under section 160 I.P.C. Therefore, it cannot be contended that Section 300, Cr.P.C. would be applicable. The judgment of this Court reported in Subbiah Kone v. Kandaswamy Kone, 1932 Mad WN 105 : 1932 (33) CrLJ 522) referred in Anantharaman v. Ramaswamy, 1961 Mad WN (Cri) 162 gives answer to this question. In that case, originally the accused were tried for the offence under section 3(12) of the Madras Towns Nuisances Act in respect of the occurrence for disorderly behaving in public place. When the accused were tried for the offence under Section 323, of course, in respect of same transaction, a question was raised that Section 403, Cr.P.C., presently 300 Cr.P.C. would be a bar in initiating such proceedings. When the accused were tried for the offence under Section 323, of course, in respect of same transaction, a question was raised that Section 403, Cr.P.C., presently 300 Cr.P.C. would be a bar in initiating such proceedings. While answering the said question, this Court has held as follows: "Section 403 of the Code of Criminal Procedure is no bar to convictions successively under Section 323, Indian Penal Code, and under section 3(12) of the Madras Towns Nuisances Act, in respect of the same conduct of being guilty of disorderly behaviour." 12. Section 160, I.P.C. is more, or less similar to the section of Madras Towns Nuisances Act. So, in this case also trial was only in respect of 160, I.P.C. and not with reference to the acts constituting the offences under sections 147, 341, 323, 326 and 506(i), I.P.C. Therefore, the ground which the Magistrate is invoked to discharge the accused under section 300, Cr.P.C. is not tenable and consequently, the impugned order suffers from illegality. 13. Coming to the non-production of the F.I.R., admittedly in respect of that aspect no cross-examination has been made by the respondents while the petitioner and other witnesses were examined. It is noticed in this context that in the private complaint and in the sworn statement as well in the deposition made by the complainant before the Court, P.W. 1 would specifically state that earlier she gave a complaint to the police which was registered in Cr. No. 253 of 1983 for the same offences and that she was asked to give a private complaint in the Court as the said case was referred as 'Mistake of fact'. So, there is no question of suppression about the F.I.R. having been earlier given by the petitioner to the police. 14. With reference to the contradictions as pointed out by the learned counsel for the petitioner, there is no inconsistency on the available materials before framing of charge. However, it is open to the respondents to cross-examine them on these aspects after framing of the charges. 15. Therefore, in view of the above discussion, I am of the view that the impugned order is liable to be set aside and accordingly, it is set aside. However, it is open to the respondents to cross-examine them on these aspects after framing of the charges. 15. Therefore, in view of the above discussion, I am of the view that the impugned order is liable to be set aside and accordingly, it is set aside. The matter is remitted back for framing of charges and to go on with the trial and the parties are entitled to adduce evidence on the respective sides and they are also at liberty to cross-examine them. 16. With the above observations, the revision petition is disposed of.