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2006 DIGILAW 1136 (MAD)

Sanavas v. Maniyan and others

2006-04-20

R.REGUPATHI

body2006
ORDER This petition has been filed seeking to set aside the docket order, dated 24.3.2006, of the learned Judicial Magistrate No.II, Kuzhithurai in Unnumbered Calendar Case and direct the learned said Magistrate to take cognizance of the offence committed by the respondents and commit the same to the Human Rights Protection Court-cum-Principal Sessions Judge, Nagerocil. 2. The learned counsel for the petitioner submits that a private complaint has been filed before the learned Magistrate for offences punishable under the provisions of the I.P.C. as well as the Protection of Human Rights Act, but the same was returned stating as follows: “As per the circular dated 22.5.2003 of the Hon’ble High Court, Madras, this Court has no jurisdiction to entertain this private complaint against police and Hon’ble Chief Judicial Magistrate, Nagercoil alone has got jurisdiction in this regard. Hence, this compliant maybe presented before Hon’ble Chief Judicial Magistrate Court, Nagerocil and get necessary relief.” At the time, when the complaint was presented before the Chief Judicial Magistrate again, it was returned. The learned counsel for the petitioner submits that in view of the reason that offences may have to be enquired by the Human Rights Courts, initially the private complaint has to be filed before the concerned jurisdictional Magistrate and on satisfaction, the same may have to be committed to the Human Rights Court. The Court of Sessions as well as the Human Rights Court do not have any original jurisdiction to receive the complaint and it has to be processed only through the jurisdictional Magistrate. To substantiate such contention, the learned counsel for the petitioner relied on a case reported in Dr.S. Sourubarani & another v. C.Selvi 2005 (1) LW(Crl.) 139, the relevant portion of the same is extracted below: “22. This view is supported by a decision rendered by a division Bench of Andhra Pradesh High Court in A. Goverdhan Reddy v. Supdt.. of Police, Allahabad, (1998 Crl. LJ 561). In the case involved in the above decision, it seems, the accused was assaulted by the police, for which he sought for an appropriate direction, for registration of a case against the police, which was negatived. of Police, Allahabad, (1998 Crl. LJ 561). In the case involved in the above decision, it seems, the accused was assaulted by the police, for which he sought for an appropriate direction, for registration of a case against the police, which was negatived. When the same was challenged before the single Judge, he has not accepted the case of the accused, concluding that it was not the duty of the Magistrate to have caused enquiry and if at all, he should approach the Human Rights Court constituted, to give protection for this kind of alleged violation. That order was challenged before the Division Bench and while considering the effect of Section 30 of the Protection of Human Rights Act, the Division Bench of Andhra Pradesh High Court has held: ”... that the Human Rights Court, being a Court of Session for trial of offences violative of Human Rights, does not have the power to take cognizance of any offence as a Court of original jurisdiction unless the case is committed to it by a Magistrate. A Magistrate of the first class or a Magistrate of the second class, as the case may be, when empowered in this behalf, can take cognizance of any offence upon receiving a complaint of facts, upon a police report or upon information received from any person other than a police officer or upon his own knowledge. Court of Session, however, cannot do so and accordingly Human Rights Courts also cannot take cognizance of the offence as the Court of the first instance. There is, thus an error in the impugned judgment in thinking that petitioner-appellant has the remedy in the Human Rights Court". The above ratio is squarely applicable by all force, to the case on hand, since the dispute is only under the Human Rights Act. The learned counsel for the petitioner submits that therefore, the present private complaint must be taken on file by the learned Judicial Magistrate No.II, Kuzhithurai. 3. I have perused the materials available on record and heard the submissions made by the learned counsel for the petitioner. Considering the facts and circumstances of the case, the return endorsement, dated 24.3.2006, made by the learned Judicial Magistrate No.II, Kuzhithurai, is set aside. 3. I have perused the materials available on record and heard the submissions made by the learned counsel for the petitioner. Considering the facts and circumstances of the case, the return endorsement, dated 24.3.2006, made by the learned Judicial Magistrate No.II, Kuzhithurai, is set aside. It is further directed that the learned Judicial Magistrate No.II, Kuzhithurai, shall take the private complaint on file and if satisfied, may take cognizance and pass orders, in accordance with law. 4. With the above observation, this petition is ordered.