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2010 DIGILAW 846 (KER)

T. R. Sasi v. State of Kerala

2010-11-01

V.K.MOHANAN

body2010
ORDER V. K. Mohanan, J. 1. The complainant in a private complaint is the revision petitioner as he is aggrieved by the order of the learned Magistrate in not taking cognizance under S.324 and S.326 read with S.34 IPC against the second accused. 2. I have heard learned counsel for the revision petitioner and I have perused the order of the learned Magistrate. 3. The case of the revision petitioner is that the accused three in number criminally trespassed into the Court yard of the petitioner at 4.30 p.m. on 25/10/2009 and the second accused inflicted a beating on the back of the petitioner with a wooden piece causing contusion and abrasion on the back. It is also the case that the first accused has beaten the brother of the petitioner on his right foot causing fracture. The further allegation is that the third accused caught hold of the hair of the wife of the petitioner and inflicted beatings on her face and while she fell down, applied his foot several times causing contusion and pain. According to the petitioner, the injured including the petitioner, his brother and wife were treated in the Government Hospital, Mavelikkara. It is the further case of the petitioner that though Crime No. 350 of 2009 was registered in the Police Station for the offence punishable under S.452, S.323 and S.34 IPC, the Police subsequently referred the crime and aggrieved by the above approach of the Police, the petitioner preferred CMP No. 1938 of 2010 against the three accused / respondents 2 to 4 herein. But, the learned Magistrate, after examination of the witnesses under S.202, had taken the complaint on file as CC No. 315 of 2010 against the first and third accused alone, that too for the offences punishable under S.324 and S.326 IPC read with S.34 IPC. The complaint is dismissed under S.203 of the CrPC, so far as the offence under S.452 is concerned and also dismissed the complaint under S.203 CrPC so far as the second accused is concerned. It is the above order which is under challenge in this Criminal Revision Petition. 4. Learned counsel submitted that taking cognizance for the offence under S.324 and S.326 IPC read with S.34 IPC against accused Nos. It is the above order which is under challenge in this Criminal Revision Petition. 4. Learned counsel submitted that taking cognizance for the offence under S.324 and S.326 IPC read with S.34 IPC against accused Nos. 1 and 3 would show that there is sufficient ground to proceed against the accused and therefore, the learned Magistrate is not justified in not taking cognizance with respect to the offences under S.324 and S.326 read with S.34 IPC against the second accused. 5. I have carefully perused the order of the learned Magistrate. The learned Magistrate is perfectly correct in not taking cognizance for the offence under S.452 of IPC for the reason that there is no material in the complaint and the witnesses stated that the occurrence had taken place near the house of the complainant and there is no allegation or material to show that the incident had taken place inside the property of the complainant. So, I approve the decision of the learned Magistrate refusing to take cognizance for the offence under S.452 of IPC. 6. Reasons are stated by the learned Magistrate in not issuing summons against the second accused and dismissing the complaint under S.203 CrPC with respect to second accused. The learned Magistrate had already taken cognizance for the offence under S.324 and S.326 of IPC read with S.34 IPC with respect to first and third accused on the basis of the complaint preferred by the revision petitioner and on the basis of the sworn statement of the witnesses. So, even according to the learned Magistrate, the complainant and witnesses sustained fracture and injuries in the same incident and fracture injury and the offence under S.326 is attracted. It is also relevant to note that according to the learned Magistrate, in the complaint as well as in the statement of the witnesses, there is allegation that second accused hit the complainant on his back with a piece of wood. Even though, the Doctor who treated the complainant stated that he noted nothing on the body of the complainant, that is not a ground for not taking action against the second accused. Even though, the Doctor who treated the complainant stated that he noted nothing on the body of the complainant, that is not a ground for not taking action against the second accused. The specific allegation of the complainant is that in the incident, all the three accused persons were involved and the above allegation appears to be accepted by the learned Magistrate in proceeding further against the accused and if that be so, the fact that the Doctor did not notice anything on the body of the complainant, is not a ground for not initiating proceedings against the second accused, because if her presence itself is proved, the common intention, if any, can be gathered provided the other grounds are satisfied. The question as to whether the second accused has committed the offence or any overt act, is a matter to be enquired into on the basis of the evidence to be adduced in the matter. In the light of the decisions reported in Krishnan v. Suraj Bhan, AIR 1980 SC 1780 and Moideenkutty Haji and Others v. Kunhikoya and Others, 1987 (1) KLT 635 , what the Magistrate expected under S.202 is whether there is prima facie ground to proceed against the accused and not, whether there is sufficient evidence to canvass the conviction against the accused. On examining the approach of the learned Magistrate in the light of the above decision, I am of the view that the learned Magistrate is not justified in dismissing the complaint with respect to the second accused, especially when the Magistrate has taken cognizance for the offence under S.324 and S.326 read with S.34 IPC with respect to the other accused. 7. In the result, this Criminal Revision Petition is disposed of setting aside the order dated 05/08/2010 in CMP No. 1938 of 2010 of the Court of the Judicial First Class Magistrate - I, Mavelikkara to the extent, dismissing the complaint against the second accused and also approving the decision of the learned Magistrate refusing to take cognizance for the offence under S.452 of IPC. The learned Magistrate is directed to issue summons to the second accused also in accordance with procedure and law and dispose of the case on merit.