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2013 DIGILAW 2244 (MAD)

A. Nazer v. Gowthaman

2013-06-28

C.S.KARNAN

body2013
JUDGMENT 1. The revision petitioner herein/complainant has filed Crl.M.P.No.593 of 2003, on the file of Chief Judicial Magistrate, Coimbatore, against the respondents herein, as a private complaint, under Section 200 Cr.P.C. It was stated that his younger brother, Mohamed Ibrahim @ Saleem is studying in the law course at Coimbatore Law College and that on 31.05.2003, the first respondent herein and few others had entered into the petitioner's house at around 3 a.m., in the wee hours of the morning, stating that there is a criminal case against the said Mohammed Ibrahim alias Saleem in Crime No.242 of 2003, on the file of Mettuplayam Police Station and that his brother's presence is required for enquiry. After entering into the house, the respondents herein used abusive language in the presence of ladies in the house. Hence, the brother of Mohammed Ibrahim has filed a private complaint which is also pending on the file of Chief Judicial Magistrate. On 20.07.2003, at about 12 noon, when his brother Mohammed Ibrahim was proceeding towards Mettupalayam Market, both the respondents had taken him to the Mettupalayam Police Station. Knowing the facts, the revision petitioner and his mother rushed to the police station and enquired about the police custody of Mohammed Ibrahim. Then, the respondents replied that if the private complaint is withdrawn, then the entire problem could be solved. 2. The very next day, i.e., on 21.07.2003, the revision petitioner again went to the police station and he noticed that his brother Mohammed Ibrahim was put in the lockup and that all the clothes had been removed excepting his underwear by the first respondent herein. The first respondent further informed the revision petitioner that if the private complaint is not withdrawn, then his brother's future life would be affected. Thereafter, both the respondents had beaten his brother severely and hence, the petitioner had levelled a complaint before the Deputy Superintendent of Police, on 23.07.2003 against the first respondent. Besides sending a telegram complaint on 24.07.2003 to the District Collector. On the same day, i.e., 24.07.2003, based on the complaint given by one Dharvesh Mohideen, S/o.Khauideen of Mettupalaym a criminal case was filed against the petitioner's brother, viz., Mohammed Ibhrahim in Crime No.427 of 2003 under Section 294(B), 323, 307 of IPC. Besides sending a telegram complaint on 24.07.2003 to the District Collector. On the same day, i.e., 24.07.2003, based on the complaint given by one Dharvesh Mohideen, S/o.Khauideen of Mettupalaym a criminal case was filed against the petitioner's brother, viz., Mohammed Ibhrahim in Crime No.427 of 2003 under Section 294(B), 323, 307 of IPC. On the same day evening at about 6.30 p.m., both the respondents had forcibly taken the petitioner in the police jeep, wherein he was informed that they are going to remand his brother in jail and that he should sign as a witness for the arrest of his brother. On the petitioner's refusal to do so, the respondent had shown his revolver and forcibly got his signature. Thereafter, the respondents stated that his brother was remanded and indicated three persons as their witnesses. Further, the revision petitioner had sent a complaint to the higher authorities about this incident. The revision petitioner further stated that his mother has filed a writ petition in W.P.No.24690 of 2003 against the respondents for an investigation. Hence, the complainant has filed the said complaint for the offence under Sections 194, 298, 336, 343, 447, 506 (ii) IPC and listed five witnesses and annexed 14 documents supporting the said complaint. 3. The said complaint has been taken on file as Crl.M.P.No.593 of 2003. After perusing the complaint, the learned Magistrate dismissed the said petition. The learned Magistrate had observed that the revision petitioner stated in his complaint that his younger brother Mohammed Ibrahim has filed a private complaint against the respondents which is pending on this Court file actually and that is no such complaint is found in the Court file. Further, the learned judge observed that the petitioner can initiate separate legal proceedings against the respondents for beating him on 24.07.2003. On the same cause of action, the revision petitioner's mother had filed a writ petition in W.P.No.24690 of 2003 and that the High Court has also passed an order. The learned judge observed that the petitioners cannot seek relief for the same incident by giving the complaint at two different places. The learned judge further observed that in the said writ filed by the petitioner's mother, the first and the second respondents have been listed as the fourth and fifth respondents in that petition. The learned judge observed that the petitioners cannot seek relief for the same incident by giving the complaint at two different places. The learned judge further observed that in the said writ filed by the petitioner's mother, the first and the second respondents have been listed as the fourth and fifth respondents in that petition. It was observed that the High Court had passed an order in the writ petition on 04.09.2003, wherein it is stated that :- "Hence the third respondent is directed to consider the petitioner's representation dated 25.07.2003 on its own merits and in accordance with law and pass orders within one month from the date of receipt of a copy of this order and if the third respondent is able to accept the case of the petitioner, he is directed to take action immediately on the said representation" Therefore, the learned judge on observing that the High Court had already ordered for a separate enquiry to be conducted based on the writ petition filed by the petitioner's dated 25.07.2003 and on opining that for the same incident another separate private complaint cannot be filed, held that the present petition is not maintainable and hence, dismissed the petition. 4. Aggrieved by the said dismissal order, the above revision has been filed. 5. The learned counsel for the revision petitioner has contended in the revision stating that the writ petition has been filed by the mother of the revision petitioner for directing the higher police officials for investigation and departmental action against the respondents herein, since the respondents misused their police power and violated human rights, but the learned Magistrate has failed to look into this aspect. Further, the learned Magistrate has failed to understand that the respondents had entered into the petitioner's house and attempted to arrest his brother in the presence of Muslim ladies in the wee hours of the morning. As such, the respondents have committed criminal trespass and therefore, they should be punished by the criminal Court after a full fledged trial. The very competent counsel further contended that the revision petitioner's brother has been detained under police custody for about three days, which is an unlawful act and hence, the respondents had violated the human rights by taking law in their hand and by misusing the police power. The very competent counsel further contended that the revision petitioner's brother has been detained under police custody for about three days, which is an unlawful act and hence, the respondents had violated the human rights by taking law in their hand and by misusing the police power. The Crl.M.P.No.593 of 2003 is not a parallel proceeding, but the case has been filed on the basis of initial occurrence, hence, the learned counsel entreats the Court to allow the above revision and direct the learned Chief Judicial Magistrate to dispose the said case on merits, as if this is on, the interest of the respondents will not be in any way prejudiced. 6. The learned counsel for the respondents contended that the revision petitioner's mother has filed a writ petition in W.P.No.24690 of 2003 for direction to the higher police officials to conduct fair enquiry on the entire allegations levelled by the petitioners herein against the respondents and as such, the Crl.M.P.No.593 of 2003 is part and parcel of the initial occurrence. After investigation by the higher police officials, if the findings are proved against the respondents, only then the revision petitioner can initiate similar proceedings. It was submitted that the outcome of the writ proceedings only will show whether the case has been prima-facie made out or filed with mala-fide intention. Further, the revision petitioner also submitted complaints to various competent authorities viz., Hon'ble Chief Minister of Tamil Nadu, State Human Rights Commission, Director General of Police, District Superintendent of Police, District Collector, Deputy Superintendent of Police and the Hon'ble Chief Justice of Madras High Court. All the complaints has arisen from the same cause of action and the veracity of the complaints have not yet been accepted. Before deciding this complaint, the revision petitioner has filed Crl.M.P.No.593 of 2003, which is at a premature stage and therefore, the above revision is not maintainable since there are no irregularities and illegalities in the impugned order passed by the learned Magistrate. 7. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on scrutinizing the impugned order of the learned Chief Judicial Magistrate, this Court does not find any shortcomings in the dismissal order of the trial Court. 7. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on scrutinizing the impugned order of the learned Chief Judicial Magistrate, this Court does not find any shortcomings in the dismissal order of the trial Court. The view of this Court is that as per the writ petitioner's prayer in W.P.No.24690 of 2003, the veracity of the entire incidents listed in the case has to be determined by the competent authorities. Only after receiving a report from the concerned authorities, it can be decided whether or not prima-facie case has been made regarding the occurrence. If the petitioner receives any report in his favour based on the order passed in the writ petition, he could file a similar petition on the strength of the investigation report from the authority. 8. In the result, the above revision is dismissed. Consequently, the order passed in Crl.M.P.No.593 of 2003, on the file of Chief Judicial Magistrate, Coimbatore, dated 15.12.2003, is confirmed. Accordingly ordered.