Madras High Court
M.Mahendra Boobathy vs Venkateshlal on 1 July, 2011
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/07/2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN Crl.O.P.(MD)No.6714 of 2011 and M.P.(MD)No.1 & 3 of 2011 1.M.Mahendra Boobathy 2.M.Thivahar 3.M.Kumaresan 4.M.Bell @ Grahamber ... Petitioners/A1 to 4 Vs. Venkateshlal ... Respondent/Complainant Prayer Criminal Original Petition filed under Section 482 of Cr.P.C., to call for the records in PRC No.18 of 2011, on the file of the learned Judicial Magistrate, Valliyoor and quash the same. !For Petitioners ... Mr.V.Kathirvel Senior counsel for Mr.H.Arumugam ^For Respondent ... Mr.C.Dhanaseelan :ORDER
This petition is filed to quash the proceedings in PRC No.18 of 2011, on the file of the learned Judicial Magistrate, Valliyoor.
2.The respondent gave a complaint against the petitioners herein before the Panagudi Police station for having committed offences under sections 341, 294(b), 324, 323, 307 and 506(ii) IPC and a case was registered by Panagudi police, in crime No.91 of 2002 against the petitioners and on the same day, another case was registered by the Panagudi police against the respondent and others, on the basis of the complaint given by the 1st petitioner, in crime No.90 of 2002 for offences under sections 147, 148, 341, 294(b), 324, 323, 307 and 506(ii) IPC. The Inspector of Police, Panagudi, after investigating both the crimes, referred the crime No.91 of 2002, the complaint given by the respondent, as 'mistake of fact' holding that the petitioners against whom the respondent had given a complaint in crime No.91 of 2002 acted in self-defence and therefore, they cannot be said to have committed any offence. Aggrieved over the same, the respondent filed a private complaint before the learned Judicial Magistrate, Valliyoor, reiterating the very same allegation made in the complaint registered in crime No.91 of 2002 and after recording the sworn statement of the respondent, the case was taken on file by the learned Judicial Magistrate, Valliyoor, in PRC No.18 of 2011 for offences committed under sections 294(b), 341, 323, 324, 307 and 506(ii)IPC and summons were issued against the petitioners herein. This was challenged in this petition.
3.Mr.V.Kathirvel, the learned Senior counsel appearing for the petitioners submitted that the learned Judicial Magistrate, Valliyoor, erred in taking cognizance of the case after the complaint given by the respondent in crime No.91 of 2002 was enquired into and investigated by the police and found to be false and it was referred as 'mistake of fact' as the petitioners only acted in self-defence and therefore, taking cognizance of the case by the learned Judicial Magistrate, Valliyoor, for the aforesaid offences is illegal.
4.He further submitted that the learned Judicial Magistrate, Valliyoor, without properly appreciating the provision of section 307 IPC, erred in taking cognizance of the case for offence under section 307 IPC.
5.It is further submitted by the learned Senior counsel appearing for the petitioners that to attract section 307 IPC, the injury must be serious to cause the death of a person and according to him, 307 IPC, can be divided into two categories and under one category, when the accused was armed with deadly weapon and attempted to cause murder and no injury was caused and under the another category, when the accused armed with deadly weapon and caused injury on the victim and under the first category, even though, no injury was caused, having regard to the act of the accused in holding a weapon and attempted to cause the murder of the victim, a case can be made out for offence under section 307 IPC and under 2nd category, when injury was caused and that injury was not so serious, so as to cause the death of a person and in that event, section 307 IPC cannot be made out, even though, a person was armed with deadly weapon. He, therefore, submitted that having regard to the injuries sustained by the injured, which are admittedly simple in nature, it cannot be stated that any offence under section 307 IPC is made out and therefore, the learned Judicial Magistrate, Valliyoor, erred in taking cognizance of the offence under section 307 IPC.
6.Mr.C.Dhanaseelan, the learned counsel appearing for the respondent submitted that even after the police referring the complaint of the respondent as 'mistake of fact', the respondent is entitled to initiate proceedings by giving a private complaint and the same is not prohibited under the Code of Criminal Procedure and in support of that, he relied upon the judgment reported in AIR 1969 MADRAS 177, in the case of C.Bhaktavatsalam vs. Govindarajulu, and MANU/TN/0638/2003 in the case of Rajan, Arumuga Chettiar, Bharathi and Joly Rajan vs. State, by the Inspector of Police.
7.He further submitted that to attract section 307 IPC, the injury need not be grievous or sufficient to cause the death of a person and it is only necessary that the person acted with the intention of causing murder of another person and did some overt-act with that object and even though, no injury was caused or simple injury was caused by the act of the person, an offence under section 307 IPC will be made out and in the present case, the witnesses have stated before the trial court that the petitioners were armed with deadly weapon and caused injury on the victim by uttering the following words:' gpughfh; yhiy kBfe;jpu g{gjp nj;BjhL brj;J bjhiy vd;W jiyapy; btl;odhh;. Therefore, having regard to the act of the persons and the words uttered by them, while inciting injury on the witnesses would make it clear that they acted with the intention of causing murder and therefore, the learned Judicial Magistrate, Valliyoor, has rightly taking cognizance of the case for offence under section 307 IPC.
8.He also relied upon the judgment of the Hon'ble Supreme Court reported in AIR 1983 SC 305 = 1983 Crl.L.J.331, in the case of State of Maharashtra vs. Balram Rama Patil, 2004(2) Crime 5 SC, in the case of Vasant Vithu Jadhav vs. State of Maharashtra, (2004) 2 Crime 72 (SC), in the R.Prakash vs. State of Karnataka, (2004)6 SCC 485, in the case of Bappa alias Bapu vs. State of Maharashtra and another, in support of his contention.
9.He, therefore, submitted that having regard to the motive, the weapon used by the petitioners and uttering of words, while causing injury would all make it clear that offence under section 307 IPC was made out against the petitioners and therefore, the learned Judicial Magistrate, Valliyoor, has right in taking cognizance of the case for such offence and there is no infirmity in taking cognizance by learned Judicial Magistrate, Vaillyoor.
10.Heard both sides.
11.As rightly submitted by the learned counsel appearing for the respondent, there is no bar for the learned Judicial Magistrate, Valliyoor, to take cognizance of private compliant given by a complainant, even though earlier complaint was referred to as 'mistake of fact' by the police after investigation.
12.In the judgment reported in AIR 1969 MADRAS 177 = 1969 Cri.L.J.618, in the case of C.Bhaktavatsalam vs. Govindarajulu, it has been held as follows:-
"Even in a case where the police investigate a cognizable offence in respect of the information received by them and submit a final report under S.173 Cr.P.C. of which the Magistrate having jurisdiction takes cognizance by virtue of S.190(1)(b), Cr.P.C., there is no bar for the Magistrate taking cognizance of a complaint filed by a party in respect of the same facts under S.190 (1)(a) Cr.P.C. and proceed with the enquiry or the trial, as the case may be, or the both. The investigation by the police of a cognizable offence has nothing to do with the Magistrate taking cognizance of the same matter on the complaint by a party."
13.The same principle was followed in the judgment reported in MANU/TN/0638/2003, in the case of Rajan, Arumuga Chettiar, Bharathi and Joly Rajan vs. State, by the Inspector of Police.
14.Therefore, the contention of the learned Senior counsel appearing for the petitioners that after the police referred the complaint given by the respondent as 'mistake of fact', the court should not have taken cognizance, cannot be accepted.
15.As regards, the 2nd submission of the learned Senior counsel appearing for the petitioners that having regard to the injuries sustained by the victim, no offence under section 307 IPC is made out, I am of the opinion that having regard to the statement of witnesses given before the learned Judicial Magistrate, Valliyoor, the offence under section 307 IPC is clearly made out.
16.As rightly submitted by the learned counsel appearing for the respondent that in the F.I.R., in Crime No.91 of 2002 as well as in the private complaint, it has been stated that ""vd; mz;zd; gpughfh; yhiy kBfe;jpug{gjp mUthshy; XA;fp nj;BjhL brj;J bjhiy Tjp ktBd vd;W brhy;yp tyJ gpd; jiyapy; btl;o buj;j fhak; cz;L gz;zpdhd;."""
17.Further, seven witnesses were examined before the learned Judicial Magistrate, Valliyoor and all of them uniformly stated in evidence that the first petitioner caused injury on the respondent with Aruval and also said that "nj;BjhL brj;J bjhiy"." Therefore, having regard to the intention with which the attack was made by the first petitioner and the weapon used, a case has been clearly made out for offence under under section 307 IPC.
18.Further in the judgment reported in AIR 1983 SC 305, in the case of State of Maharashtra vs. Balram Bama Patil and others, it has been held as follows:-
"To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intend couple with some overt act in execution thereof."
19.In 2004(2) Crimes 5 (SC), in the case of the State of Andhra Pradesh vs. Raj Gopal Asawa & another, after following the judgment of the Hon'ble Supreme Court, it has been held as follows:-
"Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. the determinative question is intention or knowledge, as the case may be, and not nature of the injury."
20.In the judgment reported in AIR 2004 SC 1808 in the case of Girija Shankar vs. State of U.P, the same principle was reiterated in (2004)2 SCC 485, in the case of Bappa Alias Bapu vs. State of Maharashtra and another.
21.Therefore, having regard to the law laid down in the above cases, the nature of injury will not have any role to decide whether an act committed comes within under section 307 IPC and it is only the intention coupled with some overt-act in execution, thereof will decide the issue and in this case, as stated supra, witnesses have stated that by uttering the words 'nj;BjhL brj;J bjhiy,' and the first petitioner caused injury with Aruval on the respondent and therefore, even though, the injury sustained by the respondent was simple in nature, having regard to the intention with which the injury was caused and the nature of weapon used, while causing injury, in my opinion, the case for offence under 307 IPC is clearly made out and the learned Judicial Magistrate, Valliyoor, was right in taking cognizance of the case for offence under section 307 IPC. Hence, I do not find any merit in the petition and accordingly, this petition is dismissed.
22.I also make it clear that any of the observations made by me, in dismissing of this petition, shall not be taken into consideration, while the case is decided on merits, after committal of the case to Sessions and the Sessions court has to deal with the facts of the case on the basis of the evidence adduced, without being influenced by any of the observations made in this order. These observations were made only for the limited purpose of finding out whether any prima facie has been made out for taking cognizance of the case for offence under section 307. Consequently, connected Miscellaneous Petition is closed.
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