Madras High Court
Paulraj vs The Inspector Of Police on 16 August, 2024
Crl.R.C(MD)No.1446 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 02.08.2024
Pronounced on : 16.08.2024
CORAM :
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.R.C(MD)No.1446 of 2023
Paulraj ... Petitioner
Vs.
1.The Inspector of Police,
Nilakkottai Police Station,
Dindigul District.
(In Crime No.62 of 2019)
2.Palanichamy
3.Chinnammal
4.Kathiravan
5.Umakumari ... Respondents
PRAYER: Criminal Revision filed under Section 397 r/w 401 of the
Criminal Procedure Code, to call for the records and set aside the impugned
order of taking cognizance dated 13.09.2019 the charge sheet filed in
S.T.C.No.1692 of 2019 on the file of the learned Judicial Magistrate,
Nilakkottai.
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Crl.R.C(MD)No.1446 of 2023
For Petitioner : Mr.C.Mayilvahana Rajendran
For Respondents : Mr.B.Thanga Aravindh
Government Advocate (Crl. Side)
for R1
: Mr.C.Saravanakumar
for R2
ORDER
This criminal Revision Case has been filed by the complainant in Crime No. 62 of 2019 on the file of the 1st respondent police to set aside the impugned order of the learned Judicial Magistrate, Nilakkottai, dated 13.09.2019 in S.T.C.No.1692 of 2019 accepting the plea of guilty of the accused in the above crime number.
2.The petitioner and the second respondent are brothers. The third respondent is the wife of the second respondent. The fourth respondent is the son of the second respondent and the fifth respondent is the relative of the second respondent. The petitioner is a retired teacher and on 15.07.2018 at about 09.30 a.m. the private respondents No. 2 to 5 illegally trespassed into land and brutally attacked him with Aruval and caused injuries and also criminally intimidated him. Therefore, he was admitted in the hospital and Page No.2/12 https://www.mhc.tn.gov.in/judis Crl.R.C(MD)No.1446 of 2023 the first respondent police registered a case in Crime No.62 of 2019, on the basis of the complaint against the respondents Nos.2 to 5 for the alleged offence under Sections 294(b), 324, 506 (ii) of I.P.C. Similarly, the first respondent police registered the counter case against him also.
3.The petitioner came to know that the 1st respondent police has completed the investigation and filed the final report only under section 294
(b) of I.P.C. and the same came to an endby paying of fine of Rs.250/-. Therefore he filed the present petition.
4. The Learned counsel for the petitioner submitted that the investigation agency has committed the following errors:
4.1. Once they have filed the final report on the basis of the complaint given by the petitioner, they ought to have closed the counter complaint given by the respondents 2 to 5 herein.
4.2. The investigating agency have filed the final report deleting Sections 324, 506 (ii) of I.P.C. When there is no dispute relating to the injuries sustained by him. Number of witnesses made statements to Page No.3/12 https://www.mhc.tn.gov.in/judis Crl.R.C(MD)No.1446 of 2023 substantiate the same. But they filed report only against the A1 and A2 alone and deleted the remaining accused.
4.3. The Learned counsel submitted that the learned judicial magistrate has committed the following error :
4.3.1. Once final report was filed deleting some of the accused and deleting major offence, before accepting the same, it is duty of the Learned Judicial Magistrate to issue notice to the defacto complainant with copy of closure report and hear the defacto complainant and take a decision on the basis of the parameter issued by the Hon’ble Supreme Court in the case of Bhagwant Singh v. Commissioner of Police and another, reported in AIR 1985 SC 1285.
4.3.2. The Learned Judicial Magistrate has accepted the said final report without notice to the complainant and taken cognizance in S.T.C.No. 1692 of 2019 and accepted the plea of guilty of the accused and imposed the fine. It is a case and case in counter. In the said circumstances as per the law laid down by this court, it is duty of the Learned Judicial Magistrate to conduct simultaneous trial in both cases and passed the judgment on the same day.
4.4. The Learned counsel for the accused submitted that it is within the Page No.4/12 https://www.mhc.tn.gov.in/judis Crl.R.C(MD)No.1446 of 2023 jurisdiction of the Learned Judicial Magistrate to accept the plea of guilty.
Therefore there is no error.
4.4.1. This revision is not maintainable, when the petitioner has remedy under Section 372 of Cr.P.C.
4.5. The learned Government Advocate (Crl.Side) also reiterated the above submission and specifically held that the investigating agency filed the final report only against the some of the accused and for the offence under Section 294(b) of I.P.C., alone on the collected materials. Therefore, he seeks to dismiss the revision.
5. This Court perused the records and also impugned order and relevant materials produced by the both parties.
6. On 15.07.2018 at 09.30 a.m., the respondents 2 to 5 criminally trespassed into the petitioner's land and assaulted with deadly weapons and caused injuries and criminally intimidated him. On the basis of the said allegation, the respondent police registered the case for the offences under Sections 447, 294 (b), 324 and 506 (ii) of I.P.C. The statement of the revision Page No.5/12 https://www.mhc.tn.gov.in/judis Crl.R.C(MD)No.1446 of 2023 petitioner recorded under Section 161 (3) of Cr.P.C. clearly disclosed that the above offences are made out. From the record, it is seen that the Sub Inspector of Police allegedly recorded the further statement with different allegation. On the basis of the allegedly recorded further statement, final report was filed against the A1 and A2 alone under Section 294 (b) of I.P.C. and accused A3 and A4 were deleted and further deleting the offence under Sections 447, 324 and 506 (ii) of I.P.C. The said final report was accepted by the Learned Trial Judge by taking the cognizance in S.T.C.No. 1692 of 2019 and the same is not in accordance with the law as laid down by the Hon’ble Supreme Court in various precedents right from the Hon’ble Three Judges Bench of judgment in the case of Bhagwant Singh v. Commissioner of Police and another, reported in AIR 1985 SC 1285.
7. The Hon’ble Supreme Court has reiterated the principles that before accepting the negative report or a report deleting some of the accused and also deleting the major offence, the Court ought to have issued notice to the defacto complainant and heard and accepted the same. But, in this case, the same was not done. Therefore, this Court concurs with the submission of the Learned counsel for the petitioner that the Learned Trial Judge committed Page No.6/12 https://www.mhc.tn.gov.in/judis Crl.R.C(MD)No.1446 of 2023 error in taking the cognizance in accepting the final report deleting some of the accused and deleting some of the offence without giving notice to the defacto complainant.
8. The Hon'ble Supreme Court in the case of Nathi Lal V. State of U.P., reported in 1990 (Supp) SCC 145 has prescribed the procedure to be followed in the case of “case and counter case”, which reads as follows:
“2.We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross case one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter, he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same leanred Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the case, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Page No.7/12 https://www.mhc.tn.gov.in/judis Crl.R.C(MD)No.1446 of 2023 Each case must be decided on the basis of the evidence which has been placed on record in the particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned judge one after the other.” The said principle has been reiterated and summarised by this Court in the case of Ganeshan and another Vs State and another reported in 2011 (5) CTC 747, and the said principle reiterated by the Hon'ble Division Bench in the case of R.Velladurai and others Vs. State reported in 2016 (1) LW (Crl)
516. As per the principle laid down in the above case, the learned Judicial Magistrate ought to have conducted simultaneous trial in both the cases.
9. But, the leanred trial judge without following the same accepted the plea of guilty and closed the case and conducted separate trial in the counter case initiated against the petitioner herein. The said process is not legally valid. Therefore, this Court also concurs with the submission of the Learned counsel for the defacto complainant.
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10.The questions now remains is as to the jurisdiction of this court to deal with the facts and circumstances of the present case. The recording of the further statement with different version from the FIR by the investigating officer to be tested by issuing notice to the petitioner. The said opportunity had not been provided to the petitioner. The defacto complainant namely the petitioner had been kept away while doing investigation and while closing the case. Therefore, this court has power to entertain this revision as rightly argued by the learned counsel of the petitioner. The filing of the final report deleting some of the accused and deleting the major offence all happened behind the back of the petitioner and this Court is duty bound to redress the victim by exercising power under the revisional jurisdiction in the extraordinary circumstances of this case.
11.Accordingly, this Criminal Revision Case is allowed in the following terms:
11.1.The impugned order of the learned trial judge, Nilakkottai, in S.T.C.No.1692 of 2019, in accepting the plea of guilty under Section 294 (b) of I.P.C. dated 13.09.2019 is hereby set aside.
11.2.The learned trial judge is hereby directed to take the final report Page No.9/12 https://www.mhc.tn.gov.in/judis Crl.R.C(MD)No.1446 of 2023 dated 15.06.2019 filed by the first respondent police filed on 02.09.2019 and issue notice to the petitioner and obtain his objection and proceed as per the judgment of the Hon’ble Supreme Court in the case of Bhagwant Singh v.
Commissioner of Police and another, reported in AIR 1985 SC 1285.
11.3.The Inspector General of Police, South Zone, Reserve line, Race course colony, Madurai,is hereby directed to conduct enquiry regarding recording of further statement of the witnesses without the knowledge of the defacto complainant dated 15.06.2019 and take necessary action against the investigating officer Thiru.Abdul Rahim, Sub Inspector of Police, after affording the opportunity to him within two months from the date of copy of the receipt of this order.
16.08.2024
NCC : Yes/No
Index :Yes/No
Internet :Yes/No
vsg/sbn
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Crl.R.C(MD)No.1446 of 2023
To
1.The learned Judicial Magistrate,
Nilakkottai.
2.The Inspector General of Police,
South Zone,
Reserve line, Race course colony,
Madurai.
3.The Inspector of Police,
Nilakkottai Police Station,
Dindigul District.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
5. The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C(MD)No.1446 of 2023
K.K.RAMAKRISHNAN, J.
vsg
Predelivery order made in
Crl.R.C(MD)No.1446 of 2023
16.08.2024
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