Madras High Court
Dr.S.K.Packiaraj vs T.V.Mathan Kumar on 21 December, 2017
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.12.2017 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN Criminal Revision Petition (MD) No.916 of 2008 Dr.S.K.Packiaraj ... Petitioner Vs. T.V.Mathan Kumar ... Respondent Prayer: Criminal Revision Petition filed under Section 397 read with 401 of Cr.P.C., to set aside the judgement passed by the I Additional District and Sessions Judge, Madurai in C.A.No.56/2007 dated 10.03.2008. !For Petitioner : Mr.M.Patturajan ^For Respondent : Mr.A.R.L.Sundaresan, senior counsel for M/s.A.L.Ganthimathi :ORDER
The revision petitioner questions the order of remand made made by the appellate Court in C.A.No.56 of 2007 on the file of the I Additional Sessions Judge, Madurai.
2.The respondent herein one T.V.Mathankumar filed O.S.No.105 of 2001 before the District Munsif Court, Melur seeking the relief of injunction restraining the defendants therein from dispossessing him except by due process of law. The respondent had described himself as the Correspondent of Mother Mary Matriculation School. The revision petitioner herein was described as the power agent of one Regina Chandraraj and shown as the defendant in the said suit. The said suit ultimately came to be dismissed on 29.07.2003. The revision petitioner herein thereupon filed I.A.No.132 of 2003 in the said suit and wanted the trial Court to initiate prosecution against the respondent herein. The said petition was filed under Section 195 (1)(b)(i) read with Section 340 of Cr.P.C. The matter was fully enquired and the trial Court by order dated 03.11.2004 recorded a finding adverse to the respondent herein and made a complaint in writing to the Judicial Magistrate, Melur. The said petition was apparently taken on file by the learned Judicial Magistrate, Melur.
3.In the meanwhile, the respondent herein filed C.A.No.112 of 2005 before the Additional District Sessions Judge, Fast Track Court No.3, Madurai, questioning the decision of the trial Court in lodging a complaint under Section 340 of Cr.P.C. The said criminal appeal was dismissed on 16.09.2005. The Judicial Magistrate, Melur ought to have proceeded in the matter by treating the District Munsif, Melur as the complainant. Instead, the revision petitioner herein was treated as a complainant. After despatching the complaint in writing to the Judicial Magistrate, Melur, the complaining Court went into a limbo. This is patently evident from the fact that it was Thiru.M.Patturajan, learned counsel, who prosecuted the respondent herein in C.C.No.83 of 2005 on the file of the Judicial Magistrate, Melur. The Public Prosecutor is nowhere in the picture.
4.A look at the list of exhibits as well as the list of witnesses examined on the side of the complainant would show that again the matter was proceeded as if it was a private complaint lodged by a private individual. On the side of the complainant, Mr.Pakiaraj, Mr.Arthur Joseph Asirvatham and one Annalakshmi were examined as witnesses. Exs.P1 to P12 were marked. The learned Judicial Magistrate, Melur by judgment dated 14.03.2007 found the respondent herein guilty of the offence under Section 193 of I.P.C. and sentenced him to undergo one year rigorous imprisonment and also levied a fine of Rs.2,000/-. Default sentence of three months imprisonment was also imposed in event of failure to remit the said fine. Aggrieved by the same, the respondent herein filed C.A.No.56 of 2007 before the Additional District Judge, Madurai. Before the learned appellate Judge, it was pointed out that the entire burden of song of the prosecution was that Mr.Mathankumar had deliberately and falsely described himself as the Correspondent of Mother Mary Matriculation School.
5.It is beyond dispute that the respondent herein was in occupation of a building door No.4/667, Annai Street, Vandiyur Main Road, Anna Nagar, Madurai. A school in the name and style of Mother Mary Matriculation School was being run. The said building belongs to Dr.Regina Chandraraj. Admittedly, she was shown as defendant in the suit. The respondent herein was under the impression that Dr.Pakiaraj was her authorised agent. Be that as it may, in the year 2002, Dr.Arthur Joseph Asirvatham, who was the actual power agent of Dr.Regina Chandraraj filed R.C.O.P.No.2 of 2002 on the file of the Rent Controller, Melur for evicting the tenant. In the said eviction petition, two persons were shown as respondents. The first one was Mrs.Teena Madan. The second respondent was described as ?Mother Mary Matriculation School represented through its Correspondent Mr.T.V.Madhan Kumar?. The very same Madhan Kumar is the respondent herein. This petition filed by the landlady was not originally marked in C.C.No.83 of 2005 on the file of the Judicial Magistrate, Melur. Therefore, to mark the same by way of additional evidence, a petition was filed under Section 391 of Cr.P.C. before the appellate Court in C.A.No.56 of 2007.
6.A mere perusal of the said additional evidence would establish two things. Even according to the land lady, the respondent herein was the Correspondent of Mother Mary Matriculation School. Secondly, as per the averments in the eviction petition, Dr.Packiaraj did play a role in the matter. The revision petitioner is not an utter stranger who had been unnecessarily roped in.
7.The learned senior counsel appearing for the respondent would point out that averments to this effect are found in the very R.C.O.P petition filed by Dr.Arthur Joseph Asirvatham. Finding that this document is a material piece of evidence which deserved to be brought on record, the appellate Judge chose to set aside the judgment passed by the Judicial Magistrate, Melur in C.C.No.83 of 2005 and remitted the matter. Contending that the appellate Judge ought to have sustained the conviction passed by the Judicial Magistrate and erred in passing an order of remand, this revision petition has been filed at the instance of the person, who initiated the prosecution proceedings.
8.This Court is exercising the revisional jurisdiction conferred under Section 401 of Cr.P.C. It is its judicial duty to consider the correctness of the order passed by the appellate Judge. It is true that the respondent herein did not question the order of remand made by the appellate Court. However, this Court comes to the conclusion that the order passed by the Judicial Magistrate is erroneous and that the entire proceedings deserve to be set aside in toto.
9.The facts are not in dispute. All that the respondent herein did was to institute a simple suit for protection of his possession. He filed what is colloquially called as 'due process of law' suit. That the respondent was in possession is admitted by the filing of R.C.O.P.No.2 of 2002 on the file of the Rent Controller, Melur. As the learned senior counsel for the respondent herein rightly pointed out, the petition averments in the said R.C.O.P. are sufficient to undermine the entire prosecution case. The prosecution case rests on the accusation that the respondent had falsely described himself as the Correspondent of Mother Mary Matriculation School and that he had falsely described Dr.Packiaraj, the revision petitioner as the authorised power agent of Dr.Regina Chandraraj.
10.One would come to the conclusion that the respondent was justified in entertaining the impression that Dr.Regina Chandraraj, the landlady had authorised the revision petitioner herein to act as her agent on a mere reading of the petition averments set out in R.C.O.P.No.2 of 2002. The role played by the revision petitioner on behalf of the landlady is referred to in the eviction petition issued. That is why the appellate Judge rightly wanted the said document to be brought on record by exercising his power under Section 391 of Cr.P.C. Power of the appellate Court to take further evidence is enshrined in the said provision. Unlike the power of the appellate Court exercising civil jurisdiction, an additional evidence can be taken by the criminal Court of law, if it thinks that additional evidence is necessary. Section 193 of I.P.C. can be invoked only if the accused has given false evidence at any stage of a judicial proceeding. In this case, a reading of the material on record cannot lead to the influence that the respondent herein has given such a false evidence. Section 193 of IPC can be invoked against someone who intentionally gives or fabricates false evidence. In this case, all that the respondent did was to file a simple suit to protect himself against dispossession except by due process of law. To prosecute some one for the offence committed under Section 193 of I.P.C., it is only the concerned Court alone that can be the Complainant. Proviso to Section 195 of I.P.C. reads that no Court shall take cognizance of any offence punishable under Section 193 of I.P.C. except on the complaint in writing of that Court or some other Court to which that Court is subordinate. The provision underwent an amendment with effect from 16.04.2006. Even an officer of the Court authorised in writing in that behalf can be the complainant.
11.In this case, prosecution commenced in the year 2005. Therefore, the Court alone can be the complainant. In fact, the District Munsif Melur had sent the complainant in writing on 05.05.2005. The said complaint had obviously reached the Judicial Magistrate, Melur. The Judicial Magistrate, Melur would also record that the same was taken on file. Thereafter, the matter had been conducted as if it is a private complaint instituted by Dr.Packiaraj against the respondent herein. As already observed, it was Mr.Patturajan, the learned counsel for the revision petitioner herein who had appeared for the complainant before the learned Judicial Magistrate also. In this case, prosecution was not conducted by the Court concerned. This is an illegality that goes to the root of the matter. Offences against public justice are to be dealt with only in the matter prescribed by Section 195 of Cr.P.C. If prosecution in such cases is left to private parties, it will become an engine of oppression.
12.This Court is therefore of the view that the learned appellate Judge ought to have allowed the criminal appeal filed by the respondent herein in toto. This Court therefore, modifies the order dated 10.03.2008 made in C.A.No.56 of 2007 on the file of I Additional District and Sessions Judge, Madurai. The order setting aside the conviction and sentence made in C.C.No.83 of 2005 vide judgment dated 14.03.2007 is confirmed. The order of remand alone is set aside. Though this Court is only exercising the revisional jurisdiction and not and inherent jurisdiction, a subsequent development that had taken place in the case can certainly be noted. The learned counsel for the revision petitioner would fairly submit that the possession of the building in question had already been surrendered by the respondent to the landlady. Therefore, in the interest of justice also, it is better that the whole issue is given a quietus. That alone would serve the substantial ends of justice. Relief is given to the respondent for three reasons viz. (i) in view of the additional evidence brought on record, no offence under Section 193 of I.P.C. is made out, (ii) Grave procedural illegality committed by the trial Court in permitting the private party to conduct the prosecution in place of the complainant Court through its Public Prosecutor and (iii) surrender of the suit premises by the respondent and handing over the same to the landlady. Even in South Africa which witnessed terrible crimes during the apartheid regime, Truth and Reconciliation Commission was constituted so as to enable the perpetrators to come clean and to give a ?closure?. Judicial time is too precious. It is to be spent only on essential litigation and not for facilitating ego-trips of individuals.
13.This criminal revision is disposed of accordingly.
To
1.The Additional District and Sessions Judge, Madurai.
2.The Judicial Magistrate, Melur, .