Madras High Court
Balasundaram vs State Rep. By on 23 July, 2019
Author: P.N.Prakash
Bench: P.N.Prakash
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 23.07.2019
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
CRL.R.C.No.540 of 2019
Balasundaram .. Petitioner
Vs
1.State rep. by
The Inspector of Police,
Muthupettai Police Station,
Thiruvarur District.
(Cr.No.396/2015)
2.Arun
3.Dinesh
4.Shankar .. Respondents
Criminal revision preferred under Section 397 read with 401 of
Cr.P.C. to set aside the judgment in C.C.No.88 of 2017 dated 06.04.2017 on
the file of the Judicial Magistrate, Thiruthoraipoondi and order retrial in
C.C.No.88 of 2017 on the file of the Judicial Magistrate, Thiruthoraipoondi.
For Petitioner : Mr.K.Thenrajan
For R1 : Mr.C.Emalias,
Addl. Advocate General
for Mrs.P.Kritika Kamal, GA (Crl. Side)
For R2 to R4 : Mr.R.John Sathyan
http://www.judis.nic.in
2
ORDER
This Criminal Revision has been preferred to set aside the judgment dated 06.04.2017 passed by the Judicial Magistrate, Thiruthoraipoondi in C.C.No.88 of 2017.
2.It is the case of the de facto complainant that on account of property dispute with the family of the accused, on 10.09.2015, at about 11.30 p.m., Arun, Dinesh and another person, who can be identified but, whose name was not known to the de facto complainant, attacked the de facto complainant with deadly weapons causing injuries to him. On this allegation, the Sub Inspector of Police, Sathupettai Police Station, registered a case in Crime No.396 of 2015 on 11.09.2015 under Section 294(b), 324 and 307 IPC and the Inspector of Police took over the investigation of the case. The injured was admitted in the hospital and given treatment. It appears that the investigation in crime No.396 of 2015 was completed and a final report was filed by the Inspector of Police before the Judicial Magistrate, Thiruthoraipoondi against Arun, Dinesh and Shankar for the offences under Sections 294(b), 324 and 506(II) IPC on 25.09.2016. Summons were served on the accused and they appeared before the Judicial Magistrate, Thiruthoraipoondi on 06.04.2017 and charges for the said offences were framed against them. When questioned, they pleaded 'guilty'. The trial Court sentenced and convicted them as follows :
http://www.judis.nic.in 3 Rank of the Provision under Sentence accused which convicted Section 294(b) IPC Fine of Rs.100/- in default, to undergo 1 week simple imprisonment Section 506(II) IPC Fine of Rs.750/- in default, to undergo Arun/A1 1 week simple imprisonment Section 324 IPC Fine of Rs.500/- in default, to undergo 1 week simple imprisonment Dinesh/A2 Section 324 IPC Fine of Rs.500/- each in default, to and undergo 1 week simple imprisonment Shankar/A3 As ordered by the trial Court, the accused paid the fine. On coming to know that the accused were given a flea bite sentence, the de facto complainant has filed the present revision petition for setting aside the order dated 06.04.2017 passed by the Judicial Magistrate, Thiruthoraipoondi in C.C.No.88 of 2017.
3.Heard Mr.K.Thenrajan, learned counsel for the petitioner/de facto complainant; Mr.C.Emalias, learned Additional Advocate General appearing for the State/1st respondent and Mr.R.John Sathyan for the respondents 2 and 3.
4.Admittedly, the FIR was registered for the offences under Sections 294(b), 324, 307 and 506(II) IPC. At the time of filing final report, the police deleted Section 307 IPC and filed final report only for the lesser offences, viz.
294(b), 324 and 506(II) IPC. No notice was given to the de facto complainant and therefore, he did not have the opportunity to file a protest application. http://www.judis.nic.in 4
5.Learned counsel for the de facto complainant/petitioner submitted that the de facto complainant has suffered serious cut injuries and the attack was in the night hours and that the de facto complainant escaped death by a whisker. He also produced photographs and the medical treatment that the de facto complainant had undergone.
6.Per contra, Mr.John Sathyan submitted that the nature of injuries is not the only determinative factor. He further contended that the medical officer had opined that the de facto complainant had suffered only simple injuries and not serious injuries and had the accused wanted to eliminate the de facto complainant, they would not have inflicted simple injuries.
7.This Court gave its anxious consideration to the rival submissions. For attracting Section 307 IPC, sustaining of injuries is not always a determinative factor in all cases. However, the contention of the de facto complainant that notice should have been given by the Magistrate before accepting the final report for lesser offences, appears to be correct. Under such circumstances, this revision petition is allowed and the order dated 06.04.2017 passed by the Judicial Magistrate, Thiruthoraipoondi in C.C.No.88 of 2017 is set aside. This Court has not given any finding as to whether the provisions of Section 307 IPC could apply to the instant case and the matter is left open to be decided by the Judicial Magistrate, Thiruthoraipoondi. The accused and the de facto complainant are directed to appear before the Judicial http://www.judis.nic.in 5 Magistrate, Thiruthoraipoondi on 03.09.2019 at 10.30 a.m. on which date, the de facto complainant shall file his protest application. Thereafter, the learned Magistrate is directed to pass appropriate orders thereon in accordance with law. The plea of guilt of the accused shall stand effaced.
23.07.2019 gya To
1.The Judicial Magistrate, Thiruthoraipoondi.
2.The Inspector of Police, Muthupettai Police Station, Thiruvarur District.
3.The Public Prosecutor, High Court, Madras.
P.N.PRAKASH, J.
http://www.judis.nic.in 6 gya CRL.R.C.No.540 of 2019 23.07.2019 http://www.judis.nic.in