Madras High Court
Krishnamoorthy vs The Presiding Officer on 23 January, 2018
Author: P.N.Prakash
Bench: P.N.Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.01.2018
CORAM
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
Crl.R.C.(MD) No.42 of 2018
Krishnamoorthy ... Petitioner / Petitioner / Accused
vs.
1.The Presiding Officer
1st Additional District Court (PCR)
Thanjavur
2.The Inspector of Police
Ammapettai Police Station
Thanjavur District ... Respondent / Respondent /
Complainant
PRAYER: Criminal revision filed, under Section 397 r/w 401 Cr.P.C., to call
for the records pertaining to the impugned order passed by the 1st Additional
District and Sessions Judge (PCR), Thanjavur, in Crl.M.P.No.2599 of 2016 in
S.C.No.57 of 2014, dated 18.11.2017 and set aside the same.
!For Petitioner : Mr.G.Karuppasamy Pandiyan
^For Respondents : R1 - Court
Mrs.S.Bharathi
Government Advocate (Crl.Side) for R2
:ORDER
The petitioner is the de facto complainant in Ammapettai Police Station Crime No.227 of 2012, for the offences under Sections 302, 457 and 380 I.P.C. Thus, it is a case of murder for gain. During the course of investigation, the Police recovered some jewels and submitted the same to the learned Judicial Magistrate, Papanasam. The petitioner filed an application, under Section 451 Cr.P.C., seeking for interim custody of the jewels, which was allowed by the learned Judicial Magistrate, Papanasam and the jewels were handed over to the petitioner. After the case was committed to the Court of Sessions, trial began in S.C.No.57 of 2014 before the learned I Additional District and Sessions Judge (P.C.R.), Thanjavur. During the course of trial, the petitioner herein was examined as P.W.1 and the jewels recovered were marked as material objects. At that time, it came to the notice of the Court that the jewels produced by the petitioner were spurious jewels. Therefore, the learned I Additional District and Sessions Judge (P.C.R.), Thanjavur, initiated proceedings under Section 340 Cr.P.C. The petitioner was given a show-cause notice and asked to give explanation, for which the petitioner stated that he had handed over the jewels in as-is-where-is condition and that he had not converted the jewels. Being not satisfied with the explanation offered by the petitioner, the Trial Judge conducted a summary enquiry by examining four witnesses and recording their statements. Thereafter, the learned Trial Judge, by the impugned Order dated 18.11.2017, has directed the Head Clerk to lodge a complaint before the learned Judicial Magistrate No.I, Thanjavur, as required under Section 195 Cr.P.C. Challenging the said order, the present revision has been filed.
2. Heard Mr.G.Karuppasamy Pandiyan, learned counsel for the petitioner and Mrs.S.Bharathi, learned Government Advocate (Criminal Side) for the respondent ? Police and perused the materials filed in the form of typed set.
3. Mr.G.Karuppasamy Pandiyan, learned counsel for the petitioner submitted that the learned I Additional District and Sessions Judge (P.C.R.), Thanjavur, has given a finding of guilt in the impugned order and on account of which, the petitioner will not get a fair trial before the learned Judicial Magistrate No.I, Thanjavur. In support of his contention, the learned counsel for the petitioner brought to the notice of this Court the last Paragraph of the impugned order, dated 18.11.2017, which reads as follows:
?From the statements given by PW1 to PW4, it is found that PW1 Krishnamoorthy appears to have committed an offence punishable under section 194 IPC and hence, this court direct that a private complaint to be lodged as against him before the Jurisdictional Magistrate (ie) the Judicial Magistrate No.1, Thanjavur. The Head Clerk of this Court is directed and authorized to lodge Complaint before the learned Judicial Magistrate No.I, Thanjavur in this regard.?
4. The learned counsel for the petitioner also placed strong reliance upon the Constitutional Bench Judgment of the Honourable Supreme Court in M.S.Sheriff v. State of Madras, reported in 1954 SCR 1144 : AIR 1954 SC 397, which has been relied upon by this Court in S.V.R.Saroja v. S.V.Matha Prasad, reported in 2016 (5) CTC 353.
5. This Court gave its anxious consideration to the submissions made by the learned counsel for the petitioner.
6. The admitted facts are that the petitioner is the de facto complainant in Crime No.227 of 2012 and that he had obtained the jewels from the learned Judicial Magistrate, Papanasam, by filing an application under Section 451 Cr.P.C., after giving an undertaking that he will produce the jewels in the same condition before the Trial Court. It is also admitted that the petitioner was examined as P.W.1 in S.C.No.57 of 2014, before the learned I Additional District and Sessions Judge (P.C.R.), Thanjavur and the jewels were marked as material objects.
7. The learned counsel for the petitioner submitted that the prosecution launched against the petitioner would not be necessary in the light of the fact that most of the witnesses have turned hostile and the acquittal of the accused is inevitable. I am unable to agree with the said submission for the simple reason that just because the accused are likely to be acquitted in the main case, the Trial Court is not denuded of its powers to proceed against the witness under Section 340 Cr.P.C. In this case, the Trial Court found that the jewels produced by the petitioner were not gold jewels, but spurious gold. The judiciary cannot be taken for a ride by any party. Hence, the proceedings under Section 340 Cr.P.C., will not have any bearing on the main case nor the proceedings in the main case will have any bearing on the proceedings initiated under Section 340 Cr.P.C., against the petitioner.
8. I am unable to countenance the submission of the learned counsel for the petitioner, because the action under Section 340 Cr.P.C., is for producing fake jewels after having been taken custody of the original gold jewels.
9. This Court is in agreement with the submission of the learned counsel for the petitioner that the Court acting under Section 340 Cr.P.C., should not give a finding of guilt and it should leave it to the Trial Court to appreciate the evidence and come to an appropriate conclusion.
10. The learned counsel for the petitioner submitted that there is no prima facie material before the learned I Additional District and Sessions Judge (P.C.R.), Thanjavur, to show that the petitioner had changed the jewels. To appreciate his contention, this Court perused the statements of Allaudeen, Head Clerk of District Munsif Court, Thiruvaiyaru; Dhanalakshmi, Writer in Principal Sub Court, Thanjavur; Veeramani, Head Clerk of District Munsif-cum- Judicial Magistrate Court, Papanasam and Guruselvam, Jewel Appraiser. On perusal of the statements of the above four witnesses, it is seen that there are sufficient materials to show that the jewels that were produced in S.C.No.57 of 2014 are fake jewels. Therefore, this is not a case, where the learned I Additional District and Sessions Judge (P.C.R.), Thanjavur, has passed an order without sufficient materials. However, this Court expunges the last paragraph of the impugned Order, dated 18.11.2017, in Crl.M.P.No.2599 of 2016 in S.C.No.57 of 2014 and in its place, the following portion shall be substituted:
?From the statements given by P.Ws.1 to 4, it is found that there are prima facie materials to show that Krishnamoorthy / P.W.1 appears to have committed an offence punishable under Section 194 I.P.C., and hence, this Court directs that a private complaint to be lodged as against him before the jurisdictional Magistrate I.e., the Judicial Magistrate No.I, Thanjavur. The Head Clerk of this Court is directed and authorized to lodge complaint before the learned Judicial Magistrate No.I, Thanjavur, in this regard.?
11. The learned Judicial Magistrate No.I, Thanjavur, shall proceed with the complaint in accordance with law and come to a conclusion without in any manner being influenced by what has been stated either in this Order or in the impugned order, dated 18.11.2017, made in Crl.M.P.No.2599 of 2016 in S.C.No.57 of 2014, by the learned I Additional District and Sessions Judge (P.C.R.), Thanjavur.
12. With the above directions, the criminal revision is disposed of.
To:
1.The 1st Additional District and Sessions Judge (PCR), Thanjavur.
2.The Inspector of Police, Ammapettai Police Station, Thanjavur District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.