Madras High Court
Inspector Of Police, District Crime ... vs Kuppusamy And Anr. on 21 October, 2005
ORDER M. Thanikachalam, J.
1. The complainant in C.C. No. 77 of 2003 on the file of the Judicial Magistrate, Kangeyam is the revision petitioner.
2. The Inspector of Police, District Crime Bench, Erode District/ Revision petitioner, as complainant, filed a final report under Section 173(2) Cr.P.C. against the respondents herein, seeking appropriate punishment against them under Sections 468, 420 and 471 read with 109, I.P.C. As per the final report dated 3.9.2002, the second respondent herein, who is arrayed as A-1, is the owner of a mini bus bearing Regn. No. TN 27 N 0214. The first respondent herein appears to be some influential person, who is helping this kind of bus operators, in obtaining permit or modification of the permit, as the case may be.
3. It was noticed that when the bus bearing Reg. No. TN 27 N 0214 was operating in Vellakoil Highway to Orapalyam, A.1 had no valid permit or valid variation of the permit, though he is owning a permit to ply the bus bearing Reg. No. TN 27 N 0214 in some other route. The original route appears to be from Vellakoil L.K.A. Tower to Poppini. When it was disclosed by checking, that he has violated the original permit and plied the bus in some other route, and when he was questioned, it appears that he had produced a Xerox copy of the letter dated 26.7.2001, as if, emanated from the Chief Minister's Office, permitting variations in the original permit, thereby he was authorized to ply the above said bus in the disputed route. Further investigation revealed, that the document dated 26.7.2001 is not a genuine one, whereas, it was fabricated by the second accused/first respondent herein to help the second respondent/first accused. It is also the case of the prosecution, that the second respondent/first accused knowing fully well that it is a forged document, used the same as if genuine one. It is the further case of the prosecution also, that both the accused have cheated the transport authorities. In this way, completing the investigation, as stated above, a final report came to be filed against the respondents, seeking punishment for A-2 under Section 468, I.P.C. and seeking punishment for A-1 under Section 420 and 471, I.P.C. read with 109, I.P.C.
4. After the appearance of the accused, they have filed C.M.P. No. 579/ 2003 (for the 2nd accused) and C.M.P. No. 580/2003 (for the first accused) under Section 239, Cr.P.C. for their discharge on the grounds that, the original of the alleged forged document has not been produced before the Court and no prima facie case has been made out against both the accused, for all the alleged offences, which were opposed.
5. Learned Judicial Magistrate, Kangeyam, in her elaborate order, running to 22 pages, had discussed the case, more or less threadbare, on merit, and came to the conclusion, that no case has been made out against any one of the accused, not only on the ground of non-production of the original, but also on the ground, that no case has been made out. Thus, concluding, the accused were discharged from the charges, which is under challenge in this Revision.
6. Heard Mr. A.N. Thambithurai, learned Government Advocate (Criminal side) appearing for the petitioner and Mr. A.K. Sridharan, learned Counsel appearing for the respondents.
7. The learned Government Advocate would submit that the original of the disputed document, dated 26.7.2001, is not available either at the Regional Transport Office or in the office of the Chief Minister and, therefore it is not possible for the prosecution to produce, despite the concrete efforts taken by them and in this view for the non-production of the original, which should have been in the custody of either A-1 or A-2, throwing the prosecution case, at the inception, is not desirable. It is the further submission of the learned Government Advocate, that the materials placed before the Court would, prima facie, make out a case, not only under Section 468, I.P.C., but also under Section 420, I.P.C., which were not properly considered by the Trial Court, as it should have been, whereas the trial Court had undertaken the unnecessary effort to find out whether the materials would be sufficient to convict the accused or not, which is not the purport of Section 239, Cr.P.C. On these grounds, elaborating the same, the learned Government Advocate would submit that the erroneous order, rendered by the trial Court, in discharging the accused, should be set aside, thereby giving a chance for prosecuting the accused, as contemplated under Criminal Procedure Code.
8. In response to the above submission made by the learned Government Advocate, the learned Counsel appearing for the respondents/ accused would contend that single Criminal Revision Petition, against the orders passed in two C.M.Ps., though it is a common order, is not maintainable and in this view, the Revision deserves dismissal. It is the further submission of the learned Counsel, that in the absence of the primary evidence in this case, namely, the original document dated 26.7.2001, prosecuting the accused is not at all desirable, in view of the further fact, that the materials would disclose that no prima facie case has been made out.
9. The conclusion of the trial Court, even based upon certain judicial precedents, that in the absence of the original document dated 26.7.2001, prosecuting the accused, may not be proper and appears to be incorrect view. It is not the case of the prosecution that the original is available elsewhere. On the basis of the confession statement said to have been given by A-2, they have made a search to recover the original from the Chief Minister's Office. It is also the case of the prosecution that no variation permit has been issued by the Transport authorities.
10. It is an admitted position that even as per the submission made by the learned Counsel for the accused, no variation permit has been issued by the Regional Transport Authority. On the other hand, it is the case of the accused, that as per the document dated 26.7.2001, taking it as the variation permit, the owner of the bus, namely, the second respondent, plied the bus in different route, thereby showing, they are not having the original variation permit, which ought to have been obtained from the competent authority, namely, Regional Transport Authority. The letter dated 26.7.2001 reads as if it emanated from the Chief Minister's Office, it further reads, a copy also had been dent to the Secretary, Transport Corporation, Collector, etc, including a copy to the second respondent. It is an admitted position, that the Chief Ministers Office has no right to issue variation permit, if at all, they are competent to recommend to the authorities concerned to vary the permit. Thus, prima facie, it is made out, by having a Xerox copy of the letter dated 26.7.2001, or even original, as the case may be, the second respondent/first accused plied the bus, contravening the original permit. The statement given by the Regional Transport Authority also would disclose, that no variation permit has been given by them to the first accused, for the bus bearing Regn. No. TN 27 N 0214. Thus, it is made out, prima facie, as against the first accused, owner of the bus, that he had plied the bus without valid permit in some other route, where he is not entitled to ply the bus, and whether the first accused/2nd respondent believing the document dated 26.7.2001 as genuine, plied the bus or not is a matter to be decided only at the time of trial, not at the initial stage, while framing charge under Section 239, Cr.P.C.
11. Section 239, of Cr.P.C. Contemplates and confers powers to the Magistrate, that if upon considering the police report and document sent along with the final report, the Magistrate thinks necessary and consider the charge against the accused to be groundless, he shall discharge the accused, recording the reasons, thereby showing, it should not be the endeavour of the Magistrate to go in detail, whether the material placed before the Court would lead to the conviction or not. That should be the endeavour, after framing the charge at trial. The reading of the order passed by the learned Judicial Magistrate would disclose that he had crossed the bounds of the first limit, and entered into the second limit, which should not be, white considering the case under Section 239, Cr.P.C.
12. The absence of the original of the letter dated 26.7.2001 is explained, thereby, it appears, that prima facie, the prosecution has made out a case, for letting or admitting the secondary evidence. Whether this could be an admitted or not, an evidence also should be considered only at the time of trial, since they have explained by the materials for the non-production of the original of the letter dated 26.7.2001, whether it is acceptable or not, should be decided only at the time of trial. Hence, in my considered view, for the non-production of the original of the letter dated 26.7.2001, the discharge of the accused appears to be beyond the jurisdiction of the learned Judicial Magistrate. In this view, I am of the considered opinion, that the learned Judicial Magistrate has exceeded her limit, admittedly, under Section 239 of Cr.P.C. and therefore, this Court should interfere with the findings and this kind of finding should be arrived at, only after giving an opportunity to the prosecution to prosecute the accused on merit, whether it ends in acquittal or conviction, as the case may be, it is not the concern of the Court, while considering the case under Section 239 of Cr.P.C.
13. The statement recorded by the police, the documents produced, including the final report, prima facie implicate the accused, to a certain extent, whether they are genuine or not. By going though those materials, it is impossible to conclude, that there is no ground to frame charges or the accusations against the accused are groundless. The learned Judicial Magistrate, without considering the scope of Section 239, Cr.P.C., in its proper perspective, exceeded her limit, scanning the materials so meticulously, which is not warranted under Section 239, Cr.P.C. She has come to the conclusion, as if no case has been made out and decided the case on merit, which, in my considered opinion, is erroneous and liable to be set aside.
14. The contention of the learned Counsel for the respondents that single Revision is not maintainable, also appears to be not acceptable to me. After all, on the basis of the common order passed by the trial Court, though in two different C.M.Ps., single Criminal Revision Case is filed, and in filing such single Revision Case, I do not find any bar, without any provision of law and that is why, this Court has also admitted the Revision case. Instead of depending upon the technicalities, this Court should endeavour to do justice and in this view of the mater also, admitting the Revision case, though it is against two C.M.Ps., I conclude single Criminal Revision Case is maintainable.
15. For the foregoing reasons, the Revision deserves acceptance and therefore the same is allowed. The common order dated 2.5.2003 in Crl.M.P. Nos. 579 and 580 of 2003 in C.C. No. 77 of 2003 passed by the Judicial Magistrate, Kangeyam are set aside. The Judicial Magistrate, Kangeyam, is directed to take the case on file, where from it was dismissed, and to frame charges, as disclosed by the documents and proceed with the trial of the accused and dispose of the same in accordance with law, expeditiously, as far as possible.