BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/04/2010 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Crl.O.P(MD)No.1218 of 2009 M.V.P.Maharaja ... Petitioner/ Defacto complainant Vs 1.State represented by The Sub Inspector of Police, Thoothukudi Vadapagam Police Station, Thoothukudi District. ... 1st Respondent/ Respondent Complainant 2.P.Maniraj 2.M.Mahendra Prabhu ... Respondents 2 and 3/ Petitioners/Accused Prayer Petition under Section 482 of the Code of Criminal Procedure, to set aside the order made in Crl.R.C.No.24 of 2008 on the file of the learned Fast Track Court No.I, Tuticorin, and dismiss the discharge petition filed by the respondents 2 and 3 in Crl.M.P.No.8965 of 2007 in C.C.No.49 of 2007 on the file of the learned Judicial Magistrate, Tuticorin. !For Petitioner ... Mr.V.Sasikumar ^For Respondent ... Mr.S.Muthu Venkatesan, Govt.Advocate (Crl.Side) for R.1 Mr.P.Pethu Rajesh for R2 & R3 * * * * * :ORDER
The petitioner herein is the defacto complainant in C.C.No.49 of 2007 on
the file of the learned Judicial Magistrate No.II, Tuticorin. The petitioner
and the second respondent are brothers and the third respondent is a college
student and the son of the second respondent.
2. The present petition has been filed by the petitioner challenging the
order passed by the Fast Track Court No.I, Tuticorin, in Crl.R.C.No.24 of 2008,
wherein the order passed in C.C.No.49 of 2007 on the file of the learned
Judicial Magistrate No.II, Tuticorin, rejecting the discharge petition filed by
the respondents 2 and 3, has been set aside by allowing the said Criminal
revision.
3. The brief facts of the case are as follows:
3.1.On 28.12.2006, a complaint was given by the second respondent against
the petitioner herein alleging that the petitioner has assaulted him with sickle
at 09.30 p.m, along with two other persons and used filthy language against the
second respondent’s wife. The said complaint has been made for the alleged
offences under Sections 341, 324 and 506(ii) I.P.C. Thereafter, the said
complaint was received and instead of registering the complaint, a receipt was
given by the first respondent. The second respondent is also said to have been
injured with contusion of the right arm. Thereafter, another complaint was
given by the petitioner against the respondents 2 and 3 on 29.12.2006 at 01.30
a.m. for the same occurrence for the alleged offences under Sections 341, 324
and 506(ii) I.P.C. The said complaint was made against the respondents 2 and 3.
3.2.The subsequent complaint given by the petitioner has been registered
in Cr.No.644 of 20056 as against the earlier complaint given by the second
respondent and it was only received and receipt in Receipt No.308/2006 alone was
given.
3.3.The second respondent filed a petition under Section 156(3) of the
Code of Criminal Procedure to register the earlier complaint against the
petitioner and the learned Judicial Magistrate in Crl.M.P.No.762 of 2007 dated
20.02.2007, has ordered the registration of the complaint and to investigate
into the matter. The said complaint was not registered in spite of the
subsequent two communications sent by the learned jurisdictional Magistrate.
Thereafter, a contempt petition was filed by the second respondent against the
first respondent for not registering the case and investigating the matter. The
said petition was dismissed by the learned Judicial Magistrate No.II, Tuticorin,
in Cr.M.P.No.2918 of 2007 on 23.07.2007, stating that inasmuch as the first
respondent has sought for clarification in view of the allegations made by the
second respondent against the first respondent regarding the registration of the
F.I.R, the case has not been registered as per the directions of the learned
Judicial Magistrate No.II, Tuticorin and therefore, the same cannot be construed
as wilful disobedience. Thereafter, a reference notice was given by the first
respondent to the petitioner on 19.10.2007 stating that the case has been
registered against the petitioner on 30.05.2007 itself and closed on 31.05.2007.
Thereafter, the second respondent filed a discharge petition in Crl.M.P.No.8965
of 2007. In the said petition, the second respondent has also filed a number of
documents. The learned Judicial Magistrate No.II, Tuticorin, has dismissed the
said petition, but the same was reversed by the Fast Track Court No.I,
Tuticorin, in Crl.R.C.No.24 of 2008.
4. Challenging the above said order, this petition has been filed seeking
invocation of the power of this Court under Section 482 of the Code of Criminal
Procedure.
5. Before the trial Court, while filing the discharge petition, number of
documents have been marked by the second respondent. The second respondent has
also produced the documents to show that his complaint was earlier and it was
not registered, that before the same hospital, both the petitioner and the
second respondent have been referred, even before the hospital, the petitioner
was given only Out Patient receipt and the petitioner was shown to have been
given the Accident Register. The first Accident Register which was written and
cancelled having the time at 03.00 a.m and the second Accident Register was also
signed showing the same time, but there is difference of about 50 numbers
between the earlier Accident Register which was cancelled and the subsequent
one. Further documents are produced to show that the jail authorities at the
time of remand as well as the learned Judicial Magistrate, recorded the nature
of injuries sustained by the second respondent and in spite of the reference
made by the jail authorities with a request to the first respondent to give
sufficient protection for treatment of the second respondent, no sufficient
action was taken and there is contradiction between the injuries as noted by the
learned Magistrate and the jail authorities as against the one noted in the
receipt given by the hospital authorities. Further documents have been given to
show that the person concerned who gave the Accident Register is not the person
authorised to give. It is also indicated that the first Accident Register which
was cancelled was signed by the authorised person, but the second one was not
authorised and the information obtained under the Right to Information Act, was
also shown as one of the documents to substantiate the said contention.
6. The learned Judicial Magistrate has dismissed the discharge petition
filed by the petitioner without considering the documents filed by the
respondents 2 and 3. However, the said documents have been taken into
consideration by the Fast Track Court No.I, Tuticorin and the finding has been
given that the investigation has not been done by the first respondent properly
and it reveals only a prejudiced view in favour of the one party, more so, in
not registering the earlier complaint. The learned Judge has also considered
all the documents produced by the respondents 2 and 3.
7. The learned Counsel for the petitioners submitted that the Fast Track
Court No.I, Tuticorin, has committed a grave error in exercising the revisional
power on a revision filed challenging or declining the discharge in considering
the documents produced by the respondents 2 and 3. The learned Counsel strongly
contended that under Section 239 of the Code of Criminal Procedure, at the time
of framing charges and at the time of taking cognizance, there is no power or
authority for the Courts below to take into consideration any document produced
by the accused. In other words, the discharge petition will have to be decided
based upon the materials produced by the prosecution alone and therefore, the
proceedings is liable to be set aside.
8. In support of his contention, the learned Counsel for the petitioner,
has relied upon the following decisions:
(i) Union of India v. Prafulla Kumar Samal and another [(1979) 3 Supreme
Court Cases 4].
(ii) Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil
Kumar Bhunja and others [(1979) 4 Supreme Court Cases 274].
(iii) Nemichand Jain v. Roshanlal and others [(2004) 13 Supreme Court
Cases 461].
(iv) State of Orissa v. Debendra Nath Padhi [(2005) 1 Supreme Court Cases
568].
(v) Hem Chand v. State of Jharkhand [(2008) 5 Supreme Court Cases 113].
(vi) Bholu Ram v. State of Punjab and another [(2008) 9 Supreme Court
Cases 140].
(vii) Palwinder Singh v. Balwinder Singh [AIR 2009 SUPREME COURT 887].
(viii) Indu Jain v. State of M.P. and others [AIR 2009 SUPREME COURT 976],
and prayed for allowing this petition.
9. Per contra, the learned Counsel for the respondents 2 and 3, submitted
that it is a clear case where the first respondent has taken sides by conducting
a partial, biased and tardy investigation. The learned Counsel further
submitted that the non-registration and non-disclosure of earlier complaint
coupled with the attitude of the first respondent in refusing to accompany the
respondents 2 and 3 to the hospital, not registering the earlier complaint in
spite of the directions obtained under Section 156(3) of the Code of Criminal
Procedure and not disclosing the fact of registration of the complaint on
30.05.2007 and its consequential closure on 31.05.2007 till 19.10.2007, etc.,
would clearly show that the first respondent has conducted the investigation not
only contrary to the Police Standing Orders, but in a partial manner supporting
the case of the petitioner and therefore, the proceedings are liable to be
quashed. The learned Counsel further submitted that in any case, the power
under Section 482 of the Code of Criminal Procedure can be invoked in a given
case where the injustice is manifest and in the present case where revisional
orders have been passed by the learned Fast Track Judge on consideration of the
materials available on record, the same need not be interfered with.
10. I have heard the arguments of the learned Counsel appearing for the
parties and the learned Government Advocate (Criminal Side) for the first
respondent.
11. As contended by the learned Counsel for the petitioner, at the time of
framing charges or taking cognizance, neither the trial Court nor the revisional
Court would look into the documents produced by the accused persons. What is
required is to be seen a prima facie case and the accused can produce the
documents only at the time of trial. In other words, the Code of Criminal
Procedure does not contemplate a mini trial before a full fledged trial.
12. In State of Orissa v. Debendra Nath Padhi [(2005) 1 Supreme Court
Cases 568], the Honourable Apex Court has observed as follows:
“16. All the decisions, when they hold that there can only be limited
evaluation of materials and documents on record and sifting of evidence to prima
facie find out whether sufficient ground exists or not for the purpose of
proceeding further with the trial, have so held with reference to materials and
documents produced by the prosecution and not the accused. The decisions proceed
on the basis of settled legal position that the material as produced by the
prosecution alone is to be considered and not the one produced by the accused.
The latter aspect relating to the accused though has not been specifically
stated, yet it is implicit in the decisions. It seems to have not been
specifically so stated as it was taken to be a well-settled proposition. This
aspect, however, has been adverted to in State Anti-Corruption Bureau v. P.
Suryaprakasam where considering the scope of Sections 239 and 240 of the Code it
was held that at the time of framing of charge, what the trial court is required
to, and can consider are only the police report referred to under Section 173 of
the Code and the documents sent with it. The only right the accused has at that
stage is of being heard and nothing beyond that. (emphasis supplied) The
judgment of the High Court quashing the proceedings by looking into the
documents filed by the accused in support of his claim that no case was made out
against him even before the trial had commenced was reversed by this Court. It
may be noticed here that learned counsel for the parties addressed the arguments
on the basis that the principles applicable would be same – whether the case be
under Sections 227 and 228 or under Sections 239 and 240 of the Code.
17. As opposed to the aforesaid legal position, the learned counsel
appearing for the accused contended that the procedure which deprives the
accused to seek discharge at the initial stage by filing unimpeachable and
unassailable material of sterling quality would be illegal and violative of
Article 21 of the Constitution since that would result in the accused having to
face the trial for a long number of years despite the fact that he is liable to
be discharged if granted an opportunity to produce the material and on perusal
thereof by the court. The contention is that such an interpretation of Sections
227 and 239 of the Code would run the risk of those provisions being declared
ultra vires of Articles 14 and 21 of the Constitution and to save the said
provisions from being declared ultra vires, the reasonable interpretation to be
placed thereupon is the one which gives a right, howsoever limited that right
may be, to the accused to produce unimpeachable and unassailable material to
show his innocence at the stage of framing charge.
18. We are unable to accept the aforesaid contention. The reliance on
Articles 14 and 21 is misplaced. The scheme of the Code and object with which
Section 227 was incorporated and Sections 207 and 207-A omitted have already
been noticed. Further, at the stage of framing of charge roving and fishing
inquiry is impermissible. If the contention of the accused is accepted, there
would be a mini-trial at the stage of framing of charge. That would defeat the
object of the Code. It is well settled that at the stage of framing of charge
the defence of the accused cannot be put forth. The acceptance of the contention
of the learned counsel for the accused would mean permitting the accused to
adduce his defence at the stage of framing of charge and for examination thereof
at that stage which is against the criminal jurisprudence. By way of
illustration, it may be noted that the plea of alibi taken by the accused may
have to be examined at the stage of framing of charge if the contention of the
accused is accepted despite the well-settled proposition that it is for the
accused to lead evidence at the trial to sustain such a plea. The accused would
be entitled to produce materials and documents in proof of such a plea at the
stage of framing of the charge, in case we accept the contention put forth on
behalf of the accused. That has never been the intention of the law well settled
for over one hundred years now. It is in this light that the provision about
hearing the submissions of the accused as postulated by Section 227 is to be
understood. It only means hearing the submissions of the accused on the record
of the case as filed by the prosecution and documents submitted therewith and
nothing more. The expression “hearing the submissions of the accused” cannot
mean opportunity to file material to be granted to the accused and thereby
changing the settled law. At the stage of framing of charge hearing the
submissions of the accused has to be confined to the material produced by the
police.”
13. Following the above said judgment, in Indu Jain v. State of M.P. and
others [AIR 2009 SUPREME COURT 976], the Honourable Apex Court has observed as
follows:
“20.Ms Makhija lastly referred to the three-Judge Bench decision of this
Court in State of Orissa v. Debendra Nath Padhi in which the question decided
differently in Satish Mehra v. Delhi Admn. was referred to. In Satish Mehra case
a two-Judge Bench of this Court had decided that at the stage of framing of
charge, the trial Judge was competent to look into the material produced on
behalf of defence at the time of framing of charge in order to come to a
decision as to whether it was at all necessary to frame charges on the material
produced on behalf of the prosecution as well as the defence. Answering the
reference in the negative, the three-Judge Bench overruled the view expressed in
Satish Mehra case and held that at the said stage of framing charge, the court
was only required to look into the material produced on behalf of the
prosecution in deciding whether a particular case was fit to go to trial.”
14. In Hem Chand v. State of Jharkhand [(2008) 5 Supreme Court Cases 113],
it has been observed in paragraph 9 as follows:
“9. It is beyond any doubt or dispute that at the stage of framing of
charge, the Court will not weigh the evidence. The stage for appreciating the
evidence for the purpose of arriving at a conclusion as to whether the
prosecution was able to bring home the charge against the accused or not would
arise only after all the evidence is brought on record at the trial. The
documents whereupon the appellant intended to rely were: (i) an order of
assessment passed by the Income Tax Authority and (ii) his declaration of
assets.”
15. In Palwinder Singh v. Balwinder Singh [AIR 2009 SUPREME COURT 887], it
is held as follows:
“12. Having heard learned counsel for the parties, we are of the opinion
that the High Court committed a serious error in passing the impugned judgment
insofar as it entered into the realm of appreciation of evidence at the stage of
the framing of the charges itself. The jurisdiction of the learned Sessions
Judge while exercising power under Section 227 of the Code of Criminal Procedure
is limited. Charges can be framed also on the basis of strong suspicion.
Marshalling and appreciation of evidence is not in the domain of the Court at
that point of time. This aspect of the matter has been considered by this Court
in State of Orissa v. Debendra Nath Padhi wherein it was held as under:
“23. As a result of the aforesaid discussion, in our view, clearly the law is
that at the time of framing charge or taking cognizance the accused has no right
to produce any material. Satish Mehra case holding that the trial court has
powers to consider even materials which the accused may produce at the stage of
Section 227 of the Code has not been correctly decided.”
16. A similar view has been taken by the Honourable Apex Court in Bholu
Ram v. State of Punjab and another [(2008) 9 Supreme Court Cases 140] and it is
held as follows:
“58. In our considered opinion, the Revisional Court was not justified in
entering into correctness or otherwise of the evidence at the stage of issuance
of summons to Respondent 2. Admittedly, the Judicial Magistrate had considered
a limited question whether on the basis of evidence of prosecution witnesses,
prima facie offence had been made out against Respondent 2. He, on the basis of
such evidence, was satisfied that the case was required to be gone into and
issued a summons. To us, the Revisional Court was not right in interfering with
that order. Hence, even on that ground, the order was not in accordance with
law.”
17. The above said pronouncements of the Honourable Apex Court have made
it very clear that at the time of considering the application filed to quash the
proceedings, the Court concerned shall not look into the documents produced by
the accused, but will have to see whether it is a case for discharge based upon
the materials produced by the prosecution alone.
18. However, the question to be considered in the present case on hand, is
as to whether the procedure adopted by the first respondent is impartial, fair,
just and proper or not?.
19. In order to appreciate the above said position, this Court will have
to see the procedure contemplated under the Police Standing Orders under Chapter
XXX. PSO 566, is extracted hereunder:
“PSO 566. Investigation to be impartial.
(1) Investigating officers are warned against prematurely committing
themselves to any view of the facts for, or against a person. The aim of an
investigating officer should be to find out the truth, and to achieve this
purpose, it is necessary to preserve an open mind throughout the Inquiry.
(2) Charge-sheets in cases and counter cases – In a complaint and counter
complaint obviously arising out of the same transaction the Investigating
officer should enquire into both of them and adopt one or the other of the two
courses, viz., (1) to charge the case where the accused were the aggressors or
(2) to refer both the cases if he should find them untrue. He should place
before the court a definite case which he asks it to accept. The Investigating
officer in such cases should not accept into one complaint and examine only
witnesses who support it and gave no explanation at all for the injuries caused
to the other side. It is his duty to exhibit the counter – complaint in the
court, and also to prove medical certificates of persons wounded on the opposite
side. The truth in these cases is invariably not in strict conformity with
either complaint and it is quite necessary that all the facts are placed before
the court to enable it to arrive at the truth and a just decision.
(3) If the Investigating Officer finds that the choice of either course is
difficult, viz., to charge one of the two cases or to throw out both, he should
seek the opinion of the Public Prosecutor of the district and act accordingly.
A final report should be sent in respect of the case referred as mistake of law
and the complainant or the counter – complainant as the case may be, should be
advised about the disposal by a notice in Form No.90 and to seek remedy before
the specified Magistrate, if he is aggrieved by the disposal of the case by the
Police.”
20. A perusal of the said investigation process would clearly show that
when there is a case of complaint and counter complaint, the Investigating
Officer should enquire into both the complaints and register the cases and
thereafter, investigate into the matter. Therefore, the Investigating Officer
should consider both the cases and shall not accept one complaint and examine
only the witnesses in support of the said complaint. Therefore, the bounden
duty is cast upon the Investigating Officer to register both the cases and
conduct common investigation in both the cases by examining the witnesses in
pursuance of the said complaints. Even in a case where the Investigating
Officer finds that one of the two charges will have to be thrown out, he should
seek the opinion of the Public Prosecutor and act accordingly. Thereafter, a
final report should be sent in support of the case referred as ‘mistake of
fact’.
21. An important factor to be noted in the present case is that after
registering the complaint of the respondents 2 and 3 in pursuance of the orders
of the learned Judicial Magistrate and during the pendency of the contempt
proceedings, it was closed on 31.05.2007 itself. Admittedly, neither the
respondents 2 and 3 nor their witnesses have been examined. The manner in which
the earlier complaint given by the respondents 2 and 3, has been refused to be
registered and thereafter, suppressed and closed in a hurried manner, speaks
volume of the conduct of the Investigating Officer.
22. It is, no doubt, true that this Court will have to shut its eyes on
the documents produced by the respondents 2 and 3. However, even a perusal of
the said documents would show that how much the Investigating Officer is
prejudiced and biased against the respondents 2 and 3. Most of the documents
such as the complaint given by the second respondent, its receipt, injuries
noticed by the learned Judicial Magistrate and the jail authorities at the time
of remand, accident registers are not new documents, but more of public
records. The said documents are not disputed and in fact, they must have been
produced by the prosecution itself. An Investigating Officer carries himself
with lot of responsibilities and he supposed to act fairly being a public
servant. There is absolutely no reason as to why he has suppressed the earlier
complaint and registered the subsequent complaint showing as if the respondents
2 and 3 were arrested on the next day morning wherein the complaint had been
given on the previous day itself. Even in the judgment in State of Orissa v.
Debendra Nath Padhi [(2005) 1 Supreme Court Cases 568], the Honourable Apex
Court has considered the power of this Court under Section 482 of the Code of
Criminal Procedure. The Honourable Apex Court has observed as follows:
“29. Regarding the argument of the accused having to face the trial
despite being in a position to produce material of unimpeachable character of
sterling quality, the width of the powers of the High Court under Section 482 of
the Code and Article 226 of the Constitution is unlimited whereunder in the
interests of justice the High Court can make such orders as may be necessary to
prevent abuse of the process of any court or otherwise to secure the ends of
justice within the parameters laid down in Bhajan Lal case.[1992 Supp (1) SCC
335].”
23. Therefore, in a case where a grave injustice has been committed, a
power under Section 482 of the Code of Criminal Procedure, need not be invoked
by setting aside an order in order to render substantial justice between the
parties.
24. In Krishnamoorthi and another v. State [1989 MLJ (Cri) 240], while
considering the Police Standing Orders, regarding the registration of the
complaint and counter complaint, the Division Bench of this Court has observed
as follows:
“If the Investigating Officer finds that the choice of either course is
difficult, viz., to charge one of the two cases or to throw out both, he should
seek the opinion of the Public Prosecutor of the district and act accordingly.
A final report should be sent in respect of the case referred as mistake of law
and the complainant or the counter-complainant, as the case may be, should be
advised about the disposal by a notice
in Form 96 and to seek remedy before the specified Magistrate, if he is
aggrieved by the disposal of the case by the police.”
25. A similar view was taken by the another Division Bench of this Court
in Moorthy and another v. State [2005 M.L.J (Crl.) 191], it is held as follows:
“22. The above testimony is highly artificial and the prosecution has only
made a vain attempt to show that Basker has sustained injuries in a different
transaction. Whatever it may be, the settled law is that when the counter
complaint is given by the accused for the injuries sustained by him in the
course of the same transaction at the hands of the deceased party, the
Investigation Officer has to investigate both the complaints and then only file
final report and place all the materials before the Court.
23. In the present case, the Investigation Officers, namely, P.W.17
Inspector Palanivel and P.W.18 Inspector Manavalan have only stated that they
conducted investigation in the counter case and referred the same as ‘mistake of
fact’ and they have not marked the counter complaint and the referred report in
this case.”
26. Applying the ratio of the above said two judgments to the present case
on hand, this Court is of the opinion that the order passed by the revisional
Court in Crl.R.C.No.24 of 2008 will have to be sustained.
27. The learned Counsel for the respondents 2 and 3 submitted that the
case has been foisted against the respondents 2 and 3 by misusing the position
of the petitioner’s wife who is a judicial officer. The learned Counsel for the
respondents 2 and 3 further submitted that the petitioner had a wrong
apprehension that the respondents 2 and 3 are responsible for the enquiry
conducted against the petitioner’s wife.
28. This Court is not willing to go into the said allegation made by the
learned Counsel for the respondents 2 and 3. The said contention of the
involvement of the petitioner’s wife has not been raised in the discharge
petition and moreover, the said person not being a party, the above said
contention cannot be countenanced.
27. In the result, this Criminal Original Petition is dismissed.
rsb
TO
1.The Sub Inspector of Police,
Thoothukudi Vadapagam Police Station,
Thoothukudi District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
3.The Fast Track Court No.I, Tuticorin.
4.The Judicial Magistrate, Tuticorin.