BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/08/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition(MD) No.2328 of 2010 and M.P.(MD) Nos.1 to 3 of 2010 C.Pitchaiah .. Petitioner vs State represented by 1.The Inspector of Police, Taluk Police Station, Timmarajapuram, Tirunelveli District Crime No.148/09 2.Madasamy .. Respondents Prayer Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the records and quash the charge sheet in C.C.No.194 of 2009 on the file of the Judicial Magistrate No.III, Madurai. !For Petitioner ... Mr.B.Thangamari ^For Respondent ... Mr.R.M.Anbunithi, Govt. Advocate (Crl. Side) for RR1 Mr.Ananth V. Rajesh for RR2 :ORDER
The petitioner approaches this Court with a prayer to call for the records
and quash the charge sheet in C.C.No.194 of 2009 on the file of the Judicial
Magistrate No.III, Madurai.
2.The learned counsel appearing for the petitioner would submit that the
petitioner is arrayed as an accused in C.C.No.194 of 2009 on the file of the
Judicial Magistrate No.III, Tirunelveli for the offence under Sections 294(b)
and 326 I.P.C.; originally the case has been registered for the offence under
Section 294(b) and 324 I.P.C., and on investigation, charge sheet has been filed
under Sections 294(B) and 326 I.P.C., the respondent has wantonly suppressed the
complaint dated 13.07.2009, whereas, the defacto complainant himself has
admitted that the place of occurrence is a private place and also admitted the
pendency of the civil dispute over the place of occurrence with the
petitioner/accused and hence, the ingredients of Section 294(b) has not been
made out.
3. He would further submit that at the time, when the victim has
admitted in the hospital, she has stated before the doctor that she was
assaulted by known persons with stick at 6.00 a.m. on 13.07.2009, and the doctor
noted grievous injuries in right thigh which is not a vital part to cause death
and hence, the ingredients of Section 326 I.P.C. is not made out and hence he
prayed for the allowing of the application.
4.The learned counsel appearing for the 2nd respondent would submit that
the investigation was over, charge sheet has also been filed; totally there are
9 witnesses, out of which 4 witnesses have been examined and 5 witnesses to
examined and hence, he prayed for the dismissal of the application.
5.The learned Government Advocate (criminal side) would endorse the
argument of the learned counsel appearing for the 2nd respondent.
6.Considering the rival submissions made on either side, admittedly, on
the basis of the complaint given by the defacto complainant, a case has been
registered in crime No.148 of 2009 for the offence under Sections 294(b) and 324
I.P.C and subsequently, after investigation, the respondent police filed the
charge sheet for the offence under Sections 294(b) and 326 I.P.C., which was
taken on file in C.C.No.194 of 2009. In the charge sheet, there are 9 witnesses
have been mentioned, out of which, 4 witnesses have already been examined and 5
witnesses to be examined, who are the attestors of the observation mahazer,
radiologist, doctor and the investigating officer. The doctor has also stated
that the defacto complainant has sustained 4 injuries viz., (i) not able to move
right thigh (ii) Abrasion in right palm 1 cm x 1 cm (iii) Abrasion in left
shoulder 1 cm x 1 cm and (iv) Abrasion in left palm 1 cm x 1 cm and he has
opined that the injury No.1 is the grievous in nature and other 3 injuries are
simple in nature.
7. The learned counsel appearing for the petitioner would rely upon the
decision reported in Irulayee and Others Vs. State rep. by Sub-Inspector of
Police, All Women Police Station, Virudhunagar District and submit that in order
to bring the offence under Section 294(b) of the Indian Penal Code, 1860 the
occurrence must have taken place in a public place or near public place and when
the charge under Section 294(b) is not made out then the offence of criminal
trespass alone cannot be maintained, in the absence of any of the offence along
with trespass to make out as a criminal house trespass. But, here, admittedly,
the defacto complainant sustained grievous injury and the charge sheet has also
been filed under Sections 294(b) and 326 I.P.C.
8. At this juncture, it is appropriate to consider the decision in Amar
Chand V. Shanti Bose AIR 1973 SC 799, wherein, this Apex Court has been held as
follows”
“Where the accused moved the High Court at the time when the trial was
almost coming to a close and what remained to be done was the examination of two
prosecution and one Court witnesses and the High Court quashed the charge and
the entire proceedings on the grounds that the complainant suppressed material
facts and that the evidence on record did not establish the alleged offence, the
order was liable to be set aside. The proper course at that stage to be adopted
by the High Court was to allow the proceedings to go on and to come to its
logical conclusion, one way or the other, and decline to interfere with those
proceedings. The questions whether there was suppression and whether the
evidence established the alleged offence were matters to be considered by the
trial Court after an appraisal of the entire evidence.
A perusal of the charge sheet would show that there are totally 9 persons were
cited as witnesses, out of which 4 witnesses have already been examined and 5
witnesses have to be examined. Since, the present case is in a part heard stage,
this court cannot exercise its power under Section 482 Cr.P.C to quash the
proceeding at this stage. Furthermore, all the points raised by the learned
counsel appearing for the petitioner are only questions of fact that to be
decided at the time of trial by the Trial Judge and it is open to the
petitioners to raise all the points at the time of trial.
9.In such circumstances, I am of the opinion that the above citation is
not applicable to the facts of this case and the arguments advanced by the
learned counsel appearing for the petitioner does not merits acceptance and the
criminal original petition deserves to be dismissed.
10.Accordingly, this criminal original petition is dismissed. Considering
the age of the petitioner, his personal appearance is dispensed with till the
examination of the official witnesses and he is directed to appear before the
Court for 313 Cr.P.C questioning and pronouncing the judgment. The Judicial
Magistrate No.III, Tirunelveli is also directed to conclude the trial within a
period of one month from the date of receipt of a copy of this order.
arul
To
1.The Inspector of Police,
Taluk Police Station,
Timmarajapuram,
Tirunelveli District
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.