Arjunan vs The State Of Tamilnadu on 2 August, 2010

Madras High Court
Arjunan vs The State Of Tamilnadu on 2 August, 2010
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 02/08/2010

CORAM
THE HONOURABLE MS.JUSTICE R.MALA

Criminal Original Petition(MD) No.8292 of 2010


Arjunan					.. Petitioner

vs

The State of Tamilnadu
Rep. by the Inspector of Police,
Karungal Police Station,
Kanyakumari District.			.. Respondent


Prayer

Criminal Original Petition filed under Section 482 of Cr.P.C. to allow
the criminal original petition and set aside the order passed in Copy
Application No.4195 of 2010 on the file of the Principal District Munsif cum
Judicial Magistrate, Eraniel dated 30.06.2010.

!For petitioner	  ... Mr.C.K.M.Appaji
^For Respondents  ... Mr.S.Muthu Venkatesan,
		      G.A.,(Crl.Side)


:ORDER

The petitioner approaches this Court with a prayer to to allow the
criminal original petition and set aside the order passed in Copy Application
No.4195 of 2010 on the file of the Principal District Munsif cum Judicial
Magistrate, Eraniel dated 30.06.2010.

2. The learned counsel appearing for the petitioner would submit that the
petitioner is running a Homeopathy Medical stores in the name and style of
S.A.Medical having licence TNK/37/20C and TNK/32/20D and on 17.06.2010, the
respondent police preferred an application before the Principal District Munsif
cum Judicial Magistrate, Eraniel, seeking permission to search the petitioner’s
shop alleging that the petitioner has sold illegal medicine and the learned
Judicial Magistrate has also granted permission to search the premises of the
petitioner. When the petitioner came to know about the said search order, he
filed a copy application in C.A.No.4195 of 2010 to furnish the copy of the
search order dated 17.06.2010, the learned Judicial Magistrate returned the same
with the following endorsement:

“As per the circular issued by the Hon’ble High Court in ROC proceedings
No.1823/A/2010 F1 P.Dis.No.50/2010 dated 20.04.2010 with reference to the (1)
orders of the Hon’ble High Court in Crl.O.P.No.5317 of 2010 against crime No.149
of 2010 dated 17.03.2010 (2) orders of the High Court in 1988 L.W.(Crl.) 503
Selvanathan alias Raghavan V. State by Inspector of Police, certified copies are
not to be given during investigation.”

Hence, the petitioner has come forward with the present application to furnish
the copy of the search order dated 17.06.2010 passed by the learned Judicial
Magistrate. To substantiate his case, the learned counsel appearing for the
petitioner relied upon the decision in 2009(1) MWN (Cr.) 298 (Rev.Samuel
D.Stephens and others V. Pastor A.Samuel Ramasamy
) and submit that as per
Section 363(5) of Cr.P.C. Any person affected by order passed by Court, on
Application and payment of charges, entitled to copy of such order or of any
deposition or other part of record and thus, he prayed for the allowing of the
petition.

3.The learned Government Advocate (criminal side) would submit that as per
the circular of this Court, the petitioner is not entitled to get the copy of
search order and he prayed for the dismissal of the application.

4.Heard the learned counsel appearing for the petitioner as well as the
learned Government Advocate (Criminal side) and perused the entire materials
available on record.

5.The petitioner is the owner of S.A.Medical shop and the respondent has
suspected that the petitioner is selling illegal contraband medicines, he filed
a search petition before the learned Judicial Magistrate for searching the
premises of the petitioner and the learned Judicial Magistrate has also passed
the search order dated 17.06.2010 and hence, the petitioner has filed a copy
application in C.A.No.4195 of 2010 to furnish the copy of the said search order
dated 17.06.2010, which was returned stating that as per the circular of this
Court, the petitioner is not entitled for the same.

6. The ROC proceedings of this Court No.1823/A/2010 F1 P.Dis.No.50/2010
dated 20.04.2010 has been issued only on the basis of the judgment rendered in
1988 L.W.(Crl.) 503 Selvanathan alias Raghavan V. State by Inspector of Police.
At this juncture, it is appropriate to consider the decision relied upon by the
learned counsel appearing for the petitioner reported in 2009(1) MWN (Cr.) 298
(Rev.Samuel D.Stephens and others V. Pastor A.Samuel Ramasamy), wherein, the
learned Judge has also considered the above said decision in 1988 L.W.(Crl.) 503
Selvanathan alias Raghavan V. State by Inspector of Police and ordered for
furnishing the copy of documents. While perusing the judgment cited in the
above said R.O.C. in Selvanathan alias Raghavan V. State by Inspector of Police
reported in 1988 L.W.(Crl.) 503, wherein in paragraph No.64, it has been held as
follows:

“A careful analysis of these provisions shows that the affidavit of the
police officer demanding police custody of the accused is based on any
information received by him during the course of the investigation, which
information needs further probe. The Magistrate before ordering police custody
has to satisfy himself not only by perusing the contents of the affidavit, but
also the entries in the case diary on the basis of which the affidavits are to
be sworn to by the police officers. Hence the affidavit drawn in accordance
with Rule 76 of the Criminal rules of Practice without any extraneous material,
cannot be said to be a ‘record’ within the meaning of S.363(5) of the Code
before the stage of passing any order thereon. So, till an order is passed by
the Magistrate, there is no right whatsoever for the accused to get a copy of
the affidavit. But, once an order is passed on the basis of the affidavit filed
by the police officer the said affidavit becomes a part of the record. It may
be pointed out in this connection that there is no specific legal embargo under
S.172(3) of the Code disentitling the accused to get a copy of such affidavit
which does not form part of the case diary. Needless to say that the police
officer swearing to such affidavit should be extra cautious in drafting the
affidavit with the particulars only necessary for that purpose. In view of this
legal position, we hold that after an order is passed by the Magistrate on the
basis of the said affidavit the accused will be entitled to get a copy of the
same as well as the order passed thereon, on application and on payment of the
prescribed charges.”

7. Hence, as per the said decision, the petitioner is entitled the copy
of search order passed by the learned Judicial Magistrate. Furthermore, it was
followed by the decision reported in 2009(1) MWN (Cr.) 298 (Rev.Samuel
D.Stephens and others V. Pastor A.Samuel Ramasamy
), wherein, in paragraph No.20,
it has been held as follows:

“Similarly, in a Criminal case taken cognizance on the basis of the
Private Complaint also if the allegations contained in the Complaint and the
documents accompanied with the Complaint do not accompanied with the Complaint
do not prima facie reveal the commission of any offence and the ingredients of
the offence are not made out, it is always open to the accused to approach the
High Court under Section 482, Cr.P.C. seeking for quashing of the proceedings.
For taking recourse under Section 482 Cr.P.C. it is necessary for the accused to
produce before the Court a copy of the Complaint as well as the documents filed
along with the Complaint. Since before taking cognizance, the learned Judicial
Magistrate is bound to apply his judicial mind not only to the allegations
contained in the Complaint but also to the documents accompanying the same and
an order taking cognizance is a judicial order and as such the accused is
entitled to challenge the cognizance taken in the case. As per Section 363(5)
Cr.P.C., save as otherwise provided in sub-section (2) any person affected by an
order passed by the Court on an Application made in this behalf and on payment
of the prescribed charges be given a copy of such order or of any deposition or
other part of the record. If the question is considered in the light of Section
363(5)
Cr.P.C., it could be held that since, as pointed out above, an order
taking cognizance is a judicial order, Section 363(5) is attracted and on that
ground also the accused is entitled to get a copy of the part of the record of a
Criminal case to enable him to seek appropriate remedy before the higher forum.
In my considered view, Rule 339 of the Criminal Rules of Practice is in
consonance with the provisions contained in Section 363(5) , Cr.P.C. It is also
to be pointed out that by furnishing of certified copies of the documents filed
along with the Private Complaint, no prejudice whatsoever is going to be caused
to the complainant, whereas, if the request of the accused is rejected, it will
definitely prejudice the right of the accused in seeking appropriate legal
remedy before the higher Courts.”

8.It is appropriate to consider the Section 74 of the Indian Evidence Act,
which reads as follows:

“74.Public documents. – The following documents are public documents:-
(1)documents forming the acts, or records of the acts-

(i) of the Sovereign authority,

(ii) of the bodies and tribunals, and

(iii) of public officers, legislative,
judicial and executive, of any part of
India or of the Commonwealth or of a foreign
country,

(2)Public records kept in any State of private documents.

As per the above said provision and as per the dictum laid down in both the
above said decisions, since the order passed by the learned Judicial Magistrate
is a public document, the petitioner is entitled to get the order copy.

R.MALA,J.

Arul

9. Considering the same, I am of the opinion, the petitioner is entitled
to get the copy of the search order passed by the learned Judicial Magistrate
and the petition is liable to be allowed.

10. Accordingly, this criminal original petition is allowed and the
learned Judicial Magistrate, Eraniel is directed to entertain the copy
application filed by the petitioner and furnish the copy of the search order
dated 17.06.2010 after following due process of law.

arul

To

1.The Inspector of Police,
Karungal Police Station,
Kanyakumari District.

2.The Judicial Magistrate,
Eraniel.

3.Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

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