BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01/10/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.10194 of 2007, Crl.O.P.(MD).No.9735 of 2007 and M.P(MD)Nos.1 and 2 of 2007 K.K.Ramesh ... Petitioner in both the petitions Vs The State represented by The Inspector of Police, C.B.C.I.D, Madurai City. ... Respondent in both the petitions Prayer in Crl.O.P(MD)No.10194 of 2007: Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records pertaining to the order dated 05.09.2007 passed in Cr.R.P.No.44 of 2007 on the file of the learned Principal District and Sessions Judge, Madurai, confirming the order dated 22.05.2007 passed in Cr.M.P.No.5802 of 2006 on the file of the learned Judicial Magistrate No.I, Madurai and set aside the same. Prayer in Crl.O.P(MD)No.9735 of 2007: Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records pertaining to the order dated 05.09.2007 passed in Cr.R.P.No.45 of 2007 on the file of the learned Principal District and Sessions Judge, Madurai, confirming the order dated 22.05.2007 passed in Cr.M.P.No.5282 of 2006 on the file of the learned Judicial Magistrate No.I, Madurai and set aside the same. !For Petitioner ... Mr.R.Ramachandran ^For Respondents ... Mr.Siva.Ayyappan Government Advocate (Crl. Side) :ORDER
Crl.O.P(MD)No.10194 of 2007 is focussed to call for the records pertaining
to the order dated 05.09.2007 passed in Cr.R.P.No.44 of 2007 on the file of the
learned Principal District and Sessions Judge, Madurai, confirming the order
dated 22.05.2007 passed in Cr.M.P.No.5802 of 2006 on the file of the learned
Judicial Magistrate No.I, Madurai and set aside the same.
2. Crl.O.P(MD)No.9735 of 2007 is focussed to call for the records
pertaining to the order dated 05.09.2007 passed in Cr.R.P.No.45 of 2007 on the
file of the learned Principal District and Sessions Judge, Madurai, confirming
the order dated 22.05.2007 passed in Cr.M.P.No.5282 of 2006 on the file of the
learned Judicial Magistrate No.I, Madurai and set aside the same.
3. A re’sume’ of facts absolutely necessary and germane for the disposal
of these petitions would run thus:
Initially, the police registered the case in Cr.No.833 of 2003 under
Sections 341, 323, 354 and 506(2) I.P.C. Subsequently, it appears, at the
instance of the accused, who is the petitioner herein, the learned Sessions
Judge directed investigation into the crime by C.B.C.I.D which after
investigation, laid the police report as against the accused for the offence
punishable under Sections 341, 324, 354, 506(1), 420, 468, 471 I.P.C and Section
4 of Women Harassment (Prohibition) Act. Thereupon, the learned Magistrate took
it on file as C.C.No.236 of 2005. Whereupon, the petitioner filed
Cr.M.P.No.5282 of 2006 for discharge. However, the learned Magistrate dismissed
the petition and framed charges for the offences punishable under Sections 341,
324, 354, 506(1), 420, 468, 471 I.P.C and Section 4 of Women Harassment
(Prohibition) Act. It also appears, one other Cr.M.P.No.5802 of 2006 was filed
under Section 91 Cr.P.C even before framing of charge for summoning certain
documents and that was also dismissed.
4. Being aggrieved by and dissatisfied with, those orders, the petitioner
filed these two Criminal Original Petitions, so to say, one as against the order
of dismissal of the discharge petition and another as against the dismissal of
the petition under Section 91 Cr.P.C, on the main grounds inter alia thus:
The trial Court without considering the factual as well as the legal
issues, passed orders dismissing the petition. The trial Court also failed to
consider the enmity of the defacto complainant as against the petitioner and
also the ill-will of the police towards him. It is also the grievance of the
petitioner that he being a social welfare worker and Human Rights activist, the
police with the help of Vatchala, the defacto complainant, engineered this false
case; and that without considering the hand-writing expert’s opinion, which is
in favour of the accused, the Court has gone to the extent of framing charges
for the offence of forgery also.
5. Heard both sides.
6. The learned Counsel for the petitioner would reiterate the grounds as
found set out supra.
7. The learned Government Advocate (Criminal Side) would counter such
arguments that all the allegations/grounds set out by the petitioner could be
considered only at the time of trial and this Court while exercising the power
under Section 482 Cr.P.C cannot look into all these aspects.
8. At the outset itself, I would like to observe that this Court while
exercising the power under Section 482 Cr.P.C cannot ponder over the factual
issues based on bare allegations. However, if there are issues based on pure
legal question of law involved, certainly it would be looked into.
9. The nitty-gritty, the gist and kernel of the complaint of the defacto
complainant, Vatchala is to the effect that the petitioner herein used to move
with the defacto complainant as family friend and well-wisher; he taking undue
advantage of such close relationship, intended to grab the money from them and
under the pretext of hushing up the complaints as against Vatchala and her
family, he obtained amounts as ‘hush money’ payable to the police and other
authorities; as such, the petitioner cheated her to the tune of Rs.10,000/-
(Rupees ten thousand only) and the petitioner also obtained Rs.2,000/- (Rupees
two thousand only) from her under the pretext of making arrangements for her to
purchase a land etc. According to the police, through one Sangili, the
petitioner on one occasion, gave an alleged police summon addressed to Vatchala
as though the police wants her to appear in connection with some petition
forwarded to the police from the Chief Minister’s Cell; however, that alleged
police summons was sent to the hand-writing experts, for opinion and they
arrived at the conclusion that they cannot give a conclusive opinion that the
impugned signature or hand-writing, is that of the petitioner.
10. Placing reliance on such opinion of experts, the learned Counsel for
the petitioner would strongly argue and convincingly too that in view of such
hand-writing expert’s opinion, the framing of charge under Section 468 I.P.C is
totally untenable.
11. The learned Government Advocate (Criminal Side) would advance his
argument to the effect that only during trial alone, all these factual
intricacies could be decided and not at this stage.
12. I am of the considered opinion that once the hand-writing expert’s
opinion is in favour of the accused and it is not raising the accusative finger
as against the accused, certainly the learned Magistrate was not justified in
framing charge for the offence of forgery as against the accused and
accordingly, the charge under Section 468 I.P.C has to be quashed.
13. Relating to the charge under Section 420 I.P.C, the learned Counsel
for the petitioner would vehemently argue that merely based on statement of the
defacto complainant, the charge under Section 420 I.P.C should not have been
framed. Relating to this objection is concerned, I would observe that simply
because, it is based on oral evidence, this Court cannot interfere while
exercising the power under Section 482 Cr.P.C. To believe the defacto
complainant or not, is a question of fact and after due cross-examination alone,
the trial Court would be able to come to a conclusion. In the F.I.R, the
defacto complainant narrated about the alleged cheating committed by the accused
and in such a case, this Court cannot quash those charges. The charge relating
to causing hurt etc, the police relies on the accident register and a copy of it
would show that she sustained simple injuries and it is also a matter of
evidence which should be considered by the trial Court.
14. The other offences of criminal intimidation, outraging modesty and
harassment to women, are all based on oral evidence and this Court cannot
interfere with it.
15. With the above observation, Crl.O.P(MD)No.10194 of 2007 is partly
allowed, setting aside the charge under Section 468 I.P.C only. Relating to
other charges framed, it is for the trial Court to proceed with the trial as
against the accused as per law. Consequently, connected M.P(MD)No.1 of 2007 is
closed.
16. Relating to Crl.O.P.(MD)No.9735 of 2007, I am of the considered
opinion that the petitioner was not justified in filing that application even
before framing of charges. At that stage, it is was the duty of the prosecution
to place the records and it was not the duty of the accused to place the
evidence to prove his innocence. The learned Magistrate also in his order, gave
a finding that no reason at all was found stated in the petition. However,
while arguing the case before this Court, the learned Counsel for the petitioner
would submit that for the purpose of proving that P.W.1 is not a witness of
truth and that she already committed misdeeds, he wanted those documents to be
summoned.
17. It is a trite proposition of law that at the time of trial, the
accused should be given due opportunity to cross-examine the witnesses, for
which the documents required by the petitioner/accused should be made available
before the Court and then only, during cross-examination, the prosecution
witness could be confronted with those documents. Without sticking on to
technicalities, the accused should certainly be given an opportunity to get
summoned the relevant documents provided those documents are having connection
with the witness. Accordingly, the trial Judge shall see to it whether those
documents are in any way connected with the prosecution witness. If that be
so, without any further probe, let summons be issued to the persons concerned to
produce the documents before commencement of the trial itself, so that the
accused would have the opportunity of cross-examining the witness with reference
to those documents.
18. With the above observation, Crl.O.P.(MD)No.9735 of 2007 is disposed
of. Consequently, connected M.P(MD)No.1 of 2007 is closed.
rsb
To
1.The Inspector of Police,
C.B.C.I.D,
Madurai City.
2.The Principal District and Sessions Judge, Madurai.
3.The Judicial Magistrate No.I, Madurai.
4.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.