BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/07/2010 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.RC.(MD)No.364 of 2010 S.Ramachandran .. Petitioner vs 1.M.Chitra 2.N.Dharmaraj 3.N.Natarajan 4.N.Poongathai 5.N.Sangeetha 6.A.Noorjahan 7.R.Pamdiammal .. Respondents PRAYER This Criminal Revision is filed under Section 397 r/w 401 of the Code of Criminal Procedure, to set aside the order on the file of the learned Judicial Magistrate, Paramakudi, Ramanathapuram District, in Cr.M.P.No.1677 of 2009 dated 05.05.2009 and remand the matter back to the said Court. !For Petitioner ... Mr.T.Lajapathy Roy. :ORDER
The petitioner is the complainant before the Judicial Magistrate,
Paramakudi. He has filed a private complaint under Section 200 of Cr.P.C. and
the sworn statement was also recorded by the Judicial Magistrate. Afterwards,
the Magistrate’s Court on 05.05.2009 returned the complaint pointing out certain
defects to be rectified and be re-presented. There is no time limit fixed for
representation. Presently, the revision has been filed challenging the
procedure adopted by the Judicial Magistrate in returning the complaint.
2. Mr.T.Lajapathy Roy, learned counsel for the petitioner would submit
that after the private complaint is presented before the Court, the Judicial
Magistrate has no power to return the same even if contains any defects, he has
to proceed in accordance with law. In support of his contention, he placed much
reliance upon a decision of a Division Bench of this Court reported in 2000(1)
CTC 225, A. Vinayagam and 3 others vs. Dr.Subash Chandran and another, wherein
it has been held as under :-
“15.Law does not know or provide any other mode of dealing with the
complaint, much less returning the complaint. It is not possible for a
Magistrate to return the complaint for the so called defects and if the defects
are there in the complaint, the complainant has to suffer. There is no warrant
in the Criminal Procedure Code or the Criminal Rules of Practice, empowering the
Magistrate to return then complaint just because he thinks that there are any
defects. In this behalf, the observation by both the learned Judges that the
Magistrate has a power to return the complaint because he has a power to accept
is clearly incorrect. In the first place, the Magistrate does not have a
“Power” to accept the complaint. That is not the power of the Court. That is
the “duty” on the part of the Court in contradistinction to its “Powers”. Again
unless there is a specific provision in the Code or the Rules, the Magistrate
cannot find out his own procedure by returning the complaint as it is. In fact,
when the complainant presents the case to the Magistrate that is not the stage
of examining the defects and it is not for the Magistrate to examine the so
called defects in the complaint. All that the Magistrate has to do is to
consider the same by ordering the examination of complainant and / or as the
case may be, his witnesses. It was strenuously suggested that if there are some
formal defects like the age is not stated or the name of the father of the
accused is not stated, the complainant should get a fair chance to correct the
defects. We only observe that it is for the complainant to produce a defectless
complaint, if because of such defects, such as non-mentioning of the age and
names of father, etc. the identity of the accused persons becomes suspicious or
is not established properly then, the complainant must suffer for his defective
complaint, but, under no circumstances, could the Magistrate return the
complaint particularly after the Court-seal had been put on that complaint and
the Court-fee stamps have been cancelled then, as rightly found by Janarthanam,
J., the complaint becomes the Court property.”
3. The said Division Bench decision has been followed by this Court in the
subsequent decisions which are enlisted below:
i) (2008) 3 MLJ (Crl) 1334, Casim Fareed Jaffardeen v. Mohd. Ansari.
(ii) (2010) 1 MLJ (Crl) 753, R.Manoharan v. P.Naaz.
(iii) Order of this Court dated 26.10.2009, S.Shajahan v. M.Shajahan and 3
others in Crl.R.C.(MD) No.944 of 2008 of Madurai Bench of Madras High Court.
4. As per the above said Division Bench decision, wherein earlier
decisions of this Court reported in 1995 (2) LW (Crl) 405 (T.Vanamalai v.
T.D.Sundara Varadhan) and 1995 (1) LW (Crl) 300 (D.Ramamoorthy v. K.J.Duraisamy)
have been referred to, the law has been settled in this regard that the
complainant has to face consequences of presenting defective complaint and the
Judicial Magistrate has no power to return the same after the Court fee stamps
have been cancelled, excepting on non payment of proper Court fee or failure to
enclose necessary copies. In view of the decision of the Division Bench of this
Court, there shall be a direction to the learned Judicial Magistrate to take the
complaint on file and to proceed in accordance with law and the procedure
formulated in the Division Bench decision of this Court supra.
5. In the result, the Criminal Revision is allowed directing the Judicial
Magistrate, Paramakudi, to take the private complaint on file on re-presentation
and to proceed with the same in accordance with law.
SKN/srm
To
The Judicial Magistrate,
Paramakudi,
Ramanathapuram District.