BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/11/2010 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.9548 of 2010 & Crl.O.P.(MD).No.12781 of 2010 And M.P.(MD).Nos. 1, 1 and 2 of 2010 1.T.Rajasekaran 2.A.Krishna Guru 3.K.Ganeshan 4.R.Muthuraja 5.R.Kannan 6.S.Farhad 7.K.Vijaya Kumar 8.R.Durai Pandian ... Petitioners in both Crl.O.Ps. Vs 1.The Deputy Superintendent of Police Samayanallur Division Madurai District 2.The Sub-Inspector of Police Cholavanthan Police Station Madurai District 3.N.Ramesh ... Respondents in both Crl.O.Ps. PRAYER IN CRL.O.P.(MD).No. 9548 Petition filed under Section 482 of the Code of Criminal Procedure, to call for records in C.C.No. 116 of 2010 dated 4.5.2010 pending before the learned District Munsif cum Judicial Magistrate, Vadipatti and quash the same as illegal. PRAYER IN CRL.O.P.(MD).No. 12781 Petition filed under Section 482 of the Code of Criminal Procedure, to direct the respondent No.1 to serve the referral notice to the petitioner in respect of Crime No. 50 of 2010 on the file of the respondent No.2 registered under Section 3(i)(x) of Scheduled Tribes (Prevention of Atrocities) Act, 1989 filed by the petitioner and keep the proceedings in pending in C.C.No. 116 of 2010 pending before the District Munsif Cum Judicial Magistrate, Vadipatti filed by the respondent No.1 in Crime No. 49 of 2010 under Sections 147, 294(b), 323, 506(i) of IPC in abeyance until the both the proceedings are taken together by the Judicial Magistrate, Vadipatti. ***
!For Petitioners in
both Crl.O.Ps. … Mr.T.Lajapathi Roy
^For RR 1 and 2 in
both Crl.O.Ps. … Mr.L.Murugan
Government Advocate (Crl. Side)
for R.1 and R.2
Mr.B.Pugalendhi for R.3
:COMMON ORDER
Crl.O.P(MD)No.9548 of 2010 has been filed to call for records in C.C.No.
116 of 2010 dated 4.5.2010 pending before the learned District Munsif cum
Judicial Magistrate, Vadipatti and quash the same as illegal.
2. Crl.O.P(MD)No.12781 of 2010 has been filed to direct the respondent
No.1 to serve the referral notice to the petitioner in respect of Crime No. 50
of 2010 on the file of the respondent No.2 registered under Section 3(i)(x) of
Scheduled Tribes (Prevention of Atrocities) Act, 1989 filed by the petitioner
and keep the proceedings in C.C.No. 116 of 2010 pending before the District
Munsif Cum Judicial Magistrate, Vadipatti filed by the respondent No.1 in Crime
No. 49 of 2010 under Sections 147, 294(b), 323, 506(i) of IPC in abeyance until
both the proceedings are taken together by the Judicial Magistrate, Vadipatti.
3. Concisely and precisely, the relevant facts absolutely necessary for
the disposal of these petitions, would run thus:
The police registered the case in Crime No.49 of 2010 for the offence
under Sections 147, 341, 323, 294(B) and 506(i) I.P.C., consequent upon the
complaint lodged by one Ramesh, the Junior Officer of the Fenner Conveyer
Belting Division Private Ltd., to the effect that some employees of Fenner
(India) Labour Union committed rioting and also uttered filthy words. It appears
that the police conducted the investigation into the matter and laid the charge
sheet in C.C.No. 116 of 2010 before learned District Munsif Cum Judicial
Magistrate, Vadipatti and the same is pending as the charges have not yet been
framed.
4. Whereas the learned Government Advocate (Criminal Side) would submit
that relating to the Crime No.50 of 2010, the Deputy Superintendent of Police
dropped action after serving notice to the de-facto complainant.
5. Crl.O.P.(MD).No.9548 of 2010 has been filed by the accused in
C.C.No.116 of 2010 (Crime No.49 of 2010) for getting the charge sheet quashed on
the ground that the case itself is fraught with falsity and it is not worthy of
being processed as per law.
6. Crl.O.P.(MD).No.12781 of 2010 has been filed for the purpose of getting
a direction to get served the referral notice to the petitioner in respect of
Crime No.50 of 2010 and also to get the connected case in C.C.No. 116 of 2010
kept in abeyance till the case in Crime No.49 of 2010 is processed finally.
7. Heard both sides.
8. The gist and kernel of the arguments as put forth on the side of the
learned counsel for the petitioners in both the petitions would be to the effect
that both the cases are inter-linked and interwoven and it cannot be viewed
separately; however, the police did choose to treat them separately and went to
the extent of filing the charge sheet in Crime No.49 of 2010; and the police
simply dropped the action unjustifiably without even giving the referral notice
in Crime No. 50 of 2010.
9. Whereas the learned counsel for the de-facto complainant in C.C.No.116
of 2010 (Crime No.49 of 2010) would put forth and set forth his argument which
could be pithily and precisely set out thus:
The accused in C.C.No.116 of 2010 cannot try to get the matter adjourned
abnormally and ad infinitum and as though they allegedly got aggrieved by the
referral of the case by the Deputy Superintendent of Police in Crime No.50 of
2010. According to the learned counsel for the de-facto complainant in
C.C.No.116 of 2010, the said case in Crime No.50 of 2010 invoking the provisions
of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, is having
nothing to do with the case in C.C.No.116 of 2010 wherein the de-facto
complainant is neither an accused in Crime No. 50 of 2010 nor a witness. In such
a case, the petitioner cannot try to stall the proceedings and the learned
District Cum Judicial Magistrate, should be allowed to proceed with the case in
C.C.No. 116 of 2010.
10. The fact remains that the occurrences which are the subject matters of
both the crime numbers happened on one and the same day i.e., on 16.02.2010;
however, there is allegedly half-an-hour gap between the time of occurrences.
Moreover, in matters of this nature, the said half-an-hour difference shown
between the occurrences covered under the respective two F.I.Rs, could be taken
as material or immaterial, depending upon various factors and there are decided
cases also in that regard. So, it is the duty of the learned Magistrate to look
into those aspects thoroughly and arrive at a conclusion.
11. Now, the case in Crime No.50 of 2010 is alleged to have been referred
as mistake of fact.
12. The learned counsel for the de-facto complainant in Crime No.50 of
2010 would submit that no referral notice was served on his client.
13. Taking into consideration the relevant factors set out supra, I am of
the considered view that one more opportunity should be given to the de-facto
complainant, namely, T.Rajasekaran in Crime No.50 of 2010 to file protest
petition before the Magistrate concerned within a period of one week from the
date of receipt of a copy of this order; whereupon the learned Magistrate is
expected to take up the protest petition and consider the same cutting across
limitation point. The learned Magistrate is enjoined to consider specifically
inter alia the following:
(i) Whether unjustifiably the Deputy Superintendent of Police referred the
case in Crime No.50 of 2010 as mistake of fact;
(ii) while doing so, the learned Magistrate shall keep in mind the
following decisions:
(a) Abhinandan Jha v. Dinesh Mishra reported in AIR 1968 SC 117.
(b) H.S.Bains, v. The State (Union Territory of Chandigarh), reported in
AIR 1980 SUPREME COURT 1883.
(c) TULA RAM V. KISHORE SINGH, reported in (1977) 4 SCC 459.
(d) RAM LAL NARANG V. STATE (DELHI ADMINISTRATION) reported in (1979) 2
SUPREME COURT CASES 322.
(e) Rameshbhai Pandurao Hedau v. State of Gujarat reported in (2010) 2
Supreme Court Cases (Cri) 801.
(f) Kunga Nima Lepcha and others v. State of Sikkim and others reported in
(2010) 2 Supreme Court Cases (Cri) 878.
(g) Rubabbuddin Sheikh v. State of Gujarat and others reported in (2010) 2
Supreme Court Cases (Cri) 1006.
(iii) While considering so, the Magistrate should also see as to whether
there is any nexus between C.C.No.116 of 2010 (Crime No.49 of 2010) and the case
in Cr.No.50 of 2010 and if he finds that both the incidents are different, then
without any further loss of time, he has to proceed with the case in C.C.No. 116
of 2010. But on the other hand, if he considers that the case in C.C.No.116 of
2010 (Crime No.49 of 2010) and the case in Cr.No.50 of 2010 are having close
nexus, even though they did not occur as part of the same transaction, then he
should refer to the following decisions:
(a) State of M.P v. Mishrilal reported in 2003 Supreme Court Cases (Cri)
1829.
(b)Sudhir v. State of Madhya Pradesh reported in 2001 CRL. L. J. 1072.
(c) Nathilal and others v. State of U.P. And another reported in 1990-
Supreme Court Cases (Crl) 638. An excerpt from it, would run thus:
“We think that the fair procedure to adopt in a matter like the present
where there are cross cases, is to direct that the same learned Judge must try
both the cross cases one after the other. After the recording of evidence in
one case is completed, he must hear the arguments but he must reserve the
judgment. Thereafter he must proceed to hear the cross case and after recording
all the evidence he must hear the arguments but reserve the judgment in that
case. The same learned Judge must thereafter dispose of the matters by two
separate judgments. In deciding each of the cases, he can rely only on the
evidence recorded in that particular case. The evidence recorded in the cross
case cannot be looked into. Nor can the judge be influenced by whatever is
argued in the cross case. Each case must be decided on the basis of the
evidence which has been placed on record in that particular case without being
influenced in any manner by the evidence or arguments urged in the cross case.
But both the judgments must be pronounced by the same learned Judge one after
the other”
(iv) On the other hand, if the Magistrate feels that both the cases are
integral part of one and the same incident, then it is his duty to find out as
to who is the aggressor and one case has to be dropped and the other has to be
processed further. As such, it is the duty of the Magistrate without any bias or
prejudice to apply his mind to the facts and circumstances involved in
C.C.No.116 of 2010 (Crime No.49 of 2010) and the case in Crime No.50 of 2010 and
process the matters in the light of the above observations made by this Court
within a period of one month from the date of receipt of a copy of this order.
14. In the result, both the Criminal Original Petitions are disposed of.
Consequently, the connected Miscellaneous Petitions are closed.
vsg (+rsb)
To
1. The Deputy Superintendent of Police
Samayanallur Division
Madurai District
2. The Sub-Inspector of Police
Cholavanthan Police Station
Madurai District
3. The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai