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Baskaran v. State by: - Crl.R.C.No. 1556 of 2001 [2002] RD-TN 212 (1 April 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 01/04/2002

Coram:

THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM Crl.R.C.No. 1556 of 2001

and

Crl.M.P.No.8163 of 2001

1. Baskaran

2. G.B.Mathan

3. Chenniammal .. Petitioners Vs.

State by:

The Sub Inspector of Police,

Emerald Police Station,

Nilgiris District. .. Respondent Criminal Revision Case against the Order dated 25.9.2001 in Crl.M.P. No.2021 of 2001 in P.R.C.No.7 of 2000 on the file of the Judicial Magistrate, Uthagamandalam.

For Petitioners : Mr. P.Jagadeeswaran

For Respondent : Mr. E.Raja, Addl. P.P.

:ORDER



The petitioners were originally charge sheeted for the offences under Sections 448, 323 and 326 read with 109 I.P.C. After framing charges for the said offences in C.C.No.81 of 1998 on the file of the Judicial Magistrate, Udhagamandalam, the respondent police filed amended charge sheet for including the offence under Section 307 I.P.C. Accordingly, the said charge sheet was entertained and the Calendar Case in C.C.No.81 of 1998 was converted as P.R.C.No.7 of 2000 in order to commit the accused to Sessions, as Section 307 is triable by the Sessions Court. At that stage, the petitioners filed an application under Section 239 Cr.P.C. for discharge. The Committal Court on considering the said petition and the Submissions from both parties dismissed the petition and posted for committal. Having aggrieved by the refusal to discharge them, the petitioners have preferred this revision.

2. Mr.Jagadeeswaran, the learned counsel for the petitioners, on the strength of the decisions in RAJ KISHORE PRASAD v. STATE OF BIHAR (1996 CRI.L.J.2523 (SC) and GOBINDA CHANDRA KUANR v. STATE OF ORISSA (2002 CRI.L.J.515 Orissa H.C.), would submit that after framing of the charges, entertaining the amended charge sheet and converting the Calendar Case as P.R. Case and proceeding towards the committal after dismissing the application for discharge under Section 239 Cr.P.C. is illegal, as Section 216 Cr.P.C. providing for alteration of the charge would not apply to this case and as such, the order dismissing the petition for discharge is not valid and therefore, the impugned order has to be set aside and the petitioners are liable to be discharged.

3. Mr.E.Raja, the Additional Public Prosecutor in justifying the impugned order would cite the authorities in RAMASWAMY GOUNDER v. STATE BY S.I. OF POLICE (1981 L.W.(Crl.) 94), A.K. JOSHI v. STATE OF A.P.(1979 CRI.L.J.63), GUNADHAR SHEE AND OTHERS v. STATE (1995(1) CRIMES 497) and RAJINDER PRASAD v. BASHIR (2001 AIR SCW 3688). He would contend that even assuming that Section 216 Cr.P.C. would not apply, under the powers vested with the Judicial Magistrate under Section 323 Cr.P.C., the conversion of the case from Calendar Case as P.R. Case for committal when there are materials for the offence under Section 307 I.P.C. is perfectly justified.

4. I have carefully considered the rival contentions and also gone through the impugned order as well as the case diary.

5. Before dealing with the question posed in this case, it would be better to notice the chronological events that took place in this: (a)On 10.1.1998 one Saradhamani, a girl aged about 18 years was standing in front of her house. The petitioners scolded her and when she went inside the house, they trespassed into the house and attacked her with iron rod by stabbing on the right eye causing piercing wound. She was immediately taken to hospital.

(b)On intimation, Mr.Gunasekaran, Sub Inspector of Police, Emerald Police Station came to the hospital. The victim was in an unconscious position. Therefore, he obtained complaint from her father Beeman, one of the eye-witnesses and registered a case in Crime No.2/98 under Sections 448, 323 and 326 read with 109 I.P.C.

(c)The victim gained consciousness only after 20 days. Therefore, the Sub Inspector of Police went to the hospital and obtained a statement on 1.2.1998 from her. She gave the statement stating that on the instigation of the petitioners 2 and 3 that she should be killed by stabbing on her eye, the first petitioner with iron rod gave a stab on the right eye and when she fell down with pain, all the three accused thinking that she died ran away from the place.

(d)The Sub Inspector of Police obtained similar statement from the father Beeman and the mother Mani on the same day. Since the Sub Inspector felt that it is the case of Section 307 I.P.C., sent a report to the Inspector of Police Rangarajan requesting for further investigation for Section 307 I.P.C. (e)Mr.Rangarajan took up further investigation and examined the witnesses and dropped the offence under Section 307 and filed the charge sheet on 4.4.1998 before the Judicial Magistrate, Udhagamandalam and the same was taken on file for the offences under Sections 448, 323 and 326 read with 109 I.P.C. (f)After the case was taken on file in C.C.No.81 of 1998, summons were issued to the accused and the accused appeared before Court. The copies were furnished to them on 14.9.1998. The summons were also issued to the witnesses.

(g)At that stage, the investigating agency came to know that the victim Saradhamani died in the hospital. Thereafter, the amended charge sheet was filed on 15.9.2000 with an application requesting the Court to entertain the amended charge sheet for including Section 307 I.P.C. also against the petitioners. Accordingly, on 21.9.2000, the learned Judicial Magistrate, Udhagamandalam converted the Calendar Case No.81 of 1998 as P.R.C.No.7 of 2000 for the offences under Sections 44 8, 323, 326, 307 and 307 read with 109 I.P.C. and posted the matter for furnishing the further papers to the accused for committal.

(h)Thereafter, the matter was adjourned for several hearings. At last on 6.6.2001, the petitioners filed an application under Section 239 Cr.P.C. requesting the Court to discharge them in respect of the offence under Section 307 I.P.C. The said application was opposed by the prosecution by filing counter stating that the Court has got powers under Section 216 Cr.P.C. to alter the charge for the offence under Section 307 I.P.C. and as such, they are not entitled to be discharged.

(i)Finally, by the order dated 25.9.2001, the learned Judicial Magistrate, Udhagamandalam accepted the argument of the learned Assistant Public Prosecutor on behalf of the respondent police and dismissed the application for discharge and posted the matter for committal proceedings." 6. At the outset, it shall be mentioned that the application filed by the petitioners under Section 239 Cr.P.C. is not maintainable, since the Judicial Magistrate would not be empowered to discharge the accused, especially when the Judicial Magistrate if of the opinion that there are materials disclosing the offence under Section 307 I.P.C. and as such, the case is liable to be committed to Sessions.

7. Section 239 Cr.P.C. would come into play only when the accused request the Court to discharge in respect of particular offence when no evidence for constituting that offence is available. Furthermore, such a request can be made by the accused only to the Court, which is competent to frame the charge for the said offence. Admittedly, the offence alleged against the petitioners is under Section 307 I.P.C., which is triable by the Sessions Court. Therefore, the question of discharge under Section 239 Cr.P.C. in respect of the offence under Section 307 I.P.C. before the Judicial Magistrate would not arise. Hence, the very application filed by the accused, which culminated in the impugned order is not maintainable under law.

8. Admittedly, the case was converted from Calendar Case as P.R. Case entertaining the amended charge sheet under Section 307 I.P.C. by the order of Judicial Magistrate dated 21.9.2000. If the party is aggrieved by the said order, they should have approached the proper forum to challenge the said order. On the other hand, without challenging the same, after nine months or so, the petitioners filed an application to discharge under Section 239 Cr.P.C. Admittedly, this revision is directed against the order passed on 25.9.2001 dismissing the application under Section 239 Cr.P.C. and not against the order converting the Calendar Case as P.R. Case dated 21.9.2000. Under those circumstances, the revision itself is not sustainable under law.

9. However, the impugned order has to be dealt with in yet another angle. The dismissal of the application under Section 239 Cr.P.C. through the impugned order was not on the reason that the said application was not maintainable. On the other hand, the learned Judicial Magistrate for sustaining the order dated 21.9.2000 converting C.C.No.81 of 1998 as P.R.C.No.7 of 2000, would observe that the learned Judicial Magistrate has got powers to alter the charge under Section 216 Cr. P.C. This reasoning or observation for sustaining the order dated 21.9.2000 through the order dated 25.9.2001 also, in my view, is wrong.

10. As indicated above, Section 216 Cr.P.C. would give powers to the Court to alter the charge at any time before the judgment is pronounced only when such a Court is competent to frame the charge. Admittedly, the Judicial Magistrate is not competent to frame the charge under Section 307 I.P.C. But, the reading of the impugned order would show that even though the learned Judicial Magistrate framed charges against the petitioners for the first class offences, on perusal of the records and on consideration of the application along with the amended charge sheet he would come to the conclusion that the case is made out for offence under Section 307 I.P.C. and as such, it is triable by the Sessions Court and therefore, the case was to be committed.

11. The order converting Calendar Case as P.R. Case for committing the case cannot be construed to be under Section 216 Cr.P.C., but the said powers are vested with the Judicial Magistrate under Section 323 Cr.P.C. Section 323 would provide as follows:

"323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.-If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions herein before contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made."

So, the above provision would make it clear that if it appears to the Magistrate at any stage of the proceedings that the case is one which ought to be tried by the Sessions Court, he shall commit it to that Court.

12. In this case, though the charges had already been framed for the first class offences, from the materials and on the application of prosecution, it appeared to the Judicial Magistrate that the case is of Section 307 I.P.C. and as such, he came to the conclusion that it is the case for committal.

13. In this context, it is contended by the counsel for the petitioners on the strength of 2002 CRI.L.J.515 (supra) that the committal under Section 323 Cr.P.C. can be done only after commencement of trial on the basis of evidence let in before the Court and not before that. 14. The decision of the Orissa High Court in 2002 CRI.L.J.515 would not apply to the present case. On the other hand, the decision of the Calcutta High Court reported in 1995(1) Crimes 497 (supra), while dealing with the similar facts of the case, would show that if there are materials to disclose the offence triable by Sessions Court, the Magistrate has to commit the case under Section 323 Cr.P.C. even before the examination of witnesses. The relevant observation is this:

"In short, if the complaint makes out a prima facie case involving an offence exclusively triable by a Court of Session, the Magistrate has to commit the case after issuing process where the offence is exclusively triable by the Court of Session, the committing Magistrate has no power to discharge the accused nor can he take oral evidence save where a specific provision like Section 307 enjoins. He cannot decide either whether a prima facie case has been made out on merits. But if one glances at the Section 323 of the Code where powers of the Magistrate under Section 323 are wide enough and not circumscribed by any extent."

This observation, in my view, would squarely apply to the present facts of the case.

15. It is true that in Orissa judgment referred to above, Section 32 3 Cr.P.C. cannot be invoked after the enquiry is over and before the commencement of trial. Though this observation, in my view, is not correct, in view of the clear terms in Section 323 Cr.P.C. providing for any stage, this decision would not help the petitioners, as, in this case, the charges had already been framed for the first class offences by the Judicial Magistrate.

16. It is settled law as laid down by this Court as well the Supreme Court, the trial starts from the date of the charge. Even assuming that the dictum laid down by the Orissa High Court is right, the exercise of the powers vested with the Judicial Magistrate under Section 323 Cr.P.C. cannot be said to be illegal, in view of the above legal situation.

17. In any event, it is to be held that the Judicial Magistrate shall commit the case under Section 323 Cr.P.C. even before the evidence is taken, if it appears to him that the case is triable by Court of Session. The word 'evidence' as contemplated in Section 319 Cr.P.C. is not available in Section 323 Cr.P.C. Section 319 specifically provides that the Magistrate can proceed against any other person only when the evidence is let in before the said Court, that is, during the examination of witnesses. That prohibition is not contemplated in Section 323 Cr.P.C.

18. Furthermore, in this case, the Sub Inspector of Police, who examined the victim on 1.2.1998 and two witnesses, namely father and mother, who have given statement that A1 attacked on the instigation of A2 and A3 to stab on her eye and kill her. On the basis of this, the Sub Inspector of Police correctly sent a report to the Inspector of Police Rangarajan for taking further investigation for Section 307 I.P.C. But, Mr.Rangarajan did not even bother to alter the F.I.R. and send the altered F.I.R., but hurriedly finished the investigation and filed the charge sheet for the minor offences, first class offences. From the medical report and the statements of the father and mother and the nature of the weapon and the number of days she was hospitalised would certainly make it clear that this is a case of Section 307 I.P.C.

19. When this Court summoned Mr.Rangarajan, who is retired now, he has filed an affidavit before this Court stating that only on the basis of the draft charge sheet prepared by the Assistant Public Prosecutor, he filed the charge sheet without any mala fide intention. But, he has given wrong particulars in the affidavit that the Sub Inspector of Police told him that only the victim had spoken about the attempt to kill her and no witnesses spoke about this. This is factually wrong. On perusal of the case diary, the Sub Inspector Gunasekaran recorded the statements of both the father and mother who referred about the attempt made by the accused to kill the victim by stabbing on her eye with iron rod. Therefore, both the Assistant Public Prosecutor and the Inspector of Police Rangarajan have not done the duty properly, even though the Sub Inspector of Police Gunasekaran who promptly and correctly sent a report to the Inspector of Police to alter the case into one under Section 307 I.P.C.

20. In view of the discussion made above, the impugned order dated 25 .9.2001 as well as the earlier order dated 21.9.2000, in my view, is justified, as the Magistrate has got powers under Section 323 Cr.P.C. to commit the case as well as the accused to the Sessions for trial. Consequently, the revision is dismissed. Crl.M .P.No.8163 of 2001 is also dismissed. 21. The Judicial Magistrate, Udhagamandalam is directed to commit the case after observing the formalities under Section 209 Cr.P.C. so as to enable the Sessions Court to go on with the proceedings and dispose of the matter in accordance with law as expeditiously as possible. 1-04-2002

Index:Yes(I)

mam

To

1)The Judicial Magistrate, Udhagamandalam.

2)The Public Prosecutor, High Court, Madras.

M. KARPAGAVINAYAGAM, J.

Order in

Crl.R.C. No.1556 of 2001 &

Crl.M.P. No.8163 of 2001.

1-04-2002




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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