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ASARAF ALI versus THE STATE REPRESENTED BY2.SITTHI SARBUNISH

High Court of Madras

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Asaraf Ali v. The State represented by2.Sitthi Sarbunish - Crl.R.C.(MD).Nos.427 of 2005 [2007] RD-TN 1075 (23 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 23/03/2007

CORAM

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Crl.R.C.(MD).Nos.427 of 2005

Crl.R.C.(MD).Nos.428 of 2005

Crl.R.C.(MD).Nos.429 of 2005

Crl.R.C.(MD).Nos.430 of 2005

and

Crl.M.P.(MD)Nos.3617 to 3620 of 2005

and

M.P.(MD)Nos.1, 1, 1 and 1 of 2006

Crl.R.C.(MD)No.427 of 2005

1.Asaraf Ali

2.Khaja Mohideen

3.Saara Ammal

4.Siddiq

5.Maimoon Beevi ... Petitioners Crl.R.C.(MD)No.428 of 2005

Jain Beevi alias Jainam ... Petitioner Crl.R.C.(MD)No.429 of 2005

Jain Beevi alias Jainam ... Petitioner Crl.R.C.(MD)No.430 of 2005

1.Asaraf Ali

2.Khaja Mohideen

3.Saara Ammal

4.Siddiq

5.Maimoon Beevi

6.Peer Mohammed

7.Chellappa alias Khader Mohideen ... Petitioners Vs

1.The State represented by

The Inspector of Police,

Dindigul Town Police Station,

Dindigul.

2.Sitthi Sarbunisha ... Respondents

(R2 impleaded vide orders of this Court in Crl.M.P.(MD)Nos.6310 to 6313 of 2005.)

Prayer: Criminal Revision Cases filed under Sections 397 and 401 of the Code of Criminal Procedure, to set aside the order dated 23.05.2005 passed in Crl.M.P.Nos.125 of 2001, 128 of 2001, 127 of 2001 and 126 of 2001 in S.C.Nos.65 of 2001, 64 of 2001, 66 of 2001 and 63 of 2001 respectively, by the learned Assistant Sessions Judge (Chief Judicial Magistrate), Dindigul. For Petitioners : Mr.A.Hariharan For Respondents : Mr.M.Ravishankar Government Advocate (Crl.Side) for R.1 Mr.K.P.S.Palanivel Rajan for Mr.G.Saravana Kumar for R.2 * * * * *

COMMON ORDER



These petitions are focussed as against the orders dated dated 23.05.2005 passed in Crl.M.P.Nos.125 of 2001, 128 of 2001, 127 of 2001 and 126 of 2001 in S.C.Nos.65 of 2001, 64 of 2001, 66 of 2001 and 63 of 2001 respectively, by the learned Assistant Sessions Judge (Chief Judicial Magistrate), Dindigul.

2. The facts in nutshell for the disposal of these Criminal Revision Cases would run thus:

(i) It so happened that the second respondent herein filed a private complaint before the learned Magistrate concerned for the offence punishable under Sections 498(A), 307, 406 read with 120(B) I.P.C and thereupon the learned Magistrate recorded the statement of the complainant and also the statement of doctor concerned. Subsequently, the instance of the same complaint, the second respondent herein, registered the case in Crime No. 465 of 1999 was registered by the Police for the offences punishable under Sections 307 and 498-A I.P.C. The Police also laid the Police report before the Court concerned and it was committed to the Court of Session separately and based on the private complaint, the same Magistrate committed the case to the Court of Session. (ii) It also appears that there is a juvenile also in this case. So far no charges have been framed in both the cases. While so, the petitioner herein filed a petition in Crl.M.P.Nos.125 of 2001, 128 of 2001, 127 of 2001 and 126 of 2001 in S.C.Nos.65 of 2001, 64 of 2001, 66 of 2001 and 63 of 2001 respectively, for discharge. Thereupon, the learned Magistrate after narrating the facts on both sides simply in one sentence dismissed the petition on the sole ground that this Court earlier gave direction in Crl.O.P.No.2419 of 2005 for speedy disposal of the matter and as such dismissed the petitions. Being dissatisfied with and being aggrieved by the said order, four petitions have been filed.

3. Heard both sides in entirety.

4. The learned counsel for the petitioner would submit that the learned Magistrate before committing the complainant case to the Court of Session failed to adhere to the mandates of Section 202(2) Cr.P.C and that there were no grounds for framing charges. The learned counsel for the second respondent herein would submit that non-adherence to Section 202(2) Cr.P.C. would not be fatal in all cases and even if such non-adherence is there, section 465 Cr.P.C. would come into operation and it is only a curable defect if at all it has to be termed as a defect or irregularity.

5. The learned Counsel for the petitioner would submit that the Sessions Judge before framing charges, as per the dictum of the Honourable Apex Court in Rosy and another reported in State of Kerala and others ought to have considered the grievance of the petitioner and should have taken a decision. Certain excerpts from the aforesaid decision, would run thus: "10. It is only if the Magistrate decides to hold the inquiry the proviso to sub-section (2) of Section 202 would come into operation. If the offence is triable exclusively by the Court of Session, the Magistrate himself has to hold the inquiry and no direction for investigation by the police shall then be made. Inquiry can be held for recording evidence on oath and if he thinks fit, sub- section (2) of Section 202 gives discretion to the Magistrate to record the evidence of the witnesses on oath. To this discretionary power, the proviso carves out an exception. It provides that for the offence triable exclusively by the Court of Session, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. Then the next stage after holding inquiry is passing of appropriate order of either dismissal of the complaint or issue of process. That is provided under Sections 203 and 204 of the Code. Hence, on receipt of the complaint, the Magistrate by following the procedure prescribed under Section 200 may issue process against the accused or dismiss the complaint. Section 203 specifically provides that after considering the statement on oath, if any, of the complainant and witnesses and the result of the inquiryor investigation, if any, under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. For dismissal of the complaint, he is required to briefly record his reasons for so doing. In other cases, he has to issue process i.e., either summons or warrants as the case may be as provided under Section 204. However, no summons or warrants is to be issued against the accused until a list of the prosecution witnesses has been filed. Therefore, the question of complying with the proviso to sub-section (2) of Section 202 would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and secondly in such inquiry by him, if he decides to take evidence of witnesses on oath. But the object and purpose of holding inquiry or investigation under Section 202 is to find out whether there is sufficient ground for proceeding against the accused or not and that holding of inquiry or investigation is not an indispensable course before issue of process against the accused or dismissal of the complainant. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. ...

17. At the initial stage, if objection is raised and it is found by the Sessions Court that by non-holding of inquiry, prejudice is caused to the accused, he may direct the Magistrate to follow the procedure prescribed under the proviso. It is no doubt true that by the use of the word "shall", it appears that the language used in the proviso is of a mandatory nature. At the same time, it is a procedural law and it is to be read in the context of Section 200 which enables the Magistrate to issue process without holding any inquiry and that inquiry under Section 202 is itself a discretionary one - giving the option to examine witnesses on oath. Hence, the proviso to the said sub-section is required to be read accordingly though couched in mandatory terms by using the word "shall". Normally, the procedure prescribed therein should be followed, but non-observance of the said procedure may not vitiate further proceedings inall cases. In a case where a complaint is filed not by the public servant and where the offence is exclusively triable by the Court of Session, the Magistrate should follow the proviso to sub-section (2) of Section 202 and call upoon the complainant to produce all his witnesses and examine them on oath. This would be in consonance with the provision of Section 208 which, inter alia, provides for supply of copy of statements and documents to the accused. This would also facilitate the Sessions Court in framing the charge or discharging the accused. In the Sessions Court is required to consider the record of the case and the documents submitted therewith and, after hearing the submissions of the accused and the prosecution in this behalf, to decide whether there is sufficient ground or not for proceeding against the accused. Upon such consideration, if the court finds that there is no sufficient ground for proceeding against the accused, he shall be discharged as provided under Section 227. In case, where there is sufficient ground, the court is required to frame the charge as provided under section 228. Hence, for the purpose of framing the charge also the recording of such evidence is necessary. It also facilitates the accused to know the allegation made against him as well as the evidence in support thereof. However, in a case where a complaint is filed by a public servant after holding an inquiry and recording the statements, question of recording of such evidence may not arise. Hence, compliance with the proviso by the Magistrate in all sessions triable cases is not a must and would not vitiate further trial unless prejudice caused to the accused is established.

18. Further, the aforesaid interpretation would be in consonance, with Chapter XXXV CrPC, which deals with irregularities in the proceedings, which may or may not vitiate the proceedings. Sections 460 and 461 provide which irregularities would or would not vitiate the proceedings. In these sections, there is no mention of Section 202. For our purpose reference to Section 465 would suffice, which, inter alia specifically provides that irregularity in the complaint, summons, warrant, order or other proceedings before or during trial or in any inquiry shall not be a ground for reversing an order passed by the competent court, unless in the opinion of that court a failure of justice has in fact been occasioned thereby. Sub-section (2) further provides that in determining whether any irregularity in proceedings has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Hence, the statue does not expressly provide for nullification of the order as a consequence of non-compliance with the proviso to sub-section (2) of Section 202, but provides that unless prejudice is caused, the order is not to be set aside. This would mean that during inquiry under Section 202 when the Magistrate examines the witnesses on oath, as far as possible the proviso is to be complied with but the mandate is not absolute."

6. Regarding the law points are concerned, absolutely there is no doubt as the Honourable Apex Court dealt with the issues in detail. The learned Sessions Judge absolutely failed to take into consideration the relevant factual as well as the legal position and simply dismissed the application. It is the case of non-exercise of jurisdiction. The learned Sessions Judge would do well to peruse the entire judgment of the Honourable Apex Court as well as the relevant points relating to it and decide Crl.M.P.Nos.125 of 2001, 128 of 2001, 127 of 2001 and 126 of 2001 in S.C.Nos.65 of 2001, 64 of 2001, 66 of 2001 and 63 of 2001 respectively, afresh after giving due opportunity to both sides.

7. The perusal of the records and the hearing on the arguments made me to recollect Section 210 of the Code of Criminal Procedure and it is extracted hereunder for ready reference:

"210. Procedure to be followed when there is a complaint case and the police investigation in respect of the same offence.- (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."

8. The following decisions are also cited for consideration of the learned Magistrate:

(i) Harjinder Singh v. State of Punjab and others reported in (1985) 1 Supreme Court Cases 422.

(ii) Abdul Salam v. Inspector of Police reported in 1994 CRL.L.J. 578. (iii) S.K.Abdur Rahim v. Amal reported in 1996 CRL.L.J.555.

9. All those would clearly show that when there is a case instituted by way of private complaint as well as the police case, the procedure to be adopted is found set out under Section 210 Cr.P.C. No doubt, it appears that the learned Magistrate himself ought to have looked into all those factual as well as the legal position before committal. Now, the matter is before the learned Sessions judge and the learned Sessions Judge is expected to apply his mind keeping in view Section 210 Cr.P.C and the decisions emerged thereunder and accordingly, he should deal with the matter. Over and above that, admittedly, there is a juvenile in the Sessions Cases. It is obvious and in addition to it being a trait proposition of law that the juvenile cannot be tried by the learned Sessions Judge and that the juvenile could be tried only by the Juvenile Justice Board. It appears that both sides have not enlightened in that aspect, neither the learned Magistrate nor the Sessions Judge so far and it is incumbent upon the Judges concerned to apply their minds in this regard.

9. Hence, with the above observations, the orders dated 125 of 2001, 128 of 2001, 127 of 2001 and 126 of 2001 in S.C.Nos.65 of 2001, 64 of 2001, 66 of 2001 and 63 of 2001 respectively, are set aside and the matter is remitted back to the learned Sessions Judge who shall deal with the matter as per law within a period of two months from the date of receipt of this order.

10. The learned Counsel for the second respondent also made submissions to the effect that he should also be given opportunity to file a petition under section 210 Cr.P.C before the learned Judge for exercising his powers under it and accordingly, the second respondent is at liberty to do so. Irrespective of that, the learned Sessions Judge himself is expected to apply his mind concerning application of Section 210 Cr.P.C and the decisions emerged thereunder to the cases before him.

11. With the above observations, these Criminal Revision Cases are disposed of. Consequently, connected Miscellaneous Petitions are also closed. 23.03.2007 Index : Yes

Internet : Yes

smn/rsb

To

1.The Inspector of Police,

Dindigul Town Police Station,

Dindigul.

2.The Assistant Sessions Judge

(Chief Judicial Magistrate),

Dindigul.

G.RAJASURIA, J

rsb

Crl.R.C.(MD).Nos.427 to 430 2005

and

Crl.M.P.(MD)Nos.3617 to 3620 of 2005

and

M.P.(MD)Nos.1, 1, 1 and 1 of 2006

23.03.2007


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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