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KALIRATHINAM versus THE SUB INSPECTOR OF POLICE

High Court of Madras

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Kalirathinam v. The Sub Inspector of Police - Criminal Revision Case No.388 of 2006 [2007] RD-TN 1520 (19 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 19/04/2007

CORAM

THE HONOURABLE MR. JUSTICE P. MURGESEN

Criminal Revision Case No.388 of 2006

Kalirathinam .. Petitioner Vs

1.The Sub Inspector of Police

Pavoor Chathiram Police Station

Tirunelveli District.

.. Respondents

2.Devarajan

3.Kuthalingam

4.Palani .. Respondents Criminal Revision Case filed under Section 397 & 401 of Cr.P.C. to set aside the order of the learned Judicial Magistrate, Thenkasi made in C.C.No.483 of 2001 dated 13.02.2006 and remand the case to the trial Court for disposal according to law.

For Petitioner .. Mr.T.Ramasamy

For 1st Respondent .. Mr.Siva Iyyappan, Govt.Advocate (Crl.Side) For Respondents 2 to 4 .. No appearance

O R D E R



The Revision is directed against the order of the learned Judicial Magistrate, Thenkasi made in C.C.No.483 of 2001 dated 13.02.2005.

2.The case of the prosecution is briefly as follows: a)P.W.1 is the resident of Kizhapavoor. There was a dispute between the accused and P.W.1. On 18.3.2001 at about 6.00 a.m., when P.W.1 came to open his shop, the accused scolded him and questioned him as to how his wife can ask the balance amount from them. All the accused attacked P.W.1. On hearing the hue and cry raised by P.W.1, Murugesan-P.W.2 and Kalimuthu-P.W.3 prevented the parties and pacified them. P.W.1 gave a complaint-Ex.P1 to the Police. b)Sub-Inspector of Police attached to Pavoor Chathiram Police Station registered the case in Crime No.81 of 2001 under Section 341, 323, 325 and 506 (1) IPC. Police sent P.W.1 to Thenkasi Government Hospital for treatment. c)The victim was treated by P.W.4-Doctor attached to Thenkasi Government Hospital. He found the following injuries:

INJURIES:

1.Lacerated injury sized 5 x 4 cm on the left parietal region of head underlying contusion 7 x 5 cm.

2.Abrasion 4 x 2 cm back of left elbow.

3.Abrasion 2 x 1 cm outer aspect left foot below with toe. 4.abrasion 1 x 1 cm just below right knee.

5.Contusion 10x 7 cm back of lower left chest.

6.Contusion 6 x 3 cm back of upper left chest.

7.Contusion 10x 5 cm back of lower right chest.

8.Contusion 8 x 8 cm front of lower right thigh." Ex.P2 is the wound certificate.

3.The prosecution in order to bring home the charges against the accused, examined P.Ws 1 to 5 and filed Exs P1 to P3.

4.When the accused were examined under Section 313 of Cr.P.C., in respect of the incriminating materials appearing against them through the evidence adduced by the prosecution, they have come forward with the version of total denial and pleaded innocence.

5.On consideration of the entire evidence on record, the learned Judicial Magistrate, Thenkasi in C.C.No.483 of 2001 dated 13.2.2006 acquitted the accused.

6.Aggrieved over the Judgment of acquittal, the present Criminal Revision Case has been filed.

7.Point for Determination:

1.Whether the Revision is maintainable ? POINT:

8.The Powers of revisional Court has been clarified by the Supreme Court in 2002 SCC (Cri) 1067 and 1448 and in (2004) XIII SCC 376.

9. In (2004) XIII Supreme Court Cases 376 (Hydru VS State of Kerala) the Supreme Court had observed as under:

"It is well settled that in revision against acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any procedural irregularity or material evidence has been overlooked or misread by the Subordinate Court. If upon reappraisal of evidence, two views are possible, it is not permissible even

for the appellate Court in appeal against acquittal to interfere with the same, much less in revision where the powers are much narrower."

10. In 2002 Supreme Court Cases (Cri) 1067 (T.N.Dhakkal VS James Basnett and another) the Supreme Court held as under:

"Though the High Court has revisional jurisdiction under Section 401 Cr.P.C and can exercise its discretionary jurisdiction to correct miscarriage of justice, but whether or not, there is justification for the exercise of that discretionary jurisdiction would depend upon the facts and circumstances of each case. The controlling power of the High Court being discretionary, it is required to be exercised only in the interest of justice, having regard to all the facts and circumstances of each particular case and not mechanically."

11. In the case of Bindeshwari Prasad Singh alias B.P.singh and others Vs State of Bihar (Now Jharkhand) and another (2002 Supreme Court Cases (Cri) 1448) it was held:

"In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted."

12.As per the decision of the Hon'ble Supreme Court, the power of this Court is limited, which can interfere only when the trial Court overlooked the material evidence and when there is miscarriage of justice.

13.In this case, P.Ws 1 to 3 spoke about the occurrence. They were not cross examined. Their evidence was not considered by the Judicial Magistrate in a proper way. On the other hand, the learned Judicial Magistrate found that the case of the prosecution has to be thrown out for non-examination of the Head Constable and the Investigation Officer. The learned Magistrate was not satisfied with the explanation submitted for non-examination of the Investigation Officer.

14.It is for the prosecution to bring the witness and examine them. The prosecution did not chose to examine the Investigation Officer and the Police Constable. It is a settled principle of law that the non-examination of the Investigation Officer is not fatal and it depends upon circumstances of each case. In this context, it is relevant to refer to the decision of the Supreme Court in RAJLOSJPRE KJA Vs. STATE OF BIHAR reported in 2004 SCC (Cri) 212. So, mere non-examination of the Investigation Officer is not fatal so far as this case is concerned.

15.On careful analysing of the evidence on record, I find the learned Judicial Magistrate has overlooked the material evidence on record and thereby it resulted in miscarriage of justice. So, while analysing the case in the light of the Supreme Court decisions referred above, I am of the view of the order of the learned Judicial Magistrate is liable to be set aside and this is the fit case to be remitted back to the trial Court.

20.In the result, the Criminal Revision Case is allowed. The order the learned Judicial Magistrate, Thenkasi, made in C.C.No.483 of 2001 dated 13.2.2006. The matter is remitted back

P.MURGESEN J,

rpa

to the trial Judge who shall dispose of the case in accordance with law, without being influenced by the order passed by this Court in this petition.

19.04.2007 rpa

Index :Yes

Internet: Yes

To

1.The learned Judicial Magistrate, Thenkasi.

2.The Sub Inspector of Police

Pavoor Chathiram Police Station

Tirunelveli District.

3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

Crl.R.C.No.388 of 2006


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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