1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 22.09.2011 Coram: The Honourable Mr. Justice S.PALANIVELU Crl.RC.(MD).No.799 of 2011 M.Periyakaruppan .. Petitioner/Complainant vs. 1.A.Balajirao 2.S.Thirugnanam 3.C.Thirumalai 4.T.Pavunraj 5.C.Kanagaraj 6.S.Andichamy 7.T.Rajammal 8.C.Pidari 9.Ganesan 10.Gurusamy 11.Jagadeesan .. Respondents/Accused Criminal Revision Petition filed under Section 397 r/w. 401 of Criminal Procedure Code to call for the records of the lower Court and set aside the order dated 30.08.2011 passed by the Chief Judicial Magistrate, Madurai in Cr.M.P.No.918 of 2011 and direct the lower Court to take up the complaint on file and to issue summons to all the accused by holding that the prima facie case of the complaint had been established by the complainant. For Petitioner : M/s.T.Joseph Jeyakumar O R D E R This Criminal Revision is preferred to call for the records of the lower Court and set aside the order dated 30.08.2011 passed by the Chief Judicial Magistrate, Madurai in Cr.M.P.No.918 of 2011 and direct the lower Court to take up the complaint on file and to issue summons to all the accused by holding that the prima facie case of the complaint had been established by the complainant. 2. Heard the learned counsel appearing for the petitioner. 3. The petitioner filed a private complaint before the Chief Judicial Magistrate, Madurai, which was taken on file in Cr.M.P.No.918 of 2011. He is the cultivating tenant in Survey No.3/3 https://hcservices.ecourts.gov.in/hcservices/ 2 and 19/1 with an extent of three acres and seventy two cents belonging to the first and the second respondents. There was some dispute with regard to the possession of the land between the petitioner and the first and the second respondents. In the private complaint, he has alleged that on 10.02.2011 and 11.02.2011, he harvested a portion of paddy crops with his servants and on 12.02.2011, while he was harvesting the crops at about 11.00 a.m. accused 3 to 8 appeared in the scene with weapons and prevented him from proceeding with the harvest. On the same day, at about 09.00 p.m., when he was coming to his house in Iyyar Bungalow at Natham Main Road Koolpandi vilakku a minidor van came and stopped near him, from which the respondents 1 to 6 emerged with sticks in their hands, that second accused assaulted the petitioner by means of stick on his head caused bleeding injury, criminally intimidated him and fled away from the scene and that at about 10.00 p.m. the petitioner gave a complaint to the 9th accused but, he called the 10th accused in Appan Thirupathy Police Station over phone and asked the petitioner to go to Appan Thirupathy Police Station. When the petitioner enquired, why he was required to go to police station instead of going to the hospital, the 9th accused told him that the Inspector of Police, Oomachikulam police station was at Appan Thirupathi police station and after getting permission, he would be taken to the hospital for treatment. Though he was taken to Appan Thirupathi police station with two constables the petitioner called two persons for his help. But the 9th accused threatened them with dire consequences and hence, they left the place. 4. At 11.00 p.m. the 10th accused came and informed him that the Inspector of Police instructed him to register a case and send him to jail and that he could not be sent for medical treatment. The Sub Inspector consulted with the third accused and his son Pavanraj, prepared a complaint on the petitioner and his wife and his brothers under Sections 447, 323, 294(b), 379 NP and 506(i) IPC r/w. Section 4 of Tamil Nadu Women Harassment Act in Crime No.132 of 2011 and the petitioner was produced before the Additional Chief Judicial Magistrate, Madurai at 10.00 a.m. for judicial custody. On the advice of the Additional Chief Judicial Magistrate, the petitioner/complainant was taken for medical treatment and thereafter, he was detained in judicial custody. 5. On 13.02.2011, with the help of 11th accused all the accused 1 to 8 harvested the paddy crops in the land by means of machine and the value of the removed crops would be at Rs.30,000/-. In view of the above, the accused are punishable under Sections 147, 148, 323, 324, 506 (ii), 166, 342, 426, 427, 441, 447, 379 NP and 120 (B) IPC. 6. The learned Chief Judicial Magistrate, Madurai, recorded sworn statement of the petitioner and he passed the order under challenge dismissing the private complaint under Section 203 Cr.P.C. observing that there is no prima facie materials to take cognizance https://hcservices.ecourts.gov.in/hcservices/ 3 of the offences against the accused. 7. The learned counsel appearing for the petitioner would very much assail the order passed by the Court by stating that the learned Chief Judicial Magistrate has not applied his mind properly to the facts and circumstances of the case, that he has not referred the injury sustained by petitioner in his order, that when the petitioner did not say that he received injury by means of assault by the police, the order goes to say that the police caused the injury and that he has been wrongly mentioned that the petitioner was not informed the Magistrate with regard to the injury. 8. While the petitioner was produced before the Additional Chief Judicial Magistrate for first remand, he informed her about the injury sustained by him on his head. Hence, the Additional Chief Judicial Magistrate who was holding the additional charge of Judicial Magistrate No.II recorded that the accused has sustained head injuries and that the police is directed to take the accused to hospital for proper treatment and remand the accused till 25.02.2011. Accordingly, the petitioner was taken to hospital and was examined by Doctor and it is stated that he was advised to take treatment as inpatient. But, he was forcibly taken by A10 from the hospital to the prison, that is learnt from the letter given by the Public Information Officer, dated 09.03.2011, which is a reply to the petitioner's enquiry as to the particulars pertaining to his treatment as inpatient. It is replied therein that his injuries were recorded in the Accident Register and he was admitted to the hospital as inpatient. But, since he left the hospital without taking continuous treatment, there were no entries as to the treatment given to him as inpatient. This shows that the petitioner was admitted to the hospital and he was taken subsequently so as to show that he discontinued the treatment as inpatient. This fact has not been adverted to by the Court below in its order. 9. The learned Chief Judicial Magistrate has mentioned in his order that the petitioner did not inform the Judicial Magistrate that the police ill-treated him. But, it is not the case of the petitioner. Further, the order also reads that the complaint proceeds that the police illtreated him in so many ways viz., beating him on his head, causing injury and abused him with filthy language. But, the petitioner has not mentioned in his complaint that the police ill-treated him or assaulted him. 10. The petitioner on the strength of the allegations contained in the private complaint has given his sworn statement and the same was recorded by the Court below. In both the complaint and the sworn statement, the petitioner has specifically stated that the second accused assaulted him with stick on his head causing injury, but, the learned Chief Judicial Magistrate has not properly gone through the allegations in the complaint and the sworn statement. But he has incorporated certain allegations which are not covered by the https://hcservices.ecourts.gov.in/hcservices/ 4 complaint and the sworn statement. 11. Another disturbing feature found by this Court in the order under challenge is, in the preamble portion of the order it is mentioned that the Additional Public Prosecutor appeared on behalf of the accused, and his arguments were also heard. It is patently wrong. It is a pre-cognizance stage and the Additional Public Prosecutor has no role in this stage to make his appearance. In fact, he could not have appeared before the Court. But, inadvertently it has been typed in the order as if he appeared for all the accused, which could not be the situation. 12. In view of the above said circumstances, this Court is of the considered view that sufficient materials, namely, prima facie case is available against the accused for taking cognizance of the offences, and the order challenged before this Court is liable to be set aside and it is accordingly set aside. In the result, the Criminal Revision case is allowed setting aside the order passed by the learned Chief Judicial Magistrate, Madurai, directing him to restore the complaint to file and to take cognizance of the offences with regard to the concerned provisions of law under which the offences are made out and proceed with the same in accordance with law. Sd/- Assistant Registrar(A.S) /True Copy/ Sub Assistant Registrar To 1. The Chief Judicial Magistrate, Madurai. 2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai +1cc to Mr.T.Joseph Jeyakumar, Advocate, Sr.No.32751 Crl.RC.(MD).No.799 of 2011 22.09.2011 srm SMA/21.10.2011/4C/4P https://hcservices.ecourts.gov.in/hcservices/