1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 02.08.2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU Crl.R.C.(MD)No.325 of 2011 and M.P.(MD).No.1 of 2011 Thangapandi ... Petitioner/Petitioner Vs. – 1. Alagu 2. Dhanapackiyam ... Respondents/Proposed Accused Prayer: Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C. against the order dated 08.04.2011 passed by the learned Judicial Magistrate, Thirumangalam made in Crl.M.P.No.856 of 2011. For Petitioner : Mr.G.Mariappan O R D E R Two cases in Crime Nos.39 and 42 of 2010 have been registered on the file of the Talk Police Station, Thirumangalam. In Crime No.39 of 2010, the present petitioner has been arrayed as accused and the said case was registered under Sections 147, 148, 341, 323 and 302 I.P.C. The case in Crime No.42 of 2010 has been registered under Sections 294(b), 324 and 323 I.P.C. The Investigating Officer, as per the Police Standing Order No.566, investigated both the cases together and filed a charge sheet in Crime No.39 of 2010 and referred the case in Crime No.42 of 2010 as "Mistake of Fact". Against which, the petitioner filed a private complaint before the learned Judicial Magistrate against the respondents under Section 190(1) (A) r/w. Section 200 of Cr.P.C. 2. After considering the above said facts, the learned Judicial Magistrate has dismissed the petition by observing that the police during investigation has found out that this petitioner is the "aggressor" and since the petitioner is an aggressor, case should be filed against this petitioner alone for the offence under Section 302 I.P.C. This is the order challenged before this Court. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The learned counsel for the petitioner would contend that the order passed by the Judicial Magistrate is not sustainable for the reason that even though the Investigating Officer concluded that the petitioner is the aggressor, the Court has to decide the same in a fullfledged trial, that it is not the stage to decide who is the aggressor and the same has to be discussed and decided by the Sessions Court and not by the Judicial Magistrate Court. As required under Police Standing Order No.566, the Investigating Officer has failed to enclose the wound certificates of this petitioner and Chittammal - another injured and that it is incumbent upon the Judicial Magistrate, while taking cognizance of the offences, to see whether prima facie materials are available to issue summons to the accused. 4. In the complaint, it is alleged that on 14.03.2010 at about 9.00 p.m., a wordy altercation ensued between the women folk and the first respondent appeared in the scene and assaulted the petitioner with aruval causing injuries on his lips, that on hearing the noise raised by the petitioner's mother, Chittammal came and she was also cut by the first respondent with aruval on her left hand causing blood injury and the second respondent assaulted the mother of the petitioner with stick and that the first respondent criminally intimidated the petitioner and others. It is further stated that in the second attempt of the first respondent with aruval on the mother of the petitioner, unfortunately one Pawnraj sustained head injury and fell down. 5. The doctors, who have treated the petitioner and Chittammal have given statements to the effect that both of them sustained grievous injuries. The petitioner sustained fracture in his jaw and Chitammal suffered fracture in her elbow. The petitioner has also produced the wound certificates pertaining to the injuries. 6. It is the duty of the Investigating Officer to find out who is the aggressor and he has done this job. But the decision of the Judicial Magistrate that the petitioner is the aggressor is a predetermined one. Only after a fullfledged trial and appreciation of evidence on record, the Court can come to a conclusion that who is the aggressor and till then, the petitioner cannot be stated to be an aggressor. It is the duty of the Judicial Magistrate to find out whether any prima facie materials are available in the complaint to issue summons to the respondents/accused persons. 7. Merely because the petitioner has been termed to be an aggressor by the Investigation Officer, when sufficient materials are available in his complaint, his complaint should not be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 3 8. In the considered view of this Court, sufficient materials are available prima facie to issue summons to the respondents and there is no impediment for the Court to take cognizance of the offences as mentioned in the complaint. In such a view of this matter, a direction shall be issued to the Court below to take the complaint on file and to proceed in accordance with law. 9. In the result, the Criminal Revision Petition is allowed, setting aside the order challenged before this Court and the learned Judicial Magistrate, Thirumangalam is directed to take the complaint on file and to proceed with the same in accordance with law. Consequently, the connected Miscellaneous Petition is closed. Sd/- Deputy Registrar(W) /True Copy/ Assistant Registrar To The Judicial Magistrate, Thirumangalam akv rl/2c – 16.8.2011 Crl.R.C.(MD)No.325 of 2011 02.08.2011 https://hcservices.ecourts.gov.in/hcservices/