IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.1328 of 2006 K.Shajahan ... Petitioner /Defacto Complainant vs. 1.Subramani Gounder 2.Mannu Gounder 3.State rep.by Inspector of Police, Arni Town Police Station, Tiruvannamalai District ... Respondents / Crime No.57/02 Complainant Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 4.7.2006, passed by the Judicial Magistrate, Arni, Tiruvannamalai District, in C.C.No.17 of 2005. For Petitioner : Mr.J.Saravana Vel For Respondent : Mr.M.Arunachalam for R1 & R2 Mr.Hasan Md.Jinnah,A.P.P.for R3 O R D E R Challenging and impugning the order dated 4.7.2006, passed by the Judicial Magistrate, Arni, Tiruvannamalai District, in C.C.No.17 of 2005 ,this criminal revision case is focussed. 2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus: The police laid the police report in terms of Section 173 Cr.P.C. as against the accused for the offences under Sections 447, 506(2). r/w.34 IPC. The accused pleaded not guilty, whereupon, after complying with the procedures and formalities, trial was commenced. Ultimately, the learned Magistrate acquitted the accused. Being aggrieved by and dis-satisfied with the said acquittal, the present revision has been filed on various grounds, the gist and kernal of them would run thus:- The Magistrate had given undue importance to the deposition of P.W.7-the Court Amin and erroneously arrived at the conclusion that there was no physical delivery at all in favour of the de-facto complainant and that the accused continued to be in possession of the suit property. The https://hcservices.ecourts.gov.in/hcservices/ Magistrate was wrong in holding that the thatched shed, which was there in the suit property, was not removed at all at the time of giving delivery. The ratiocination adhered to by the Magistrate is perverse, due to wrong appreciation of evidence and applying the law. Even though clinching evidence was adduced, pointing out that the accused committed trespass and also intimated P.W.1, nonetheless the Magistrate simply disbelieved the prosecution case as though the case was not proved. 3. Heard both sides. 4. The point for consideration are as under: (i) Whether the approach of the Magistrate in ignoring the Court records, evidencing delivery in favour of P.W.1, and in holding that there was no delivery of the property effected in favour of P.W.1 and when the accused continued to be in possession of it, is perverse and based on wrong appreciation of facts and non-application of appropriate legal provisions?. (ii) Whether the Magistrate was wrong in giving his finding that no offence of trespass and intimidation occurred?. 5. Points (i) & (ii): Both these points are taken together for discussion, as they are inter-linked and entwined, interwoven and interconnected with each other. 6. The learned counsel for the revision petitioner would advance and develop his argument to the effect that the lower Court should have accepted the documents filed on the prosecution side, evidencing delivery effected in favour of P.W.1 through Court; even though P.W.1 was in effective possession of the suit property, the Magistrate simply believed that the accused were in possession continuously, irrespective of the delivery effected through Court and the prosecution witnesses established the case against the accused, but the Magistrate took a wrong view. 7. Whereas the learned counsel for the accused/respondent, by way of pulverising and torpedoing the arguments as put forth by the learned counsel for the revision petitioner, would unconvincingly submit that the lower Court correctly and appropriately held that the so called delivery was only paper delivery and actual physical possession was with the accused and it continued to be so, and there was no chance of any fresh trespass having been committed by the accused and there was no necessity also for them; the allegation that the accused intimidated P.W.1 was not fortified or buttressed by any evidence much less clinching evidence and hence the acquittal recorded by the lower Court warrants no interference. Furthermore, the learned counsel for the accused also would cite the following two decisions of the Honourable Apex Court: https://hcservices.ecourts.gov.in/hcservices/ (i) 2002 Supreme court cases (crl) 1448 - Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another, an excerpt from it would run thus: "13. The instant case is not one where any such illegality was committed by the trial court. 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. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus: "22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice." 8. At this juncture, I would like to recollect the following maxims: (1) Actus curiae neminem gravabit (2) Actus legis nemini facit injuriam (3) Executio juris non habet injuriam The aforesaid maxims would connote and denote that no one could raise any objection or complaint that he has been wronged by any steps taken by the Court. In this case, it is axiomatic and glaringly evident that P.W.1, through Court process, obtained delivery of the property concerned, and to that effect the Magistrate himself has given his finding. However, the Magistrate, by placing reliance on the deposition of P.W.7-the Amin, which is to the following effect https://hcservices.ecourts.gov.in/hcservices/ @30/8/2001 md;W Muzp rhh;g[ ePjpkd;w rPdpah; bga;tpg;ghf ,Ue;jnghJ. 30/8/2001 md;W khtl;l chpikapay; ePkd;w cj;jput[ 298-99 d;go 15. eurpk;kd; bjU. bfhrg;ghisak; Muzpf;F fpuhk eph;thf mYtyh; bgUkhs;/ cjtpahsh; re;jpud; kw;Wk; Ch; kf;fs; MfpnahUld;. RthjPdk; mspf;f brd;nwd;/ mg;nghJ. m';fpUe;j rpd;dft[z;lh; RthjPdk; bfhLj;J bjhptpf;f RthjPdk; mspg;gjhft[k;. fPw;W bfhl;lifia ,uz;L ehl;fs; fHpj;J gphpg;gjhf brhd;dh;/ RthjPd urPjpy; v1 ifbaGj;J bra;jhh;/ nghyPrhh; tprhhpj;jdh;/ RthjPd urPJ efy; m/rh/M3 Mf FwpapL bra;ag;gl;Ls;sJ/@ arrived at the conclusion that the delivery given was only a paper delivery and not actual delivery and that the possession continued to be with the accused. In fact, having this in mind, the Magistrate approached the case and arrived at a wrong conclusion. Once there is a valid Court order, whereupon there emerged the record of delivery, evidencing actual delivery of the property, on 30.8.2001. It is not open for the accused, who is bound by such Court order, to veer round and take a plea before the criminal Court as though the property delivered was only a paper delivery; that the accused continued to be in possession and that in such a case, he should not be treated as a trespasser. If at all the accused was aggrieved by such alleged paper delivery and recording of such paper delivery, he ought to have taken action to get such order of Court set aside. It is a common or garden principle that in the execution proceedings, after delivery, the matter has to be reported to the Court, whereupon the Court would be recording the delivery. 9. In this case, that process was over and there is nothing to show that the executing Court itself has not recorded the actual delivery. Once the Magistrate himself got satisfied that record wise delivery was handed over to P.W.1, he ought not to have entertained the contrary version, which was made to be put forth through the mouth of P.W.7. 10. I am at a loss to understand as to how P.W.7-being the Court Amin could utter out such a plea, as extracted supra. It is the duty of P.W.7 to give effective delivery, but shockingly and illegally P.W.7 himself had the mendacity and audacity to depose that effective physical delivery was not given to P.W.1, however he gave report to the executing Court that physical delivery was given not given to P.W.1, however, he gave report to the executing Court that physical delivery was given. Holus bolus , before the criminal Court, P.W.7 deposed as though there was a hut at the time of delivering the property in favour of P.W.1 and that two days time was sought by the accused for removing it. If this sort of pleas and evidence are allowed to be entertained, certainly, the Court process would be set at naught and it would be mockery of justice. At this juncture, I would like to highlight and spotlight the fact that there is a legal defence 'paper delivery' which could be put forth by a third party to execution proceedings not by the judgement debtor himself, who supinely and passively accepted the recording of delivery by the executing Court. My mind is redolent and reminiscent of the following maxims: https://hcservices.ecourts.gov.in/hcservices/ (i) Nullus commodum capere potest de injuria sua propria; (ii) Nul prendra advantage de son tort demesne, which means no one can take advantage by his own wrong. 11. The learned Magistrate should have considered the fact as to whether on 11.2.2002, at the relevant time, P.W.1. attempted to raise a compound wall and whether there was obstruction or not and also as to whether the accused involved in intimidation; instead, as an appellate Court, the Magistrate simply entertained a rowing and broad based wrong enquiry as to whether delivery effected on 30.8.2001 is a paper delivery or actual delivery and it was beyond the scope of the trial and it is clearly in excess of his powers. In view of such wrong approach, he mis-directed himself and looked askance at the very genesis of the prosecution case and held that the entire case of the prosecution was not made out. 12. The learned counsel for the accused would argue that in this case, irrespective of the so called delivery, the accused continued to be in possession and the lower Court believed it and there is nothing wrong in it. 13. I would like to dis-agree with such an argument as put forth by the learned counsel. If at all there is any evidence, aliunde clearly capable of demonstrating and proving that after such Court delivery effected through the Court, the accused peacefully in occupation of the suit property and established his possession; in other words, if the accused could prove that even though technically he might be trespasser as on 11.2.2002, he had been in established possession of the suit property, then the question of pressing into service Section 447 of IPC would not arise. But in this case, the approach of the Magistrate was not on that line and hence, the finding of the Magistrate required to be set aside and the matter is liable to be remitted back to the Magistrate Court to analyse the evidence in the light of the observation made by this Court and arrive at a reasoned fresh conclusion. Accordingly, the matter is remitted back to the lower Court, who is expected to dispose of the matter, within a period of three months from the date of receipt of copy of this order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Msk To 1. THE JUDICIAL MAGISRATE ARNI,TIRUVANNAMALAI DISTRICT https://hcservices.ecourts.gov.in/hcservices/ 2.-Do-Thro THE CHIEF JUDICIAL MAGISTRATE TIRUVANNAMALAI 3. THE INSPECTOR OF POLICE ARNI TOWN POLICE STATION, TIRUVANNAMALAI DISTRICT. 4. THE PUBLIC PROSECUTOR HIGH COURT, MADRAS Copy to: The Section Officer, VR Section,High Court, Madras. 1 cc To Mr.J.Saravanavel, Advocate, SR.25070 Crl.R.C.No.1328 of 2006 KS(CO) SRA(16/7/2009) https://hcservices.ecourts.gov.in/hcservices/