1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :16.06.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD)No.206 of 2011 Kalaimani ... Petitioner Vs. Velusamy, Inspector of Police, Thogaimalai Police Station, Kulithalai Taluk, Karur District. ... Respondent Prayer: Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C. against the order dated 04.09.2010 in Crl.M.P.No.787 of 2010 by the learned Chief Judicial Magistrate, Karur dismissing the private complaint at the inception stage. For Petitioner : M/s. S.Deenadhayalan For Respondent : No appearance O R D E R The revision petitioner is the complainant in the private complaint and aggrieved by the order dated 04.09.2010, passed by the Court of Chief Judicial Magistrate, Karur in dismissing his private complaint under Section 203 of Cr.P.C., has preferred this revision. 2. The learned counsel appearing for the revision petitioner would submit that the averments made in the complaint and documents filed in support of the complaint coupled with the sworn statement of the complainant, clearly disclose that complainant was harassed and subjected to ill-treatment under the guise of enquiry by the respondent, who is the police official. 3. The learned counsel appearing for the revision petitioner has also drawn the attention of this Court to the averments made in the complaint and the impugned order and would submit that the lower Court instead of finding the prima facie case, has gone through the extent of appreciating the evidence and committed a grave error by dismissing the said complaint and hence, prays for setting aside the order and further direction to take the complaint on file and issue summons to the accused. 4. Even though the respondent was served with notice and his name is appeared in the cause list today, there is no representation on his behalf and hence, this Court is proceeding to dispose of the revision on merits. https://hcservices.ecourts.gov.in/hcservices/ 2 5. A perusal of the complaint and the impugned order would prima facie disclose that the revision petitioner/complainant was subjected to harassment and also ill-treatment. However, the lower Court has taken into consideration some discrepancy with regard to the averments made in the complaint and the statement of the complainant. 6. A single Bench of this Court in the decision reported in 2009(1) TNLR 47 (Mad) in W.Apollos David vs. P.Sivakumar and others has referred the decision of the Honourable Supreme Court of India reported in JT 1996 (11)SC 175, it has been extracted below:- "13. In the said decision reported in JT 1996 (11)SC 175, the Apex Court has observed as under:- "It is fairly settled legal position that at the time of taking cognisance of the offence, the Court has to consider only the averments made in the complaint or in the charge-sheet filed under Section 173, as the case may be. It was held in State of Bihar v. Rajendra Agrawalla, JT 1996 (1) SC 601 : (1996) 8 SCC 164, that it is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing the process, to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters. If it is a charge-sheet filed under Section 173 of the Code, the facts stated by the prosecution in the charge- sheet, on the basis of the evidence collected during investigation would disclose the offence for which cognisance would be taken by the Court to proceed further in the matter. Thus, it is not the province of the Court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not. The learned Judge, therefore, was clearly in error in attempting to sift the evidence with reference to the averments made by the respondent in the counter- affidavit to find out whether or not offence punishable under Section 406, IPC had been made out". 7. The decision reported in 1998 Cri. LJ 4333 was also relied upon and it has been held that the Magistrate at the stage of Section 202 Cr.P.C., enquiry is to see prima facie case and not to appreciate the evidence and also the sufficiency of the evidence for the purpose of conviction. 8. In the considered opinion of this Court the ratio laid down in the above cited decision is squarely applicable to the facts of this case. A perusal of the complaint coupled with the materials available on record would show that there is a prima facie case and the complainant was subjected to some form of harassment and therefore, the trial Court should have taken the complaint on file and issued summons to the accused. https://hcservices.ecourts.gov.in/hcservices/ 3 9. In the result, the Criminal Revision is allowed and the order dated 04.09.2010 made in Cr.M.P.No.787 of 2010 is set aside and the Court of Chief Judicial Magistrate, Karur is directed to take the complaint filed by the complainant on file and issue summons to the accused. 10. It is made clear that the findings/observation made herein only for the purpose of disposal of this revision and this Court has not touched upon the merits of the case to be projected by the complainant as well as the defence to be projected by the accused. akv Sd/- Deputy Registrar[Accounts] /True copy/ Assistant Registrar To 1. The Chief Judicial Magistrate, Karur. 2. The Inspector of Police, Thogaimalai Police Station, Kulithalai Taluk, Karur District. 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Crl.R.C.(MD)No.206 of 2011 Dated:16.06.2011 3P/4C RPB 05.07.2011 https://hcservices.ecourts.gov.in/hcservices/