1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.11.2011 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN Crl.R.C.(MD) No.298 of 2011 and M.P.(MD) No.2 of 2011 M.Santhanakrishnan ...Petitioner/De-facto Complainant Vs. 1.Jeyakumar . . . 1st Respondent /Petitioner /Accused No.1 2.The State rep.by Sub-Inspector of Police, South Police Station, Thanjavur. . . . 2nd Respondent/Respondent /Complainant Criminal Revision Case is filed under Section 397 read with Section 401 of Criminal Procedure Code, praying to call for the records relating to the case in S.T.C.No.427 of 2009 on the file of the Court of the Judicial Magistrate No.I, Thanjavur, and set aside the order dated 21.04.2010 in Cr.M.P.No.413 of 2009 in S.T.C.No.427 of 2009 on the file of the Court of the Judicial Magistrate No.I, Thanjavur. For petitioner : Mr.C.Padmaraj For Respondents : Mr.A.Arun Prasad for R1 : Mr.A.P.Balasubramani Public Prosecutor for R2 O R D E R This revision has preferred under Section 397 r/w Section 401 of Criminal Procedure Code, challenging the order dated 21.04.2010 made in Cr.M.P.No.413 of 2009 in S.T.C.No.427 of 2009 on the file of the learned Judicial Magistrate No.I, Thanjavur, whereby the first respondent therein/A1 was discharged from the charges levelled against him. 2. Heard the learned Counsel for the Petitioner/De-facto complainant and the learned Counsel appearing for the first respondent and also the learned Public Prosecutor appearing for the second respondent. 3. Mr.C.Padmaraj, learned Counsel appearing for the revision petitioner/de-facto complainant would submit that based on the complaint given by the de-facto complainant, the case was registered against the first respondent herein/A.1 and the co-accused under Sections 147,448 and 323 IPC, however, the Court below without considering that there is prima facie case made out against the first respondent/A1 has discharged him from the charges. https://hcservices.ecourts.gov.in/hcservices/ 2 4. Per contra, Mr.A.Arun Prasad, learned Counsel appearing for the first respondent / A1 submitted that no prima facie case has been made out against first respondent / A1, hence he was discharged by the Court below properly. Learned Counsel for the first respondent / A1, also drew the attention of this Court to the copy of the complaint given by the de- facto complainant, wherein the de-facto complainant has stated that on 02.04.2009 at about 21.00 Hours, the first respondent / A1 along with the other three named accused and two others, trespassed into the house of the de-facto complainant, a retired Sub-Inspector of Police, abused the de-facto complainant and his wife and the co-accused attacked the de- facto complainant and his wife by hands and legs. 5. It is not in dispute that there is no specific allegation against the first respondent herein so as to consider whether he had manhandled or attacked either the de facto- complainant or his wife along with other accused. As per the copy of the statement given by the de facto- complainant, recorded under Section 161 (3) of Criminal Procedure Code, hence, he has stated that only four persons had trespassed into his house including the first respondent /A1. 6. Learned Counsel appearing for the first respondent would submit that the de facto- complainant has specifically stated in his complaint that four named accused and two other persons entered into his house and attacked him, so as to attract Section 147 IPC. However, in his statement recorded under Section 161(3) of Code of Criminal Procedure, he changed his version and stated that only four named persons had entered into his house including the first respondent. As per the statement recorded under Section 161(3) of Code of Criminal Procedure, it is clear that no offence was made out punishable under Section 147 of Indian Penal Code, since to attract the section, the offence could have been committed by five or more persons. As per the statement there is no allegation against the first respondent / A1 so as to attract the penal provisions, under Sections 147 and 323 IPC and therefore, the only allegation available in the FIR as against the first respondent / A1 is an offence punishable under Section 448 IPC, which is not disputed by the learned Counsel for the petitioner / de-facto complainant and the Government Advocate. It is seen that originally, the first respondent was arrayed as A1, but subsequently, he has been transposed as A4 in this case. As contended by the learned Counsel for the first respondent herein, he is a practising lawyer and also the counsel for the other named accused in a case between the de-facto complainant and the co-accused. 7. Learned Counsel appearing for the revision petitioner / defacto- complainant would submit that there is evidence to show that the first respondent had entered into the house of the de-facto complainant and that could be construed as “trespass” and for the alleged trespass, there is materials in the complaint and in the form of statement recorded under Section 161(3) of Criminal Procedure Code. When the criminal charge is based only on the oral version and if it is self-contradictory, it would not be trustworthy to convict a person. 8. As contended by the learned Counsel for the first respondent / A1, there is no documentary evidence to establish the alleged offence of “trespass” by the first respondent herein and the trial Court has considered sincerely and strenuously the averments of the defacto- https://hcservices.ecourts.gov.in/hcservices/ 3 complainant in the complaint as well as the statement recorded under Section 161(3) of Criminal Procedure Code and find it reasonable to discharge the first respondent herein. There is no satisfactory reason as to how the de facto-complainant has stated in his complaint, that four named accused and two other accused had entered into his house, based on which, the F.I.R was registered and subsequently changed his earlier version, stating only four accused persons alone had trespassed into his house. 9. It cannot be treated as a mere contradiction, since the defacto- complainant is a retired Sub-Inspector of police having sufficient experience and knowledge in conducting criminal cases. Hence, the contradictory averments cannot be considered as a mistake crept in but it would show that only with an intention of making out case to attract Section 147 IPC, unlawful assembly, which requires five or more persons. The defacto-complainant has stated five named accused and two other persons in his complaint. However, in his statement, he has stated only four named accused including the petitioner herein, however, in his statement recorded under Section 161(3) of the Code of Criminal Procedure, the defacto-complainant has changed his version stating that only four persons had entered in his house along with the petitioner, hence, for the self-contradiction, there is no satisfactory explanation from him. 10. The de-facto complainant has further submitted that the first respondent herein had used filthy language against the de facto- complainant and his wife. However, in the statement recorded under Section 161(3) of Criminal Procedure Code, as well as in his complaint, the petitioner has not specifically stated as to what was the actual filthy language used by the petitioner. There is no specific allegation against the first respondent. There is no satisfactory explanation from the petitioner as to why there had been no specific allegation against the first respondent by stating the actual filthy language, used by him, though specific allegations are available against other accused. 11. Learned Judicial Magistrate, by the impugned order has specifically stated that there is no prima facie case made out against the first respondent, accordingly, he was discharged as per order dated 21.04.2010. 12. As discussed earlier there is no prima facie case made out against the first respondent under Section 147 IPC, since the de facto- complainant himself has stated that only four persons had entered into his house similarly there is no allegations against the first respondent herein that he had voluntarily caused any injury, so as to prosecute him under Section 323 IPC and that there is no specific allegation by the de facto-complainant to prosecute the first respondent herein under Section 447 IPC. 13. It is a settled proposition of law that at the time of deciding a petition seeking discharge, Court has to consider whether there is any prima facie case made out as per the complaint and the statement recorded under Section 161(3) of Criminal Procedure Code, apart from the materials available on record. At this stage, there is no scope for application of evidence. https://hcservices.ecourts.gov.in/hcservices/ 4 14. In the instant case, the de facto-complainant has stated in the complaint that six persons had trespassed into his house, however totally contrary to his complaint he has stated in his statement that only four persons trespassed into his house. The self-contradictory statement of the de-facto complainant not supported by any documentary evidence would show that his complaint is not trustworthy to make out any prima facie case against the first respondent herein, in the absence of any other legal materials available on record. It is an admitted fact that the first respondent herein, is a practising lawyer and there is a case between the de-facto complainant and the co-accused herein and the first respondent is the Counsel for the co-accused, that would probablise the case of the first respondent / A1, that with an ulterior motive, he has been arrayed as one of the accused in this case, solely based on the contradictory oral version of the defacto-complainant. 15. The averments made in the complaint and the statement recorded under Section 161(3) of Code of Criminal Procedure are two different self- contradictory versions of the defacto-complainant and the self- contradiction goes to the root of the prosecution case, so far as it relates to the first respondent herein is concerned, in the absence of any documentary evidence to support the prosecution case. 16. On the aforesaid circumstances, I could find no error or infirmity in the impugned order passed by the learned Judicial Magistrate No.I, Thanjavur, warranting any interference by this Court. 17. In the result, this Criminal Revision Petition is dismissed. Consequently, connected M.P.(MD) No.2 of 2011 is also dismissed. SD/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar To The Judicial Magistrate No.I,Thanjavur. +1 CC TO MR.M.SURI, ADVOCATE S.R NO. 37499 +1 CC TO MR. A. ARUN PRASAD, ADVOCATE S.R NO. 37518 Crl.R.C.(MD) No.298 of 2011 and M.P.(MD) No.2 of 2011 01.11.2011 gsr/tsvn PAM 12.03.2012/4C/4P https://hcservices.ecourts.gov.in/hcservices/