IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.543 of 2007 Balu ... Petitioner vs. 1.Jayaganthan 2.Gnanamani 3.Manoharan 4.The Inspector of Police, Maduravoyal Police Station, Chennai-600 095 ... Respondents Petition filed under Section 397 r/w 401 of Cr.P.C. against the judgement in S.C.404/06 dated 5.1.2007 passed by the Additional District Sessions Judge, IV Fast Track Court, Poonamallee. For Petitioner : Mr.Sankarasubbu For Respondents : Mr.R.Muniyapparaj,G.A. ORDER Challenging and impugning the judgement dated 5.1.2007 passed by the Additional District Sessions Judge, IV Fast Track Court, Poonamallee, this criminal revision case is focussed. 2. Compendiously and consciously, the facts absolutely necessary and germane for the disposal of this criminal revision case would run thus:- (a) The police laid the police report in terms of Sec.173 of Cr.P.C. as against the respondents 1 to 3 herein/accused for the offences under Sections 452 and 427 r/w.34 of IPC and 3(1) of T.N.P.P.D.L.Act. Inasmuch as the accused pleaded not guilty, trial was conducted. (b) During enquiry, on the side of the prosecution, P.Ws.1 to 7 were examined, Exs.P1 to P7 and M.O.1 were marked. On the accused's side, no oral or documentary evidence was adduced. (c) Ultimately, the trial Court acquitted the accused. 3. Animadverting upon the said acquittal, the de-facto complainant-P.W.1 filed this revision on various grounds, the warp https://hcservices.ecourts.gov.in/hcservices/ and woof of them would run thus: The trial Court without considering the evidence of P.Ws.1 to 3-the eye witnesses, simply looked askance at their evidence and acquitted the accused. The reasonings given by the Magistrate that Section 3(1) of the T.N.P.P.D.L.Act would not come into operation is perverse for the reason that even if a private property is damaged by an individual, it would attract the said penal Section. Accordingly, the revision petitioner prays for setting aside the judgement of acquittal and for passing suitable orders. 4. Heard the learned counsel for the revision petitioner as well as the learned Government Advocate, who would submit that the State has not preferred any appeal. 5. Despite serving notice on R1 to R3/accused none appeared. 6. Heard the learned counsel for the revision petitioner, who would reiterate the grounds of revision and develop his argument to the effect that simply because there is delay on the part of the police in registering the FIR and that too, when they have taken time to conduct some enquiry, the genuineness of the complaint lodged by P.W.1 should not have been rejected by the trial Court. In a cryptic manner the Magistrate recorded as though the evidence of P.W.3 is unbelievable. The ratiocination adhered to by the Magistrate that Section 3 of T.N.P.P.D.L. Act is not applicable is perverse. 7. Whereas, the learned Government Advocate would submit that the reasonings given by the Magistrate for not applying Section 3 (1) of the T.N.P.P.D.L. Act is not tenable as it is quite antithetical to the well known interpretation of statutes. 8. At the out set itself I would like to point out that the Magistrate misunderstood the scope and ingredients of Section 3 of the T.N.P.P.D.L. Act. 9. A plain reading of the said Tamil Nadu Property (Prevention of Damage & Loss) Act coupled with the objects and reasons which existed anterior to the amendment Act 46 of 1994 Act, would reveal that the legislators intended to punish offenders who caused damage to the public property and even before such amendment there is nothing to indicate that such infliction of damage to the public property should be based on political motive or it should occur during any political upheaval or demonstration or rioting. If before such amendment Act , even if an individual to achieve his object or motive caused mischief to the public property, it was punishable and it was not contemplated therein that such infliction of mischief should be due to political motive etc. The amendment Act 46 of 1994 would enlarge the scope of the Act that even if any individual inflicts injury to the property of a private party having any motive, the penal provisions of Section 3 of the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Property (Prevention of Damage & Loss) Act would be attracted. A plain reading of Section 3(1) of the Act clearly contemplates the term 'whoever', which means that if any individual perpetrates any mischief to the property worth more than Rs.100/- of any person and not necessarily the Government property, it would be within the mischief of Section 3(1) of the Tamil Nadu Property (Prevention of Damage & Loss) Act. 10. I would like to extract hereunder Sections 2(4) and 3(1)of the Tamil Nadu Property (Prevention of Damage & Loss) Act. "Section 2(4): "property" means any property movable or immovable or machinery owned by or in possession of, or under the control of any person including, [a] the Central Government; or [b] the State Government; or [c] any local authority; or [d] the Tamil Nadu State Electricity Board; or [e] any University in this State; or [f] any co-operative society including a land development bank registered or deemed to be registered under the Tamil Nadu co-operative Societies Act, 1983 [Tamil Nadu Act 30 of 1983]; or [g]any corporate body constituted under any Act passed by Parliament or the Legislative Assembly of this State; or [h] any other corporation owned or controlled by the Central Government or the State Government; or [i] any institution, concern or undertaking or, [j] any company Section 3(1): Punishment for committing mischief in respect of property:- Whoever.- [i] commits mischief by doing any act in respect of any property and thereby causes damage or loss to such property to the amount of one hundred rupees or upwards; or [ii] ..... [iii] ....." 11. As such , a cumulative reading of Section 3(1) read with Section 2(4) of the Tamil Nadu Property (Prevention of Damage & Loss) Act would clearly indicate and exemplify that the accused and the injured may be two individuals, so to say the person who perpetrates the crime and the person who sustained damage can be https://hcservices.ecourts.gov.in/hcservices/ private parties and nowhere it is stated that such infliction of crime should be during the time of any rioting or politial upheaval or demonstration, dharna etc. As such I hold that in the facts and circumstances of the case, the prosecution was justified in pressing into service Section 3(1) of the said Act. 12. No doubt earlier the said Tamil Nadu Public Property (Prevention of Damage and Loss) Act has been meant for protecting the public properties and if there is any damage to the public properties during any political upheaval, demonstrations etc., the accused are punishable. But subsequently, the amendment is so wide enough to include even damages caused to the private individual party by another private individual. As such, the finding of the Magistrate on that count is untenable and perverse, warranting interference in this revision. 13. As appositely and correctly highlighted by the learned counsel for the revision petitioner, P.W.3 is not stated to be an interested witness. He, without any embellishment, detailed and delineated, narrated and portrayed as to what happened actually. According to him A1 to A3 joined together in furtherance of their common intention, damaged the hut of P.W.1 and during cross- examination also apparently nothing has been highlighted as to whether his evidence is fraught with any falsity etc. As such, the Magistrate should not have in such a cryptic manner, in one line simply brushed aside the evidence of P.W.3 as one not believable. Ofcourse, P.W.2 is the close relative of P.W.1. But the evidence of P.W.3 coupled with the evidence of P.W.1 should have been considered by the lower Court in the proper perspective and that too, keeping in mind the dictum of the Honourable Apex Court that the evidence of relative witness should not be discarded as such, if it is otherwise blemishness and free from doubt. 14. At this juncture, my mind is reminiscent and redolent of the following decision of the Honourable Apex Court: (2009) 2 Supreme Court Cases(Cri) 389 – GURDEV RAJ VS. STATE OF PUJAB, an excerpt from it would run thus: "14. It also cannot be said that since Rajani Bala and Pooja were closely related to deceased Bhushan Lata, their version could not have been believed. In our opinion, the trial Court was wholly right in holding that Rajani Bala and Pooja were no doubt relatives of the deceased but they could not be termed as 'interested' witnesses. The court was also right in further stating that close relatives would be most reluctant to spare the real assailant and would falsely implicate an innocent person. After seeing the demeanour of witnesses, the trial Court believed both of them. The High Court again considered their evidence and confirmed the finding recorded by the trial Court. We see no infirmity in the https://hcservices.ecourts.gov.in/hcservices/ approach of the trial court as well as of the High Court. It, therefore, cannot be said that by believing these two witnesses, any illegality was committed by the Courts below." 15. It is therefore clear from the Honourable Apex Court's decision on relative witness that simply because certain witnesses are related to the victim there is no hard and fast Rule that their evidence should be discarded 16. P.W.6 the police official concerned candidly and categorically admits that soon after the occurrence, i.e. on 11.3.2004 itself P.W.1 lodged the complaint with him and it is because of the fact that the police made some preliminary enquiries that there occurred the delay in registering the FIR. In such a case, P.W.1 cannot be blamed for the delay. But the Magistrate took it otherwise. 17. From the fact that the coconut leaves removed from the roof of P.W.1's house were not found in damaged condition, it cannot be construed as a weak point on the prosecution side. I am fully aware of the fact that the revisional Court should not normally re-evaluate the factual evidence. But the reasonings given by the Magistrate in his judgement, inch by inch militate against the normal interpretation of evidence and approach, which is expected of the trial Court and as such, the revisional jurisdiction of this Court is attracted. 18. At this juncture, I call up and recollect the following decisions of the Honourable Apex Court: (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 https://hcservices.ecourts.gov.in/hcservices/ 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." 19. A bare perusal of the above decisions would exemplify and demonstrate that the High Court, while exercising its revisional jurisdiction is not expected to interfere with the finding of fact arrived at by both the Courts below simply because one other view is possible or a different view could be taken. The mandates of the Honourable Apex Court could be applied to the facts of this case and accordingly interference is warranted. 20. In the result, the judgement of the lower Court is set aside and the matter is remitted back to the Magistrate Court to consider the matter in the light of the discussion supra and the precedents and the appropriate provisions of law. I make it clear that simply because the matter is remitted back to the trial Court it should not be taken as an indication that the case has been remitted back only for the purpose of recording conviction and for imposing sentence. Untrammelled and uninfluenced by the observations made by this Court in this order, the Magistrate is at liberty to decide the case independently and come to a conclusion as per law. The Magistrate is expected to dispose of the matter within three months from the date of receipt of copy of this order. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar msk https://hcservices.ecourts.gov.in/hcservices/ To The Additional District Sessions Judge, IV Fast Track Court, Poonamallee. Crl.R.C.No.543 of 2007 MBS {CO} TP/28.8.2009. https://hcservices.ecourts.gov.in/hcservices/