IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.12.2011 CORAM: THE HON'BLE MR.JUSTICE C.T. SELVAM Crl.R.C.No.237 of 2011 Major K. Mathews ... Petitioner/ Complainant Vs. 1.S.Manivannan 2.K.Chandrasekaran 3.K.M.Varghese 4.C.Vijayakumar 5.T.V.Ganesh .. Respondents/ Accused Criminal Revision filed u/sec 397 of 401 of the Crl.P.C. against the judgment dated 01.02.2011 made in Crl.M.P.No.2297 of 2010 by the learned Chief Metropolitan Magistrate, Egmore, Chennai. For Petitioner : Mr.Major K. Mathews Party-in-person For Respondents : R1 withdraw appearance filed Mr.M.Vijayakumar for R2 Mr.C.Vijayakumar for R3 Mr.R.Rajaram for R4 Mr.T.V.Ganesh party-in person for R5 O R D E R This revision arises against the order of the learned Chief Metropolitan Magistrate, Egmore, Chennai passed in Crl.M.P.No. 2297 of 2010 on 1.2.2011. The petitioner preferred a complaint against five persons alleging commission of offences under Sections 120-(B), 166,167,182,192,196,201,203,211,217,220,323,500,506(i),506(ii) r/w.34 IPC. In the complaint the petitioner has informed of being 72 years old and very ill, belonging to the affluent section of society and of having carried out great deeds as the President of a Resident Welfare Association. It informs of his disciplined and transparent functioning having displeased the treasurer and fellow unscrupulous comrades who were highly jealous of him. It informs of his having https://hcservices.ecourts.gov.in/hcservices/ expelled the erring persons, his re-election as the President in September 2000 and of the disgruntled group having entered into an agreement to commit various major offences against him in pursuance of criminal conspiracy. It informs of the rival faction having conducted a meeting on 01.04.2001, of their expelling him and the general secretary and electing new office bearers, imitation of the letter head of the Association and parallel functioning. The complainant filed a suit as the President of the said association challenging the legality of the meeting held and other proceedings of the other group. He had preferred four criminal cases as party in person before the IX Metropolitan Magistrate Court, Chennai under various sections of the IPC including section 120 B which were pending final disposal. The first accused and his father are also accused in those cases. This is the starting point. The third accused is none other then the brother of the complainant. In very uncharitable terms several allegations are made against the third accused and one other brother of the complainant. Very many civil and criminal actions between the complainant and the third accused and the other brother are informed. The fourth accused is an advocate who has appeared on behalf of the third accused and the other brother in cases against the complainant. He is defined as a 'daredevil advocate belonging to the CITU' who 'contrary to the ethics professional and other conduct expected of a lawyer became the mouthpiece of the accused persons and has since then been the legal brain and motivating factor behind all the illegal acts' of the third accused and the other brother both within and outside court. A criminal conspiracy between the complainant's brothers and the fourth accused in engaging a 'notorious daredevil drunkard advocate' to assault him while he was in court, which incident was recorded by the concerned Magistrate, and which gave rise to the complainant preferring complaints to the Bar Council both against the fourth accused as also another is informed. The complainant further informs that 'in pursuance of the criminal conspiracy' 'the fourth accused instigated his clients to abuse insult and ridicule him and to make an attempt' on his life by pushing him down the staircase when he was returning home from court, of the registration of a case in crime number 39 of 2002 by the B4 High Court police station for offences under section 323 (ii) and 506 (i) IPC against the third accused and the other brother as also the filing of charge sheet therein. The complainant had suffered severe injuries. The complainant then brings in the fifth accused. He informs the deterioration for the worse after the success of his brother, the third accused as also the other brother 'under the legal guidance and physical support of their defence lawyer the fourth accused in establishing closer ties with the fifth accused the city public prosecutor in January 2003'. It is informed that the nexus between the accused 3 to 5 'emboldened the third accused to hotly pursue the ultimate object of the criminal conspiracy for the earliest elimination of the complainant at any https://hcservices.ecourts.gov.in/hcservices/ cost by all illegal means and methods'. The complaint goes on to inform of further improper recourse to court proceedings by the third accused and the other brother and the obtaining of an injunction against him ex-parte 'in collusion with the Munsif concerned' and of the plaintiffs having allowed the suit to be dismissed for default, pursuant to his hot contest. The complaint then informs of his success in the suit against the rival group of the Association, of it being a crushing blow on them and therefore the father of the first accused, who had two sons in the city police as also another IPS officer relative, 'refused to be subdued and take the defeat on the legal front gracefully'. With the backing of the father of the first accused, who was 'old and sick', the first accused and the other accused 2 to 5 became all the more furious and emboldened and were itching for retaliatory strikes against the complainant as he considered himself to be above the law and behaved like a law unto himself as he was treated like that 'by the second accused herein on earlier complaint lodged by the complainant'. The complainant then informs of the third accused and the other brother coming to know of the litigations, both civil and criminal, between the complainant and his enemies and the enlargement of criminal conspiracy by their frequent visits to the house of the first accused and his father and various attempts at tarnishing his image with a view to have his arms licence cancelled so as to make him an easy target for the future attempt on his life in pursuance of the ongoing criminal conspiracy against him. The complainant then informs of an attack on him by the first accused on 12.09.2004 of his having preferred a complaint there regards and of partisan action by the police, emboldening the first accused and his father to indulge in rowdyism . It has become necessary to recall the above as such is the manner in which the complainant seeks to establish the nexus between the accused persons. According to the complainant, 'first accused was the chosen muscle man of all the co-conspirators to commit the overt act on 21.05.2005 at about 19.15 hours in front of the house of the complainant in pursuance of the existing criminal conspiracy and the agreement arrived at to commit various cognizable offences'. The 2nd accused Inspector of Police (L&O) was/is a powerful tool in the hands of the 5th accused 'like the legendary Tanjur Doll selected in pursuance to the conspiracy to be used against the complainant for his illegal arrest, detention in the police station from the night of 21.05.2005, fabrication of false records, denial of medical aid, violation of Section 667 of the Tamilnadu Police Standing Orders, deprivation of his liberty and rights guaranteed under the constitution, subjecting him to degrading and inhuman treatment' contrary to the directions of the Supreme Court. The 3rd accused, brother of the petitioner is the 'kingpin who hatched the criminal conspiracy against the complainant with the other accused persons herein in view of his never ending virulent enmity against him'. He https://hcservices.ecourts.gov.in/hcservices/ is an embodiment of devilish thoughts and deeds from his early days. The 4th accused 'is the mouth piece of all the other accused persons. He is the legal brain behind all the illegal activities of his said clients K.M.Varghese (A3) and A.M.Samuel and through him' only A5 the city Public Prosecutor could be one over to their side right from the days of the proceedings in transfer Crl.O.P.Nos.9988/2002 to 9992/2002. According to the complainant, the 5th accused 'The City Public Prosecutor acted and conducted himself under the colour of his office as a co-conspirator as well as the legal brain of the criminal conspiracy hatched between himself and other accused persons herein against the complainant'. A case stands registered in Cr.No.675 of 2005 against the complainant on the file of the R5 Virugambakkam Police Station Chennai, the station at which the second accused is the Inspector of Police (L&O). The case was registered for offences u/s. 341,307 IPC r/w.30 of the Arms Act 1959 and is now pending trial in S.C.No.30/2006 before I Additional Sessions Judge, Chennai. In the words of the petitioner. "17. As a result of meeting of minds and in pursuance to the agreement arrived at among all the conspirators and in furtherance the criminal conspiracy and their common intention, on Saturday, the 21st day of May 2005 at about 19.45 hrs, while the complainant was watering 'the flowering plants' maintained by him on either side of the road in front of his above house by taking out a hose from his car shed, the A1, S.Manivannan, s/o. M.P.Subramaniam, aged about 34 years, weighing about 95 kg, residing a No.6, Second Main Road, Amnnaji Nagar, K.K.Nagar West, Chennai-600 078 arrived at the spot where the complainant was standing, with a small Pomeranian dog and picked up quarrel with the complainant. At that time, as usual, the complainant had his Revolver with him concealed from public view by way of abundant caution as he was used to even when going for very early morning walk with his wife daily as he was apprehending danger to his life at any time from his enemies or through their hirelings. Seeing the altercation and the dog in front of the house, the two Alsatian dogs (German Shepherds)of the complainant started barking in a highly agitated manner from the first floor balcony of the complainant. To put an end to the commotion, the complainant asked Manivannan to move away from in front of his house. At this, the A1 herein, S.Manivannan abused the complainant in filthy language. When the complainant remonstrated,S. Manivannan caught hold of the neck of the complainant with the shirt and pushed him down with all his brute https://hcservices.ecourts.gov.in/hcservices/ force. The complainant fell flat on the road on his back and sustained internal injuries in his lower back, the left side of the neck and the occipital area of the head as there were few broken bricks on the road a re-laying of the platforms by the Corporation was under way. While so, S.Manivannan kicked the complainant in his abdomen with his right foot. The complainant got up with great difficulty and in a dazed condition. Seeing Manivannan again aiming a blow on the head of the complainant and apprehending grievous hurt or imminent danger to his life, on such grave and sudden provocation, he took out the revolver from his pants pocket and fired a single shot in self defence at his raised right hand. S. Manivannan appeared to have injured his right forearm as he started walking away but still threatening with dire consequence through Police with the influence of his two policemen brothers and Mr.R.Sekar, I.P.S. Had not the complainant used such minimum force in self defence at that juncture as a deterrent to incapacitate him from hitting the complainant on his head, as stared above, the A1, S,Manivannan would have certainly caused grievous hurt to A1, S.Manivannan as evidenced by the fact that he did not fire a second shot at him even when there were five more cartridges in the chamber of the Revolver. Further, even when the complainant fired a single bullet in self defence at the spur of the moment under sudden and grave provocation and had the accuracy to hit the target even in the night, namely, the aggressors offending right hand, he did not aim or fire at any vital parts of A1, Manivannan's body, such as head, neck, chest or abdomen which would prove that he had no intention to use more force than what was absolutely necessary to deter him from hitting the complainant on his head. The complainant had no recourse to seek police help in view of the fact that the attack was sudden and in secluded area and hence there were no witness or witnesses to the said occurrence to seek their intervention. 18. The A1, S.Manivannan could have easily seen the complainant standing in front of his house and watering the plants either from the junction of the 1st cross street with 3rd main road or from the junction of the 2nd cross street with 3rd main road. He had no necessity whatsoever to come to the spot where the complainant was standing except for the purpose of endangering his life on account of the existing https://hcservices.ecourts.gov.in/hcservices/ criminal conspiracy with other accused and his grave enmity. The complainant had never before seen A1, S.Manivannan either in the 3rd main road or on any other road of Annaji Nagar walking with a dog during the last more than 8 years. 19. Soon after the said occurrence, the complainant went inside his house and saw that his wife, his 3rd daughter-in-law with an infant and her mother's sister were watching a Malayalam programme not knowing as to what had happened down below on the road. The complainant lodged an FIR over the telephone with the A2 herein, the Inspector of Police (L&O), R- 5, Police Station. Soon after, the A2, Inspector of Police, (L&O), HC Ramamoorthy and others came to the occurrence spot and after preliminary enquiry, came up to the first floor residence of the complainant, took possession of the Revolver, five live cartridges, one empty case and the Arms Licence. After accepting the hospitality extended to the A2, the Inspector of Police and others, he allowed the complainant to take his insulin injection, dinner followed by other usual medicines and asked the complainant to accompany him. On arrival the police station, the complainant was met by the concerned Asst. Commissioner of Police and the Deputy Commissioner of Police and they inquired about the occurrence. As the complainant was suffering from severe back pain, neck pain, headache and periodic bouts of chest pain, requested all the said officers to arrange for immediate medical treatment but the same was repeatedly ignored. The complainant was detained in the police station from about 20.15 hrs on 21.05.2005 and all through the night and the next day up to about 15.30 hrs or so on 22.05.2005. As the complainant was unable to lie down or walk properly he had not even a wink of sleep till then. He could not take his daily injections and various other medicines or the prescribed diet. The complainant suffered all the physical and mental trauma as his personal liberties were trampled upon with impunity and the principal brain behind all the illegality as well as cruelty was none other than the CPP, the A5 herein on account of his virulent personal enmity against him coupled with the common intention and on account of the criminal conspiracy among his co-conspirators, the A1 to A4. 2. The petitioner terms his arrest as illegal and attributes knowledge to the second accused of the ongoing feud between him and https://hcservices.ecourts.gov.in/hcservices/ the rival faction in the welfare Association, in which the first accused and his father were involved and of their being the accused in three Private complaints where the complainant appears as party– in-person. The very arrival of the first accused in front of the house of the complainant at about 17.40 hours on 21.05.2005 is informed to be with deliberate intent of committing major offences whereby he was provoked resulting in his justified use of his right of Private defence by opening fire with his licensed firearm. The complainant then argues that his arrest was totally unjustified and illegal. The complaint alleges that in causing his arrest the 2nd accused acted in contravention of law and on the vindictive directions of the 5th accused the City Public Prosecutor, in pursuance of the agreement reached between the accused persons in view of the continuing criminal conspiracy and their common intention, in particular, to commit various cognizable offences against the complainant. He informs that a complaint preferred by him over his residential telephone was ignored and no case was registered against the real aggressor, the 1st accused. This again is said to have taken place under the vindictive instructions of the 5th accused on account of his virulent enmity against the complainant from January 2003 and the existing criminal conspiracy. Informing violation of the directions of the Apex Court in D.K.Basu’s case. The complainant then proceeds to inform the other hardships suffered by him, his detention in jail and other wrong doings. Thereafter the objections of the fifth accused/City Public prosecutor to grant of bail to the complainant and his insistence on conditions, when bail was granted are complained against. The complainant informs that while undergoing inpatient treatment the complainant had presented a private complaint against the first accused to the Superintendent of the central prison on 27.05.2005 for onward transmission to the IX Metropolitan Magistrate, Saidapet, Chennai praying for a direction to the Inspector of Police (L&O) u/s.156 (3) Cr.P.C to register a case against the 1st accused. He informs of learning that the same had not reached the magistrate and that he addressed a letter under RPAD to the Superintendent of the Central prison on 20.06.2005 with a copy of the private complaint dated 27.05.2005, requiring an enquiry as to whether the complaint had been forwarded to court and if not, cause forwarding of the same immediately. Finally the complaint informs of his having preferred a complaint before the State Human Rights Commission against the second accused, two of his subordinates and the fifth accused for human right violations and of learning on enquiry that the complaint had been closed with direction to the complainant to approach the competent court of law in view of the nature of allegations. The complainant has informed of awaiting the order of the commission by post. https://hcservices.ecourts.gov.in/hcservices/ 3. The complainant and five of his witnesses were examined. The Chief Metropolitan Magistrate by his order dated 01.02.2011 informed that the complaint had on earlier occasion been returned for want of sanction under section 197 Cr.P.C and on an order against him by the High Court, the petitioner had moved the Hon'ble Apex court which had remitted the matter to the trial court for passing fresh orders after consideration of the material on record informing that a criminal complaint could not be returned by the court but has either to be dismissed or entertained and that there was no finding that the acts complained of on the part of the accused were in discharge of their official duties. The Magistrate found that the allegations against accused 2,4 and 5 relate to the case which is pending on the file of the first additional Sessions Judge, City Civil court in SC.No.30/2006 and action against them could be taken only after completion of such case SC.No.30/2006 is the case in which the petitioner stands accused of offences under sec. 341,307 r/w.30 of the Indian Arms Act for the shooting incident in which A1 suffered injuries. The Magistrate however found a prima facie case made out against A1 for offences under section 323 and 324 IPC. Dismissing the complaint against the other accused on the reasoning that at that stage no prima facie case was made out against them, the magistrate took cognizance of offences under sections 323 and 324 IPC against the first accused and towards providing for trial for such offences along with the case in S.C.No.30/2006 issued summons to the first accused. It is such order of the Magistrate that is under challenge. 4. Petitioner took this court through the complaint and submitted that the same spelt out the commission of offences and no reason had been afforded by the Magistrate in passing the order under challenge. To point out poor conduct on the part of the 5th respondent he would refer to the examination of the first accused as P.W.1 in S.C.No.30/2006, wherein the court has recorded that upon a question put by it to the witness, the Public Prosecutor/R5 left the court hall in a huff resulting in an adjournment of proceedings. To substantiate his submission that his complaint was a counter case to the case pending trial in S.C.No.30/2006, he would refer again to the record of the evidence of the first accused wherein further proceedings were stopped in S.C.No.30/2006, informing that a special leave petition moved by the petitioner before the Apex court in relation to the same matter was pending and that the same was in respect of the counter case. He stated that there was no need for sanction under section 197 Cr.P.C in respect of prosecution against the fifth respondent/ public prosecutor as such respondent had not any duty to commit offence u/s.120 (B) IPC. He would contend that as his complaint was a counter case to case pending in S.C.No.30/2006, the Magistrate ought to have taken cognizance and committed his case to be tried along with SC 30/2006. He would then inform that the orders under challenge has not dealt with the third accused. Having https://hcservices.ecourts.gov.in/hcservices/ impleaded the respondents in the present proceedings, petitioner would contend that as neither cognizance nor issue or process stands effected against them, they ought not to be heard. 5. Learned counsel for the fourth respondent submitted that having acted maliciously and having impleaded them, the petitioner could not now be heard to say that respondents ought not to be heard. Reliance is placed on the judgment of the Apex court A.K.Subbiah and ors vs. State of Karnataka and others (1987) 4 SCC 557 wherein while dealing with subsection 2 of Section 401 Cr.P.C it has been observed as follows: "......Apparently this sub-section contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Section 401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceedings in the court below nor is expected at any stage even after the revision to be joined as party." It is submitted that though several sections of the IPC stand mentioned, a reading of the complaint does not inform the commission of any offence. The fourth respondent is the defence counsel of the third accused, the 5th respondent is the Public Prosecutor. They stand arrayed as accused merely because one has appeared against the petitioner on behalf of the other side and the other because he has, in his official capacity, opposed bail and other applications moved by the petitioner. 6. Learned counsel for the fourth respondent submitted that having exercised his discretion the Magistrate, while taking cognizance against the first accused thought it not appropriate to take cognizance against the other accused at this stage. His reasoning that the allegations against the other accused relate to the case pending in S.C.No. 30/2006 and action could be taken only after completion of proceedings therein is a reasonable exercise of discretion which could not be interfered with. In any event, the entire allegations in the complaint have no nexus whatsoever with the matter pending trial before the Sessions court and the entire action of the petitioner was vexatious and meant to harass the respondents. The conduct of the petitioner besides being scandalous is also https://hcservices.ecourts.gov.in/hcservices/ contemptuous and the petition ought to be dismissed with costs. 7. Learned counsel for the third respondent informs that the third respondent is the brother of the petitioner and is aged 81 years. The first accused is