Chellachamy vs Mariapackiam

Thangamani, J.—Petitioner Chellachamy is the first accused in P.R.C. No. 4 of 1994 in the Court of the Judicial Magistrate at Mudhukulathur. It appears that a complaint was filed against him, his wife Mariammal and daughter Kavitha in Crime No. 238 of 1991 of Sayalkudi Police Station alleging that on the evening of 28.6.1991. Mariammal and Kavitha beat on the left side head of one Mariabagyam, wife of Thommmai Michael Cruse Nadar and at that time the present Petitioner Chellachamy caught hold of her tuft and caused injuries. Thereupon the injured shouted and when she was about to leave for the Police Station a1ong with her husband, Mariammal and the present Petitioner Chellachamy intercepted them and Chellachamy stabbed on the left thigh of Thommai Michael Nadar. Thommai Michael Nadar, who was admitted in the Government Hospital, Mudhukulathur on 28.6.1991. died on 14.7.1991. The Police investigated. On 15.4.1992 the Inspector of Police Law and Order incharge, Sayalkudi filed a chargesheet against the Petitioner, his wife and his daughter for the alleged offences under Sections 324, 323 and 341 I.P.C. This was taken on file as C.C. No. 1143 of 1992 in the Court of Judicial Magistrate, Mudhukulathur.

Thereafter on 24.2.1994 Maria Bagyam alias Bagyam wife of Thommai Michael Nadar preferred a private complaint before learned Judicial Magistrate, Mudhukulathur, impleading present Petitioner Chellachamy as A.l and Kavitha and Mariammal as A.2 and A3 respectively regarding the occurrence which took place on 28.6.1991. On the same day, learned magistrate recorded the sworn statement of the complainant Maria Bagyam and those of one Amirtham and one Sebastian. On 8.3.1994, the statement of Doctor Abdul Kutha, who had treated Thommai Michael Nadar at Government Hospital, Mudhukulathur, was recorded. The statement of another Doctor S. Nallamuthu who had conducted the autopsy on the dead body of Thommai Michael Nadar on 15.7.1991 was also recorded on 8.3.1994. In his order dated 17.3.1994 in Miscellaneous Petition No. 1468 of 1994 learned Magistrate found there was sufficient ground for proceeding u/s 202 Cr.P.C., and that the offence complained of was triable exclusively by the Court of Session and took the case against Chellachamy on file as P.R.C.4 of 1994 u/s 302 I.P.C., The case against the other two accused was taken on file u/s 323 I.P.C. And in this petition the said Chellachamy seeks to quash the proceedings against him in P.R.C. 4 of 1994 on the file of the Judicial Magistrate, Mudhukulathur by invoking the inherent jurisdiction of this Court u/s 482 Cr.P.C.,

Thiru T. Sudanthiram, learned Counsel for the quash Petitioner submits that in respect of the same occurrence the Inspector of Police, Sayalkudi Police Station has already on 15.4.1992 submitted his charge-sheet for alleged offences under Sections 323, 324 and 341 I.P.C. and the case is pending before the same court in C.C. No. 1143 of 1992. Now about 2 1/2 years later the present Respondent has come forward with this private complaint for an offence u/s 302 I.P.C. Learned Magistrate has erred in taking the complaint on file u/s 302 I.P.C. since no prima facie offence under that section is made out. The private complaint filed by the Respondent is to the effect that on 28.6.1991 at about 6 P.M. quash Petitioner Chellachamy stabbed at the junction of hip and left thigh of Thommai Michael Nadar. The latter was admitted in Government Hospital, Mudhukulathur. The wound became septic and his condition became serious. He was referred to Government Hospital, Ramanathapuram. On 14.7.1991 at 6.45 p.m. he died on account of the stab injury caused by the quash Petitioner. However, the statement of witness No. 3. Abdul Kutha, Civil Assistant Surgeon, Government Head Quarters Hospital, Ramanathapuram, recorded by learned Magistrate on 8.3.1994 disclosed that he had treated Thommai Michael Nadar in the hospital. The injury measuring 3 cm. x 4 cm. x 3 cm. was at the junction of left thigh and hip. After the admission of the patient in the hospital on 28.6.1991 proper treatment was given to him. He was put on anti-biotic His physical condition was quite satisfactory. As per the case sheet, on 12.7.1991, his general condition was good. On 13.7.1991 at 7.00 P.M., the Doctor then on duty suspected that he had symptoms of cardiac arrest. So he was sent to Headquarters Hospital. Ramanathapuram, where he expired on the next day. Ex.P.2 is the Case sheet. Ex.P.3. is the copy of the Accident Register. The next witness Dr. S. Nallathambi who had conducted autopsy on the dead body of Thommai Michael Nadar, states that Thommai Michael Nadar had a natural death. The postmortem certificate also gives the reason for death as natural cause. While so, it cannot be said that there was any scope for taking further proceedings.

Whereas Thiru B. Kumar, learned Counsel for the Respondent pleads that in the impugned order dated 17.3.94. learned Magistrate states that as per the case sheet, the wound became septic. The postmortem certificate does not give any specific cause such as heart attack, Renal failure, tuberculosis as the reason for the death. And it is nobody''s case that the deceased had any history of illness. Till one day prior to his demise his condition is reported to be satisfactory. If a normal person sustains such an injury and hospitalised and if he dies 17 days later in the absence of any specific cause like heart attack or renal failure the only possible inference is that death was due to the injuries sustained. And as per Explanation 2 to Section 299 I.P.C., where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. This factor cannot be washed away by mere statement in the post-mortem certificate that the death was due to natural cause.

Chapters XV and XVI of the Code of Criminal Procedure deal with preferring of complaint and commencement of proceedings before a Magistrate. u/s 200, Cr.P.C., a Magistrate taking cognizance of offence on complaint shall examine upon oath the complainant and the witness present, if any, and the substance of such examination shall be reduced to writing. If, after considering the statements on oath of the complainant and of the witnesses the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint u/s 203, Cr.P.C, Otherwise process would be issued to the accused. After taking cognizance of the complaint if it appears to the Magistrate that the offence is triable exclusively by the Court of Session, Section 209, Cr.P.C, ordains him to commit the case to the Court of Session. The provisions of the Code require that the Magistrate has to be satisfied that an offence is prima facie disclosed and that offence so disclosed is triable exclusively by the Court of Session. If no offence is disclosed, he may refuse to take cognizance of the offence or if the offence disclosed is one not triable exclusively by the Court of Session, he may proceed to deal with it under the other provisions of the Code. To that extent the committing Magistrate thus discharges the judicial function. He is not to commit the case mechanically, nor is he to commit the case as a matter of course, but he has to apply his mind to the materials placed before him to find out if there is any prima facie material as to warrant an order of commitment. At the stage of 202 Code of Criminal Procedure enquiry, what a complainant has to make out is such a sufficient ground. And in this case in the impugned order the Magistrate has taken the complaint of the Respondent as P.R.C.4/94 u/s 302 I.P.C., since the said offence is exclusively triable by the Court of Session. So we have to consider whether the opinion arrived at by the Magistrate that there were sufficient grounds for proceedings and his consequential taking cognizance of the complaint call for interference u/s 482, Cr.P.C.

Learned Counsel for quash Petitioner first cited Public Prosecutor v. Khaji Valli (1980 (Cri) M.L.J., 648) where a single Judge of the Andhra Pradesh High Court has pointed out that,

the language of Section 209, Cr.P.C., makes it abundantly clear that the Magistrate is not to act as an automation or a mere post-office for despatch of the case to the Court of Session merely because in the absence of the accused at the initiation of the proceedings, he was of the view that the offence in question was triable exclusively by a court of session.

In Prem Sukh Lal and Others Vs. The State, relied on by him a single Judge of Patna High Court has held that

A Magistrate acting u/s 209 has to look into the allegations against the accused with a view to find out as to whether the offence is one which is prima facie exclusively triable by the Court of Session. He should examine the materials on the record and if on such examination he is satisfied that the offence is one which is prima facie exclusively triable by the Court of Session then alone he should commit the accused to the court of Session.

Whereas learned Counsel for Respondent placed reliance in Dhanalakshmi V.R. Prasanna Kumar (A.l.R. 1990 S.C.494) where the Apex court has laid down that.

Section 482 empowers the High Court to exercise its inherent powers to prevent abuse of the process of court. In proceedings instituted on complaint, exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers u/s 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide frivolous or vexatious, in that event, there would be no justification for interference by the High Court.

So availability or not of prima facie material to constitute an offence u/s 302 I.P.C., is the crux of the controversy.

In Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, cited by learned Counsel for the Respondent it was held that the object of the examination of the complainant and his witnesses u/s 200 Code of Criminal Procedure is stated to be to ascertain whether there is a prima facie case against the person accused in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person. Such examination is provided therefore to find out whether there is or not sufficient ground for proceeding. u/s 203, he may dismiss the complaint; if after taking the statement of the complainant and his witnesses and the result of the investigation if any u/s 202, there is in his judgment no sufficient ground for proceeding. The words sufficient ground used also in Section 209 have been construed to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit and not sufficient ground for the purpose of conviction. As per the scheme of Section 200 to 203 the enquiry envisaged there is for ascertaining the truth or falsehood of the complaint, that is for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. The test at the stage of Section 202 is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Where there is prima facie evidence even though the person charged of the offence in the complaint might have a defence, the matter has to be left to be decided with an appropriate forum at the appropriate state and the issue of process could not be refused. Unless the magistrate finds that the evidence led before him is self contradictory or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case.

In Mariappan v. Pannerselvam (1990 L.W. (Crl.) 141) Padmini Jesudurai, J. has held that "at the stage of Section 203 the court is required merely to find out whether there is any material to issue process to the accused and whether the averment made, constitute any offence calling for taking the case on file. At this stage court is not required to assess the evidence and consider the probabilities or improbabilities of the versions of the complainant. Taking the averments at their face value, the court without adding or subtracting, will have to find out whether the ingredients of any offence are made out and if so, the court has to take the case on file."

In Francis v. Shivaji and Company (1974 T.L.N.J.,223) in an action for compensation u/s 110-A of the Motor Vehicles Act, the victim immediately after the accident held the right part of the stomach on account of pain. He was taken to the hospital, where it was found that there were some multiple abrasious on the lower limb of the body. As nothing serious was suspected, he was merely treated as an out-patient. He was attending the hospital for some days as an out-patient and receiving treatment for the external injuries. On the fifth day he went to the hospital complaining stomach pain. He was admitted as an in-patient on that day itself. The next day, he developed stomach pain. Five days later an operation was performed and the abdomen opened. The greater omentum was covering up loops of intestine going down to pelvis causing an obstruction. On exploration it was found that there was a pelvic abscess and the appendix was lacerated and hanging loose in the cavity. The appendix was removed. He died of peritonitia one day later. The question arose whether the appendicitis which developed was the result of internal causes or the result of the external impact which he received at the time of the accident. The cumulative effect of the expert evidence is that as a result of the direct hit registered by a motor vehicle upon the outside of the abdominal wall of the victim, the appendix must have become lacerated ultimately leading to the appendicitis and peritonitis. The victim was a healthy young man. He had a well nourished body. He was just 22 years old and was a sub-inspector under training. A Division Bench of this Court took the view that if the health condition of his body before the accident is established by proof, the court would be right to presume that the same healthy state continued to exist as before. If such a healthy man received a hit upon the stomach during the accident, developed pain immediately and then 4 days later, developed temperature leading ultimately to an operation for appendicitis and his death due to the peritonitis, the probabilities are that appendicitis in his case was the result of the violent external hit which his appendix received at the time of the accident. In the absence of any evidence regarding the previous health history of the victim and having regard to the common course of natural events the court may reasonably presume that the death of the deceased was the result of the appendicitis caused by the accident.

However, in the instant case, the complaint as well as the statements of witnesses recorded and the documents produced do not prima facie indicate that death of Thommai Michael Nadar was due to the stab wound received by him on 28.6.1991. Instead, the positive opinion expressed in the post-mortem certificate is that he died of natural cause. The version of the Doctor who gave the treatment is that he was put on anti-biotics and until one day prior to his demise his general condition was satisfactory. He was referred to the Government Head-Quarters Hospital at Ramanathapuram only on noticing symptoms of cardiac arrest. Learned Magistrate has found that as per Ex.P.4. case sheet the wound became septic and never healed. So death due to the injuries received could not be ruled out. And on that basis there is prima facie material to make him liable u/s 302 I.P.C. We have to bear in mind that though there are specific allegations in the complaint regarding the occurrence wherein Thommai Michael Nadar received stab wound in the hands of revision Petitioner, in view of the opinion expressed in the post-mortem certificate that the patient had died of natural causes, we cannot say that the ingredients to constitute an offence u/s 302 I.P.C. are available on the face of the records. True, at this stage we are not concerned whether the revision Petitioner has a good defence in the trial. We cannot now proceed to analyse the case of the complainant in the light of all probabilities. Nor can we determine whether conviction could be sustainable. But in the absence of absolutely any nexus shown prima facie between the injury inflicted on Thommai Michael Nadar on 28.6.1991 and his death on 14.7.1991, the view taken by learned Magistrate is unsustainable.

In the result, the Criminal Original petition is allowed and the judgment dated 17.3.1994 passed by learned Judicial Magistrate in M.P. No. 1468 of 94 on his file that there was sufficient ground for proceeding u/s 202 Cr.P.C., and his taking on file the complaint against the revision Petitioner as P.R.C. No. 4 of 1994 u/s 302 I.P.C., are set aside.