Esthappanu vs State of Kerala and Others

D. Sreedevi, J.—This revision petition is directed against the order dated 21-4-1993 on M.P. No. 698 of 1993 of the Judicial First Class Magistrate, Perumbavoor. Petitioner is the complainant in the M.P. Respondents 2 to 4 are accused in the above case. Petitioner filed the above complaint under Sections 447, 427, 326 and 323 read with Section 34 of the Indian Penal Code.

The allegation in the complaint is that on 14-5-1992, when the father of the complainant went to his property, he saw respondents 2 to 4 trespassed into the complainant''s property and attempted to construct a fence encroaching into the property. The matter was immediately informed to the complainant. The complainant went to the spot and resisted the attempt. Respondents 2 to 4 pulled down the petitioner. The first accused inflicted a blow on the complainant with an iron rod. The other accused persons also participated in manhandling the petitioner. Petitioner sustained fracture to the ribs. Petitioner was then admitted to the Little Flower Hospital, Angamaly on the same day and he was treated there till 20-8-1992. He then informed the matter to investigation, the police referred the case. The complainant produced a list of witnesses and also wound certificate along with the complaint. The sworn statement was taken by the Magistrate. Two witnesses were also examined. But the Magistrate dismissed the complaint u/s 203, Cr. P.C. stating that the proper remedy of the complainant is to approach the Civil Court for appropriate reliefs. Aggrieved by the said order, the complainant has preferred this revision petition.

Heard the Public Prosecutor and the counsel for the revision petitioner.

Mr. N. Anil Kumar appearing for the revision petitioner submitted that the order of the Magistrate is illegal and unsustainable in law. The learned Magistrate has stated that there is no medical evidence to substantiate the case of the complainant and the wound certificate produced was not properly proved by examining the Doctor. u/s 202, Cr. P.C, the Magistrate cannot compel the parties to produce all evidence. It appears that the learned Magistrate has misunderstood the scope of Section 202, Cr.P.C. The object of Section 202, Cr.P.C. is to enable the Magistrate to form an opinion as to whether the process should be issued or not. At that stage what the Magistrate has to see is whether there is evidence in support of the allegation made in the complaint and not whether the evidence is sufficient to warrant conviction. The function of the Magistrate holding a preliminary enquiry is only to be satisfied that a prima facie case is made out against the accused on the materials placed before him by the complainant. The finding of the learned Magistrate that the complainant has not summoned the Doctor, who had issued the medical certificate, is not legal. The complainant has already produced the wound certificate, which shows that he had sustained injuries. His sworn statement was taken by the Magistrate. He has filed a list of witnesses. Thus, prima facie, it can be seen that there was some incident and that the complainant has sustained injuries in the incident. Therefore, the matter has to be tried by the learned Magistrate. It is true that the complainant has a right to file a civil suit to settle the dispute between the parties. The complainant has prima facie established that he has sustained injuries in pursuance of the alleged attack. If the allegations disclose a criminal offence, the complaint ought not to be dismissed even if a civil remedy is available. The action of the Magistrate in dismissing the complaint is not legal and proper. He ought to have proceeded with the complaint.

In the result, this Crl. R.P. is allowed and the order of the Magistrate is set aside and the matter is remitted back to him for trial and disposal after affording sufficient opportunities to both parties to adduce evidence. The Magistrate is also directed to complete the trial of the proceedings within three months from the date of receipt of a copy of this order.

The parties are directed to appear before the Magistrate on 26th June, 2000.