Ms. Thi. Cholar vs Sundararajan

Rengasamy, J.—This revision is against the order of the learned Chief Judicial Magistrate, Tiruchirapalli, passed u/s 203 Code of Criminal

Procedure, dismissing the complaint given by the revision petitioner.

The revision petitioner, who is an advocate by profession, but was acting as a President of Thanthai Periyar Slum Dwellers'' Association, lodged

a complaint against the respondent, who is a sub-Inspector of Police, attached to Pallakarai Police Station, Trichy, at that time, for the offences

under Sections 342, 355 and 506 Part 1. Indian Penal Code and Order 663 of Police Standing Orders. The learned Chief Judicial Magistrate had

recorded the sworn statements of the complainant and two other persons and in spite of that, he felt that prima facie case was not made out against

the respondent/accused, and therefore, dismissed the complaint u/s 203 Code of criminal Procedure. Hence, this revision.

The learned counsel appearing for the revision petitioner Ms. Jayamangalam would submit that the learned Chief Judicial Magistrate, Trichy, had

assessed the evidence even at the stage before the process for the complaint was issued to the accused and the learned Chief Judicial Magistrate,

without knowing the scope of Section 203 Code of Criminal Procedure, should not have passed the order dismissing the complaint when

especially there are statements from two witnesses apart from the sworn statement of the complainant and therefore, the impugned order is liable to

be set aside. She has cited a series of decisions to support her argument that the stage for the assessment of the evidence comes only after the

complaint was taken on file but, for dismissing the complaint u/s 203 Code of Criminal Procedure, the Court has to see from the statement whether

a prima facie case is made out from the averments of the sworn statement, but contrary to this principle in this case, though the complainant has

spoken about the wrongful restraint, attack and threatening made by the respondent, the trial Court had dismissed the complaint itself without

issuing the process to the accused and therefore, the mode adopted by the learned Chief Judicial Magistrate for the dismissal of the complaint is

illegal.

Unfortunately, in the type-set furnished by the learned counsel for the petitioner, the sworn statement of the complainant is not furnished though

the sworn statements of the other two witnesses C. Ws. l and 2 are furnished. On a perusal of the statements of these two witnesses, C. Ws. I and

2, we are able to see that there is no averment for the offences under Sections 355 and 506 Part I, Indian Penal Code and Order 663 of Police

Standing Orders. The occurrence is said to have taken place on 26.12.1994. The statement of C.W.2 would reveal that the slum dwellers were

occupying the property belonging to Trichy Municipality by putting up huts and one week prior to the alleged occurrence on 26.12.1994, all the

hutments were demolished by the Municipality and that after the demolition of the payments, the slum dwellers formed an association under the

name and style of Thanthai Periyar slum Dwellers Association for which the revision petitioner/ complainant was made as the President. It is also

narrated by C.Ws.1 and 2 that the municipal authorities, along with the police including the respondent Sub-Inspector of Police, came on

26.12.1994 to remove the persons squatting on the municipal property, that they immediately brought the complainant chozhar, that the

complainant, who came to the spot, told the respondent that they have obtained an order of stay in the High Court of 23.12.1994 to maintain the

status quo and therefore, the municipality should not drive the persons, who were occupying the property before the demolition of the huts. It also

comes out from the statements of these witnesses that when the police officer wanted the order passed by this Court to be shown, the petitioner

herein wanted one day time for production of the order of this Court. It is pertinent to refer at this stage that the demolition of the houses was over

even one week prior to 26.12.1994. However, the slum dwellers moved the high Court with a writ petition and obtained the order for maintaining

the status quo only as 23.12.94. But by the time when the order was passed by the High Court, the huts were already demolished. However,

when the police officer, on the request of the Municipality, came to remove the persons squatting on the property, the order of this Court was not

produced by the complainant herein though he was simply representing that he would be able to produce the order on the next day. So, in the light

of this circumstance, now the offences alleged against the accused have to be considered.

It is true that at the stage before the issue of process to the accused, the Court is concerned only with the prima facie case from the statements

of the witnesses. But the learned counsel for the respondent Mr. Shanmugavelayutham would rely upon a decision of the Apex Court in Satish

Mehra v. Delhi Administration & Anr. 1996 (3) Cri 85 (SC) wherein the Supreme Court referred to the scope of Section 227 of the Code of

Criminal Procedure for the discharge of the accused person and it would observe that the object of providing such an opportunity as is envisaged

in Section 227 of the Code of Criminal Procedure is to enable the Court to decide whether it is necessary to proceed with the trial and if the case

ends there, it gains a lot of time of the Court and saves much human efforts and tasks. It further adds,

...when the Judge is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the Court should not be wasted

for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future dale. We are mindful the most

of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an

exercise in futility or a sheer waste of time, it is advisable to truncate or ship the proceedings at the stage of Section 227 of the Code itself.

Therefore, the Apex Court is of the view that even if prime facie case is made out but the materials placed before the Court are not sufficient for

the conviction of the accused, the trial of the case is a sheer waste of time and therefore, the Court is entitled to end the case.

Bearing this principle in mind, if we look into the sworn statements of the witnesses, Nos. 1 and 2 do not speak anything about the occurrence

for the offences under Sections 355 and 506 Part I of the Indian Penal Code or Order 663 of the Police Standing Orders. They have not stated

that the complainant was assaulted by the police officer or he threatened to cause any injury to the complainant or that the complainant was ill-

treated after his arrest. The only piece of evidence spoken by these witnesses is that when the complainant stated that the High Court has passed

an order to maintain the status quo, the respondent police officer shouted at him saying that ""eP vd;d bghpa bfhf; fh'' These words might have been

uttered probably to belittle the complainant, but it cannot be taken that the same was used to threaten the complainant to assault him. Even though

CW.I would say that the respondent said to the complainant that he had already assaulted three advocates, there is nothing to show that he

threatened the complainant to assault him. Therefore, there is total absence of the evidence for the offences under Sections 355 and 506 Part I,

Indian Penal Code, Similarly, for the violation of the Order 663 of Police Standing Orders also, nothing has been spoken by the witnesses with

regard to the conduct of respondent after the arrest of the complainant. Therefore, the Court below is right in holding that there is no prima facie

case made out for the offences mentioned above.

Then the only offence remains to be considered is Section 342 Indian Penal Code. No doubt, CWs. 1 and 2 and others have stated that this

complainant was arrested by the police officer and he was taken to the police station in a police van. But we have to consider whether in the given

circumstances, it will constitute an offence and whether the accused can be prosecuted for the said offence u/s 342 Indian Penal Code. It is

consistently spoken to by all the witnesses examined on the side of the complainant that the complainant came to the spot when the police officer

was asking the persons, who were squatting, to leave the land and he (complainant) said that had obtained the order of the High Court to maintain

the status quo. It would show that the complainant herein had challenged the duty of the Sub-Inspector of Police, who came to the spot on the

complaint of the Municipality for the illegal occupation of the municipal property by the persons, who were squatting there. So, the Sub-Inspector

of Police came to the spot in pursuance of the complaint given by the municipality and therefore, he was discharging his duty that was cast on him.

However, the complainant herein, by saying the High Court had passed order to maintain the status quo, had obstructed the respondent in the

discharge of his duty and therefore, naturally, when the police officer was prevented from discharging his duty, the complainant herein was arrested

and taken to the police station. If the evidence is to the effect that the order passed by the High Court was shown to the respondent police officer

but he, without giving any weight to the order of the High Court, had acted harshly and arrested the complainant, the position would have been

different. But without showing the order passed by the High Court, when this complainant had challenged the authority of the police officer,

naturally, the police officer had to take it that he was obstructed in the discharge of his duty. No doubt, these aspects can be gone into the later

stage But as held in the decision cited above, when this circumstance will not be sufficient to hold that the sub-Inspector of Police had committed

the offence u/s 342 Indian Penal Code, and there is no chance for conviction, the learned Chief Judicial Magistrate was bound to consider this

circumstance also for taking the complaint on file as Section 203 reads, ""...there is no sufficient ground for proceeding...."" Taking into consideration

of all these aspects, I also feel that there is no irregularity or material defect in the impugned order passed by the learned Chief Judicial Magistrate.

In the result, the revision has to fail and accordingly, the same is dismissed in the admission stage.