M.V.P. Maharaja vs State

M.M. Sundresh, J.—The petitioner herein is the defacto complainant in C.C. No. 49 of 2007 on the file of the learned Judicial Magistrate

No. II, Tuticorin. The petitioner and the second respondent are brothers and the third respondent is a college student and the son of the second

respondent.

The present petition has been filed by the petitioner challenging the order passed by the Fast Track Court No. I, Tuticorin, in Crl.R.C. No. 24

of 2008, wherein the order passed in C.C. No. 49 of 2007 on the file of the learned Judicial Magistrate No. II, Tuticorin, rejecting the discharge

petition filed by the respondents 2 and 3, has been set aside by allowing the said Criminal revision.

The brief facts of the case are as follows:

3.1. On 28.12.2006, a complaint was given by the second respondent against the petitioner herein alleging that the petitioner has assaulted him

with sickle at 09.30 p.m. along with two other persons and used filthy language against the second respondent''s wife. The said complaint has been

made for the alleged offences under Sections 341, 324 and 506(ii) I.P.C. Thereafter, the said complaint was received and instead of registering the

complaint, a receipt was given by the first respondent. The second respondent is also said to have been injured with contusion of the right arm.

Thereafter, another complaint was given by the petitioner against the respondents 2 and 3 on 29.12.2006 at 01.30 a.m. for the same occurrence

for the alleged offences under Sections 341, 324 and 506(ii) I.P.C. The said complaint was made against the respondents 2 and 3.

3.2. The subsequent complaint given by the petitioner has been registered in Cr. No. 644 of 2006 as against the earlier complaint given by the

second respondent and it was only received and receipt in Receipt No. 308/2006 alone was given.

3.3. The second respondent filed a petition u/s 156(3) of the Code of Criminal Procedure to register the earlier complaint against the petitioner and

the learned Judicial Magistrate in Crl.M.P. No. 762 of 2007 dated 20.02.2007, has ordered the registration of the complaint and to investigate

into the matter. The said complaint was not registered in spite of the subsequent two communications sent by the learned jurisdictional Magistrate.

Thereafter, a contempt petition was filed by the second respondent against the first respondent for not registering the case and investigating the

matter. The said petition was dismissed by the learned Judicial Magistrate No. II, Tuticorin, in Cr.M.P. No. 2918 of 2007 on 23.07.2007, stating

that inasmuch as the first respondent has sought for clarification in view of the allegations made by the second respondent against the first

respondent regarding the registration of the F.I.R, the case has not been registered as per the directions of the learned Judicial Magistrate No. II,

Tuticorin and therefore, the same cannot be construed as wilful disobedience. Thereafter, a reference notice was given by the first respondent to

the petitioner on 19.10.2007 stating that the case has been registered against the petitioner on 30.05.2007 itself and closed on 31.05.2007.

Thereafter, the second respondent filed a discharge petition in Crl.M.P. No. 8965 of 2007. In the said petition, the second respondent has also

filed a number of documents. The learned Judicial Magistrate No. II, Tuticorin, has dismissed the said petition, but the same was reversed by the

Fast Track Court No. I, Tuticorin, in Crl.R.C. No. 24 of 2008. The learned Fast Track Judge has also allowed the revision filed in Crl.R.C. No.

42 of 2007 filed against the order passed in Cr.M.P. No. 2918 of 2007 with a direction to treat it as one u/s 200 of the Code of Criminal

Procedure.

Challenging the above said order in Crl.R.C. No. 24 of 2008, this petition has been filed seeking invocation of the power of this Court u/s 482

of the Code of Criminal Procedure.

Before the trial Court, while filing the discharge petition, number of documents have been marked by the second respondent. The second

respondent has also produced the documents to show that his complaint was earlier and it was not registered, that before the same hospital, both

the petitioner and the second respondent have been referred, even before the hospital, the petitioner was given only Out Patient receipt and the

petitioner was shown to have been given the Accident Register. The first Accident Register which was written and cancelled having the time at

03.00 a.m. and the second Accident Register was also signed showing the same time, but there is difference of about 50 numbers between the

earlier Accident Register which was cancelled and the subsequent one. Further documents are produced to show that the jail authorities at the time

of remand as well as the learned Judicial Magistrate, recorded the nature of injuries sustained by the second respondent and in spite of the

reference made by the jail authorities with a request to the first respondent to give sufficient protection for treatment of the second respondent, no

sufficient action was taken and there is contradiction between the injuries as noted by the learned Magistrate and the jail authorities as against the

one noted in the receipt given by the hospital authorities. Further documents have been given to show that the person concerned who gave the

Accident Register is not the person authorised to give. It is also indicated that the first Accident Register which was cancelled was signed by the

authorised person, but the second one was not authorised and the information obtained under the Right to Information Act, was also shown as one

of the documents to substantiate the said contention.

The learned Judicial Magistrate has dismissed the discharge petition filed by the petitioner without considering the documents filed by the

respondents 2 and 3. However, the said documents have been taken into consideration by the Fast Track Court No. I, Tuticorin and the finding

has been given that the investigation has not been done by the first respondent properly and it reveals only a prejudiced view in favour of the one

party, more so, in not registering the earlier complaint. The learned Judge has also considered all the documents produced by the respondents 2

and 3.

The learned Counsel for the petitioners submitted that the Fast Track Court No. I, Tuticorin, has committed a grave error in exercising the

revisional power on a revision filed challenging or declining the discharge in considering the documents produced by the respondents 2 and 3. The

learned Counsel strongly contended that u/s 239 of the Code of Criminal Procedure, at the time of framing charges and at the time of taking

cognizance, there is no power or authority for the Courts below to take into consideration any document produced by the accused. In other

words, the discharge petition will have to be decided based upon the materials produced by the prosecution alone and therefore, the proceedings

is liable to be set aside.

In support of his contention, the learned Counsel for the petitioner, has relied upon the following decisions:

(i) Union of India (UOI) Vs. Prafulla Kumar Samal and Another, .

(ii) Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, .

(iii) Nemichand Jain v. Roshanlal and Ors. (2004) 13 SCC 461.

(iv) State of Orissa Vs. Debendra Nath Padhi, .

(v) Hem Chand Vs. State of Jharkhand, .

(vi) Bholu Ram v. State of Punjab and Anr. (2008) 9 SCC 140.

(vii) Palwinder Singh Vs. Balwinder Singh and Others, .

(viii) Indu Jain Vs. State of Madhya Pradesh and Others, ,

and prayed for allowing this petition.

Per contra, the learned Counsel for the respondents 2 and 3, submitted that it is a clear case where the first respondent has taken sides by

conducting a partial, biased and tardy investigation. The learned Counsel further submitted that the non-registration and non-disclosure of earlier

complaint coupled with the attitude of the first respondent in refusing to accompany the respondents 2 and 3 to the hospital, not registering the

earlier complaint in spite of the directions obtained u/s 156(3) of the Code of Criminal Procedure and not disclosing the fact of registration of the

complaint on 30.05.2007 and its consequential closure on 31.05.2007 till 19.10.2007, etc., would clearly show that the first respondent has

conducted the investigation not only contrary to the Police Standing Orders, but in a partial manner supporting the case of the petitioner and

therefore, the proceedings are liable to be quashed. The learned Counsel further submitted that in any case, the power u/s 482 of the Code of

Criminal Procedure can be invoked in a given case where the injustice is manifest and in the present case where revisional orders have been

passed by the learned Fast Track Judge on consideration of the materials available on record, the same need not be interfered with.

I have heard the arguments of the learned Counsel appearing for the parties and the learned Government Advocate (Criminal Side) for the first

respondent.

As contended by the learned Counsel for the petitioner, at the time of framing charges or taking cognizance, neither the trial Court nor the

revisional Court would look into the documents produced by the accused persons. What is required is to be seen a prima facie case and the

accused can produce the documents only at the time of trial. In other words, the Code of Criminal Procedure does not contemplate a mini trial

before a full fledged trial.

In State of Orissa Vs. Debendra Nath Padhi, , the Honourable Apex Court has observed as follows:

All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to

prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to

materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the

material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the

accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to

be a well-settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau v. P. Suryaprakasam where

considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and

can consider are only the police report referred to u/s 173 of the Code and the documents sent with it. The only right the accused has at that stage

is of being heard and nothing beyond that. (emphasis supplied) The judgment of the High Court quashing the proceedings by looking into the

documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed

by this Court. It may be noticed here that learned Counsel for the parties addressed the arguments on the basis that the principles applicable would

be same - whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code.

As opposed to the aforesaid legal position, the learned Counsel appearing for the accused contended that the procedure which deprives the

accused to seek discharge at the initial stage by filing unimpeachable and unassailable material of sterling quality would be illegal and violative of

Article 21 of the Constitution since that would result in the accused having to face the trial for a long number of years despite the fact that he is

liable to be discharged if granted an opportunity to produce the material and on perusal thereof by the court. The contention is that such an

interpretation of Sections 227 and 239 of the Code would run the risk of those provisions being declared ultra vires of Articles 14 and 21 of the

Constitution and to save the said provisions from being declared ultra vires, the reasonable interpretation to be placed thereupon is the one which

gives a right, howsoever limited that right may be, to the accused to produce unimpeachable and unassailable material to show his innocence at the

stage of framing charge.

We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with

which Section 227 was incorporated and Sections 207 and 207-A omitted have already been noticed. Further, at the stage of framing of charge

roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge.

That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth.

The acceptance of the contention of the learned Counsel for the accused would mean permitting the accused to adduce his defence at the stage of

framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that

the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted

despite the well-settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to

produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf

of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about

hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on

the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression ""hearing the submissions of

the accused"" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of

charge hearing the submissions of the accused has to be confined to the material produced by the police.

Following the above said judgment, in Indu Jain Vs. State of Madhya Pradesh and Others, , the Honourable Apex Court has observed as

follows:

Ms Makhija lastly referred to the three-Judge Bench decision of this Court in State of Orissa v. Debendra Nath Padhi in which the question

decided differently in Satish Mehra v. Delhi Admn. was referred to. In Satish Mehra case a two-Judge Bench of this Court had decided that at the

stage of framing of charge, the trial Judge was competent to look into the material produced on behalf of defence at the time of framing of charge in

order to come to a decision as to whether it was at all necessary to frame charges on the material produced on behalf of the prosecution as well as

the defence. Answering the reference in the negative, the three-Judge Bench overruled the view expressed in Satish Mehra case and held that at

the said stage of framing charge, the court was only required to look into the material produced on behalf of the prosecution in deciding whether a

particular case was fit to go to trial.

In Hem Chand Vs. State of Jharkhand, , it has been observed in paragraph 9 as follows:

It is beyond any doubt or dispute that at the stage of framing of charge, the Court will not weigh the evidence. The stage for appreciating the

evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not

would arise only after all the evidence is brought on record at the trial. The documents whereupon the appellant intended to rely were: (i) an order

of assessment passed by the Income Tax Authority and (ii) his declaration of assets.

In Palwinder Singh Vs. Balwinder Singh and Others, , it is held as follows:

Having heard learned Counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned

judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the

learned Sessions Judge while exercising power u/s 227 of the Code of Criminal Procedure is limited. Charges can be framed also on the basis of

strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been

considered by this Court in State of Orissa v. Debendra Nath Padhi wherein it was held as under:

As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no

right to produce any material. Satish Mehra case holding that the trial court has powers to consider even materials which the accused may produce

at the stage of Section 227 of the Code has not been correctly decided.

A similar view has been taken by the Honourable Apex Court in Bholu Ram v. State of Punjab and Anr. (2008) 9 SCC 140 and it is held as

follows:

In our considered opinion, the Revisional Court was not justified in entering into correctness or otherwise of the evidence at the stage of

issuance of summons to Respondent 2. Admittedly, the Judicial Magistrate had considered a limited question whether on the basis of evidence of

prosecution witnesses, prima facie offence had been made out against Respondent 2. He, on the basis of such evidence, was satisfied that the case

was required to be gone into and issued a summons. To us, the Revisional Court was not right in interfering with that order. Hence, even on that

ground, the order was not in accordance with law.

The above said pronouncements of the Honourable Apex Court have made it very clear that at the time of considering the application filed to

quash the proceedings, the Court concerned shall not look into the documents produced by the accused, but will have to see whether it is a case

for discharge based upon the materials produced by the prosecution alone.

However, the question to be considered in the present case on hand, is as to whether the procedure adopted by the first respondent is

impartial, fair, just and proper or not?.

In order to appreciate the above said position, this Court will have to see the procedure contemplated under the Police Standing Orders under

Chapter XXX. PSO 566, is extracted hereunder:

PSO 566. Investigation to be impartial.

(1) Investigating officers are warned against prematurely committing themselves to any view of the facts for, or against a person. The aim of an

investigating officer should be to find out the truth, and to achieve this purpose, it is necessary to preserve an open mind throughout the Inquiry.

(2) Charge-sheets in cases and counter cases - In a complaint and counter complaint obviously arising out of the same transaction the Investigating

officer should enquire into both of them and adopt one or the other of the two courses, viz., (1) to charge the case where the accused were the

aggressors or (2) to refer both the cases if he should find them untrue. He should place before the court a definite case which he asks it to accept.

The Investigating officer in such cases should not accept into one complaint and examine only witnesses who support it and gave no explanation at

all for the injuries caused to the other side. It is his duty to exhibit the counter - complaint in the court, and also to prove medical certificates of

persons wounded on the opposite side. The truth in these cases is invariably not in strict conformity with either complaint and it is quite necessary

that all the facts are placed before the court to enable it to arrive at the truth and a just decision.

(3) If the Investigating Officer finds that the choice of either course is difficult, viz., to charge one of the two cases or to throw out both, he should

seek the opinion of the Public Prosecutor of the district and act accordingly. A final report should be sent in respect of the case referred as mistake

of law and the complainant or the counter - complainant as the case may be, should be advised about the disposal by a notice in Form No. 90 and

to seek remedy before the specified Magistrate, if he is aggrieved by the disposal of the case by the Police.

A perusal of the said investigation process would clearly show that when there is a case of complaint and counter complaint, the Investigating

Officer should enquire into both the complaints and register the cases and thereafter, investigate into the matter. Therefore, the Investigating Officer

should consider both the cases and shall not accept one complaint and examine only the witnesses in support of the said complaint. Therefore, the

bounden duty is cast upon the Investigating Officer to register both the cases and conduct common investigation in both the cases by examining the

witnesses in pursuance of the said complaints. Even in a case where the Investigating Officer finds that one of the two charges will have to be

thrown out, he should seek the opinion of the Public Prosecutor and act accordingly. Thereafter, a final report should be sent in support of the case

referred as ''mistake of fact''.

An important factor to be noted in the present case is that after registering the complaint of the respondents 2 and 3 in pursuance of the orders

of the learned Judicial Magistrate and during the pendency of the contempt proceedings, it was closed on 31.05.2007 itself. Admittedly, neither the

respondents 2 and 3 nor their witnesses have been examined. The manner in which the earlier complaint given by the respondents 2 and 3, has

been refused to be registered and thereafter, suppressed and closed in a hurried manner, speaks volume of the conduct of the Investigating Officer.

It is, no doubt, true that this Court will have to shut its eyes on the documents produced by the respondents 2 and 3. However, even a perusal

of the said documents would show that how much the Investigating Officer is prejudiced and biased against the respondents 2 and 3. Most of the

documents such as the complaint given by the second respondent, its receipt, injuries noticed by the learned Judicial Magistrate and the jail

authorities at the time of remand, accident registers are not new documents, but more of public records. The said documents are not disputed and

in fact, they must have been produced by the prosecution itself. An Investigating Officer carries himself with lot of responsibilities and he supposed

to act fairly being a public servant. There is absolutely no reason as to why he has suppressed the earlier complaint and registered the subsequent

complaint showing as if the respondents 2 and 3 were arrested on the next day morning wherein the complaint had been given on the previous day

itself. Even in the judgment in State of Orissa Vs. Debendra Nath Padhi, , the Honourable Apex Court has considered the power of this Court u/s

482 of the Code of Criminal Procedure. The Honourable Apex Court has observed as follows:

Regarding the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of

sterling quality, the width of the powers of the High Court u/s 482 of the Code and Article 226 of the Constitution is unlimited whereunder in the

interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure

the ends of justice within the parameters laid down in State of Haryana and others Vs. Ch. Bhajan Lal and others, .

Therefore, in a case where a grave injustice has been committed, a power u/s 482 of the Code of Criminal Procedure, need not be invoked by

setting aside an order in order to render substantial justice between the parties.

In Krishnamoorthi and Anr. v. State 1989 MLJ (Cri) 240, while considering the Police Standing Orders, regarding the registration of the

complaint and counter complaint, the Division Bench of this Court has observed as follows:

If the Investigating Officer finds that the choice of either course is difficult, viz., to charge one of the two cases or to throw out both, he should seek

the opinion of the Public Prosecutor of the district and act accordingly. A final report should be sent in respect of the case referred as mistake of

law and the complainant or the counter-complainant, as the case may be, should be advised about the disposal by a notice in Form 96 and to seek

remedy before the specified Magistrate, if he is aggrieved by the disposal of the case by the police.

A similar view was taken by the another Division Bench of this Court in Moorthy and Anr. v. State 2005 M.L.J (Crl.) 191, it is held as

follows:

The above testimony is highly artificial and the prosecution has only made a vain attempt to show that Basker has sustained injuries in a

different transaction. Whatever it may be, the settled law is that when the counter complaint is given by the accused for the injuries sustained by him

in the course of the same transaction at the hands of the deceased party, the Investigation Officer has to investigate both the complaints and then

only file final report and place all the materials before the Court.

In the present case, the Investigation Officers, namely, P.W.17 Inspector Palanivel and P.W.18 Inspector Manavalan have only stated that

they conducted investigation in the counter case and referred the same as ''mistake of fact'' and they have not marked the counter complaint and

the referred report in this case.

Applying the ratio of the above said two judgments to the present case on hand, this Court is of the opinion that the order passed by the

revisional Court in Crl.R.C. No. 24 of 2008 will have to be sustained.

The learned Counsel for the respondents 2 and 3 submitted that the case has been foisted against the respondents 2 and 3 by misusing the

position of the petitioner''s wife who is a judicial officer. The learned Counsel for the respondents 2 and 3 further submitted that the petitioner had a

wrong apprehension that the respondents 2 and 3 are responsible for the enquiry conducted against the petitioner''s wife.

This Court is not willing to go into the said allegation made by the learned Counsel for the respondents 2 and 3. The said contention of the

involvement of the petitioner''s wife has not been raised in the discharge petition and moreover, the said person not being a party, the above said

contention cannot be countenanced.

In the result, this Criminal Original Petition is dismissed.