R. Gopalakrishnan vs P. A. C. R. Ramasubramania Raja and Others

Ramaprasada Rao, J.—This criminal revision case is directed against the order of the learned Sessions Judge, Ramanathapuram at Madurai, who in turn dismissed a revision petition filed against the order of dismissal of a complaint filed by the Petitioner before the Sub-Divisional Magistrate-Srivillipputtur (though originally filed before the District Magistrate, Devakottai) on the ground that he found no sufficient ground for entertaining the complaint laid by the Petitioner. For the purpose of this case, it is enough to notice certain material facts. Respondents 1 to 3 are said to be businessmen at Rajapalayam and Respondents 4 to 6 are police officers of Rajapalayam. The Petitioner''s brother-in-law, Ramaswami who was employed in one of the concerns of the Respondents 1 to 3 was said to have been charged for being responsible for the shortage of funds in this said concern. It is claimed that the said Ramaswami was taken away on 4th June, 1966 by the second Respondent from his residence at Srivilliputtur to Rajapalayam and kept in wrongful confinement in a guest house belonging to Madras Cements, Ltd. at Rajapalayam by Respondents 1 to 3. On 14th June, 1966, it is stated, the father of Ramaswami, one Rangaswami Iyengar, is also said to have been taken by Respondents 4 to 6 and kept in wrongful confinement at the same guest house at Rajapalayam. The Petitioner''s case is that the son and the father so interned were coerced and intimidated to pay large sums of money to secure their release and towards liquidation of the shortage referred to above. The Petitioner''s brother is said to have presented a petition to the Inspector General of Police covering the above aspect. This This was on 19th June, 1966. On 20th June, the Petitioner also preferred a petition to the Collector and to the Deputy Inspector General of Police, Madurai, complaining about the alleged acts individually or jointly undertaken by the Respondents. The Petitioner also says that he was abducted by Respondents 4 to 6 and he was also kept under similar wrongful confinement till 24th June, 1966. The brother of the complainant, Govindarajan is said to have paid a sum of Rs. 3,500 and obtained a release of the Petitioner. Thereafter the Petitioner approached the higher police officials but he did not get any redress.

Certain more facts admitted by the learned Counsel for the Petitioner before me is that on account of the frustration gained by the Petitioner he had to approach the State Government for release, no doubt ministerially. It is said that an enquiry was directed by the Chief Minister of Madras, now Tamil Nadu, and in that enquiry the Petitioner participated. It appears that the enquiry concluded and the Enquiry Officer who was of the rank of a Revenue Divisional Officer deputed for the purpose gave his report. As the Petitioner, amongst others, did not secure the said report, though he participated in the same, and took effective part therein, he had to file a writ petition under Article 226 of the Constitution and the Petitioner fairly concedes that the writ petition was also dismissed and he was not granted the report. I could gather from the submissions made by the learned Counsel for the Petitioner that the report made it clear that there was no case to be enquired into.

With these additional facts which are brought to my notice, to continue the narrative, the Petitioner filed a private complaint under Ss. 200 to 203, Crl.P.C., before the District Magistrate, Devakottai, who endorsed it to the Sub-Divisional Magistrate, Srivilliputtur for further processing. The Petitioner filed the said complaint on 3rd July 1970, admittedly after four years beyond the date of the alleged occurrence. The learned Magistrate was satisfied that there was inordinate(sic) delay in the preference of the private complaint, that excepting for the evidence of the Petitioner as complainant in a private complaint, no other material was placed before him so that he could satisfy himself that a further enquiry into the alleged complaint was necessary in law. As against this, the Petitioner filed a criminal revision petition before the Court of Session, Ramanatha-puram, who agreed with the Sub-Divisional Magistrate. The learned Sessions Judge found that there was no explanation for the delay and no witnesses were produced by the complainant on the date when the complainant was examined for the court to be satisfied that there was necessity of warrant to proceed with the complaint. The learned Sessions Judge did not agree with the bald explanation given by the Petitioner that as he was ill he could not file a complaint earlier. It may at once be stated that there is no evidence that the Petitioner was ill at all and if so for what period. It is as against the said order of the Sessions Judge the present revision petition has been filed.

Mr. U.N.R. Rao, learned Counsel for the Petitioner, states that the order of the Sub-Divisional Magistrate as well as that of the Sessions Judge of Ramanathapuram are vitiated for the following reasons:

Delay by itself is not fatal in a private complaint and that cannot be made the sole ground for its dismissal.

The non-examination of the witnesses cannot again be the foundation for the refusal to issue further processes under Ss. 280 to 203, Crl.P.C.

The remark made by the Sub-Divisional Magistrate and in away approved by the Sessions Judge that the witnesses cited were kith and kin of the Petitioner is a conclusion which did not have any bearing at all, but is certainly one which projects an error apparent on the record which is claimed as one which has vitiated it.

The observation that the complaint was intended for the purpose of blackmailing the Respondents is again one without any basis or warrant.

He no doubt took out a preliminary objection, besides the contentions raised above, that this Court ought not to hear the Respondents or their counsel though they may be permitted to sit in court either as Respondents in person or as Respondents'' counsel. Any attempt on their part to participate in the proceedings in this Court is prohibited in view of the decision of the Supreme Court in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, No doubt the Supreme Court in the above case has laid down as a general proposition that in a case where a person complains privately against another, it is premature for that another to make representations to the court who has seisin of the matter, for, it is likely to prejudice the mind of the court and there is also the allied opportunity of the court being apprised of materials which ought to be placed before it at that time. It is in such circumstances the Supreme Court states that "the entire scheme of Chapter XVI, Code of Criminal Procedure shows that an accused person does not come into the picture at all till the process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so."

It was in such circumstances the court interfered with the orders of the courts below where the Magistrate permitted the proposed accused to cross examine the witnesses made available to the court by the complainant. The question, however, is whether this principle is applicable even to a proceeding which arises u/s 436, Code of Criminal Procedure At the time of admission, this Court issued notice to the Public Prosecutor and notice to the complainant as well. Apparently this question was not brought to the notice of the learned Judge who entertained this criminal revision case and issued directions as above. But the matter is argued before me that the principle in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, mutatis mutandis is applicable to the proceeding u/s 436, Crl, P.C., and therefore even if the learned Public Prosecutor or the learned Counsel for the Respondents 1 to 3 are permitted to enter appearance, yet there is a ban against their active participation in this enquiry. He substitutes the words ''High Court'' for the word ''Magistrate'' in the rule adumbrated by the Supreme Court in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, . I am of the view that the Supreme Court never intended to make such an extreme proposition. Even otherwise, I am of the view that the proceedings u/s 436 Crl. P.C. are peculiar in nature and they have an import of their own which is not covered by the ordinary process of criminal law. This is a case where the High Court is called upon to scrutinise the orders of subordinate criminal courts who in the exercise of their judicial discretion dismissed the private complaint as one for which in their opinion and judgment there was no sufficient ground for proceeding. At that stage and after the High Court has issued notices to the learned Public Prosecutor (evidently because some of the Respondents are police officers) and to the other Respondents, it cannot be said that the ban in the rule in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, applies in toto to the facts and circumstances of this case. The Respondents are undoubtedly entitled to come to the court to state that the order Which is sought to be challenged in this Court is sustainable because it satisfies the various limbs of Ss. 200 to 203, Crl. P.C. and on the other legal grounds. To that extent at least they have a right of audience. Therefore, the right of presence which looms large in the rule in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, gets itself relaxed in the circumstances of this case not only to the right of presence but also to the entitlement of being heard for the limited purpose stated above. If this is not so, I am of the view that the principles of natural justice would be violated. For ought, I know, the doctrine of natural justice is not eliminated because the matter is one concerning crimes. In the absence of any specific provision in the Criminal Procedure Code, which puts a total ban on such persons or counsel making a representation to the court that the impugned order of the Magistrate or Sessions Judge is not in accordance with law or otherwise there is nothing which prevents this Court as a High Court to hear them on that aspect only and I propose to hear them, though for a very limited purpose.

The first contention of the learned Counsel for the Petitioner is that the complaint ought not to have been dismissed on the ground of delay. The sum and substance of the complaint is that on 20th June 1966 the complainant was abducted by Respondents 4 to 6 and he was kept in wrongful confinement till 24th June 1966, and he was released four days later after sufficient gratification was made, that is until a sum of Rs. 3500 was paid to Respondents 1 to 3. This is certainly an offence which appears in Chapter XVI, Crl. P.C. His main grievance is that he was wrongfully confined by Respondents 4 to 6 at the behest of Respondents 1 to 3. Wrongful confinement means a restraint of any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits. This is certainly an offence which no ordinary or normal person, if it is true, would tolerate for any moment. Nothing was done for a period of four days and in fact, the Petitioner''s case is that he was released on payment. He did (sic ?) (not) cause any steps to be taken either u/s 100 Crl. P.C. or u/s 341, I.P.C. The complaint is laid in 1970 as against a set of circumstances or facts which are supposed to be in existence in June 1966. The complainant takes all available steps to vindicate his rights by including the steps of coming to this Court invoking its special extra-ordinary jurisdiction under Article 226 of the Constitution. This was done after he participated in an enquiry held at the instance of the State Government which was requested for by the Petitioner or others and the Petitioner also knew that the enquiry officer did not agree with him that there was any basis for the complaint. When he came to this Court his writ petition was dismissed on the ground that he was not entitled to get a copy of the report given by the enquiry officer. I have already said that these facts do not appear on record but they were brought to my notice by the learned Counsel for the Petitioner. It is only after dismissal of the writ petition that the present private complaint was made nearly 4� years after the date of the alleged incident. It is in these circumstances that both the Sub-Divisional Magistrate and the Sessions Judge of Ramanatha-puram rightly held that such an unexplained inordinate delay in relation to the offence relating to the person of the complainant should be taken notice of for the purpose of exercising their discretion u/s 203, Crl. P.C. to find whether in their judgment there was sufficient ground for proceeding further. This was one of the reasons given by both the courts for finding that the delay was not an excusable delay and there was no sufficient ground for entertaining the hopelessly delayed private complaint laid before them after such a long period. But the learned Counsel would refer to decisions, one reported in Vedantha v. Marigowda AIR 1951 Mys. 127 and the other Ghouse Mohideen v. Nagoji AIR 1968 Mys. 210. In the former of the above two cases, the facts are not similar to the facts of the case before me and further, Balakrishnayya, J. of the Mysore High Court made a general observation to the effect that despite the duty cast upon the court to protect the accused, ordinarily it will not be justified in throwing out a complaint without giving an opportunity to the complainant to substantiate his allegations. There the Sub-Magistrate did not even record the reasons u/s 202, Crl.P.C., when he wanted to make an enquiry for that purpose in the course of the hearing of a private complaint. When this was noticed by the court, the general observations as above were made by the learned Judge. That has no relevancy to the facts or the circumstances in the instant case. In Ghouss Mohideen v. Nagoji AIR 1968 Mys. 210, the complainant went to court for filing a complaint. Surprisingly he was directed in the court to approach the Superintendent of Police. Thereafter the Petitioner had to approach the Superintendent of Police, who directed him to the Circle Inspector of Police and after having had no benefit by following the direction of the court as above, the complainant had once again come to court with a private complaint. The learned Magistrate who heard the case and after noticing that the complainant was not at fault in having made such a belated complaint, yet thought that in his judgment the proceedings could not be furthered with because of delay. That was a case where there was no dispute that the Petitioner sustained a bleeding injury. That was also to the knowledge of the Magistrate and the records disclosed the same. In those circumstances when the private complaint was dismissed, the learned Judge said�

The procedure adopted by the learned Magistrate dismissing the complaint of the Petitioner solely on the ground that no useful purpose would be served by his issuing processes to Respondents after a lapse of two years after the date of the incident for which the Petitioner was in no way responsible is really unsatisfactory.

Here in contrast, the Petitioner has not explained as to why for four years and more he never took any interest in filing the criminal complaint against the Respondents for a personal offence against him.

The next decision cited by the learned Counsel for the Petitioner is in Assistant Collector of Customs and Another Vs. L.R. Malwani and Another, That was an offence against the State. There the accused and others were prosecuted for smuggling, conspiracy, etc. Initially steps were taken against the accused therein under the Sea Customs Act, 1878. After exhaustion of such a special remedy available, the criminal prosecution was launched. The plea was autrefois acquit, etc and we are not concerned with it. One other contention raised by the accused therein was whether the prosecution must be quashed because there was a delay in instituting the same. The High Court repelled that contention and on the materials placed before it came to the conclusion that the delay in filing the complaint was satisfactorily explained. That was accepted by the Supreme Court. Said the Supreme Court:

That apart, it is not the case of the accused that any period of limitation is prescribed for filing the complaint. Hence the court before which the complaint was filed could not have the own out the same on the sole ground that there has been delay in filing it. The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict. But(sic ?) by itself it affords no ground for dismissing the complaint.

Mr. U. N. R. Rao stresses upon the fact that as there is no prescription as to time in the matter of filing private complaint, that ought not to have been the sole ground for the Sub-Divisional Magistrate and the Sessions Judge to dismiss the private complaint u/s 203, Crl. P.C. The Supreme Court has said that the question of delay in filing the complaint is not an irrelevant consideration. That taken along with the other factors certainly is a matter which can be rightly considered by the courts below. In the High Court I have additional material, namely, that the Petitioner has come up to this Court under Article 226 of the Constitution and it was only thereafter he realised that a criminal offence is committed against him. In the courts below he did not give any explanation excepting the one that he was ill Obviously, this is a false excuse as the facts brought to my notice disclose that he was not ill but actually participated in an enquiry and availed of every remedy open. Rightly, therefore, the courts below found that the explanation that he was ill was not acceptable and the delay was unexplained.

As I said in the beginning, I permitted the learned Public Prosecutor and the counsel for the Respondents to assist me in coming to the conclusion whether the challenged order on the facts stated therein is sustainable or not. This is because Section 436, Crl. P.C. itself enables this Court to examine the records and find whether the Sessions Judge should be redirected to make a further enquiry into any complaint which has been dismissed u/s 203, Crl. P. Code.

The next point urged by Mr. U.N.R. Rao was that the lower courts were wrongly of the view that the witnesses were not examined by the Magistrate and that such non-examination is again a matter which compelled them not to proceed further. No doubt prior to the amending Central Act 26 of 1955, the position was somewhat different as it presumably could compella Magistrate before which a private complaint is made to issue processes after examining the complainant or considering his written statement if any. But after the amending Act 26 of 1955, S. 203, Code of Criminal Procedure has been recast. S. 203 says:

The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if after considering the statement on oath (if any) of the

complainant and the witnesses.

The expression ''and the witnesses'' was conspicuously absent prior to the amendment, in the text of S. 203, Code of Criminal Procedure The scope of the expression ''witness'' in S. 203 came up for consideration in the Mysore High Court, in the decision in Dr. V. Naidu v. K. Janar-dhana AIR 1959 Mys. 119 which was brought to my notice by the learned Public Prosecutor. There, Hegde, J. as he then was, said:

I have no hesitation in coming to the conclusion that the ''witnesses'' mentioned in S. 203 refers to the witnesses mentioned in S. 200, Code of Criminal Procedure If that is not, the interpretation that all the witnesses cited by a complainant in his complaint should be examined by the Magistrate before he makes up his mind to dismiss a private complaint.

I respectfully adopt this observation. In the instant case, it is admitted that the Petitioner beyond examining himself as a complainant, never tendered any witnesses nor any attempt has been made to persuade the court to summon any witness cited by him in his complaint. No doubt, Mr. Rao at this stage states that he has instructions to state that the witnesses were ready even when the complainant was examined in the first instance. There is nothing in the record to show that such was the position. On a perusal of the records and after a review of the orders challenged in this case, I am satisfied that the Petitioner never attempted to tender any evidence to corroborate his statement and rightly therefore, the courts below never thought that it was just nor proper to proceed with the enquiry in a private complaint in the said circumstances. Again our High Court in Ramaswami Nadar v. Viswana-than 1957 M.W.N. Cri. 23 has categorically laid down that S. 200 Code of Criminal Procedure as amended is mandatory and it is therefore obligatory on the part of the Magistrate to examine not only the complainant but also the witnesses who are present in Court. In the instant case, no witness was present in Court nor does the record show that any attempt was made to examine such a person. I am unable therefore to agree with the second contention of Mr. Rao that the proceeding is vitiated because the complaint was not pursued further on the mere circumstance that the witnesses were not examined by the complainant.

As regards the observations of the Magistrate or the Sessions Judge that the majority of the witnesses are kith and kin of the Petitioner and the complaint itself appears to be for the purpose of blackmailing others, they are unnecessary remarks. But that would not make any the difference in my conclusion. In cases where the record discloses inaction on the part of the authority who is moved for the purpose of entertaining a private complaint, or in a case where it is necessary to correct a manifest illegality on record or for purpose of prevention of miscarriage of justice, it might be necessary for this Court to act and interfere u/s 436, Code of Criminal Procedure But, in a case where the complaint itself is laid 4� years after the incident and in a case where the offence is against the person of the individual complainant and when there is no explanation at all for the delay and when the so-called explanation is now found to be incorrect and when the Petitioner was not prompt in attempting to seek corroboration of his version of the incident by examining at least a few of the cited witnesses, then it does not appear to me that this is a case in which any illegality or irregularity appears on the face of the record.

In this view, after examining the records, I am satisfied that there is no necessity to make further enquiry into the complaint which has been dismissed u/s 203, Code of Criminal Procedure The criminal revision petition is dismissed.