S.A. Shajahan and others vs R. Kahdar Beg

Pratap Singh, J.—The accused in P.R.C. 10/89 on the file of Judicial Magistrate No. 5, Salem, have filed this petition under S. 482,

Cr.P.C., praying to call for the records in the above case and quash the same.

Short facts are : The Respondent has filed the private complaint against the petitioners for offences punishable under S. 307, IPC (2 counts),

against A1 and A2 and under S. 307 read with 34, IPC against A3 and A4 and against A1 to A4 under Ss. 450 and 452, IPC. The allegations in

it are briefly as follows :

Accused 1 and 2 are the brothers of the complainant''s wife Mumtaj Begum. A3 is the co-brother of the complainant. A4 is the wife of A3. There

is enmity between the complainant and accused 1, 3 and 4 for the past 14 years. Arrangements were made for the marriage of the complainant''s

sister-in-law Hajirabai. With a view to stop that marriage, at the instance of accused No. 1, his wife had written letters containing false allegations

and consequently the marriage talks came to an abrupt end. The complainant''s father-in-law had scolded A1 and A2 regarding the above. On 17-

5-87 at 6:30 a.m. accused 1 to 4 came to the house of the complainant. A1 abused him with obscene words. When the complainant protested, all

the accused abused the complainant and his family members. The complainant protested. At that time, A3 caught hold of the complainant, A1 said

vernacular word"" omitted - Ed and aimed a cut with the knife on his head. The complainant stepped aside and consequently the cut landed on the

right upper lip, causing bleeding injury. All again used the same Tamil word and stabbed the complainant and it landed on his right cheek. A2 used

the same word and beat on the right fore-head of the complainant with iron pipe. With a view to save the life of the complainant, his wife Mumtaj

Begam intervened. A4 caught hold of her and A2 used the same Tamil word and forcibly stabbed on the left chest of Mumtaj Begam. Mumtaj

Begam warded it of with her hand and consequently she escaped death. A2 used the same word towards Mumtaj Begam beat with iron pipe on

her right chest and flank. The complainant''s brother-in-law Dr. Saleem intervened. A1 stabbed him with knife, causing injury on the right wrist and

in the right fore-arm. A2 attempted to beat Dr. Saleem with iron pipe and chased him. The complainant tried to snatch the knife from A1 and in the

malee, A1 sustained an injury on his left hand. Dr. Saleem gave information to the police and police came to the scene and sent the injured persons

to Government Hospital, Salem. They took custody of accused 1 to 3 and handed them over in Ammappettai Police Station. A4 ran away from

the scene place.

The complainant and his wife were admitted as in-patients, since the complainant''s wife was in a precarious condition, the Judicial Magistrate

recorded a dying declaration from her. Policeman from Ammapettai Police Station wrote down the report of the complainant; but did not read it

over and obtained his signature. They also obtained his signatures in two or three blank white papers. From the beginning the Sub-Inspector of

Police, Ammapettai was siding the accused. He refused to seize the blood stained clothes of the complainant''s wife. He did not investigate the

case properly. He did not record the statement of complainant''s witnesses and eye-witnesses. He had created records in order to favour the

accused. Hence this private complaint.

Mr. G. Krishnan, the learned senior counsel appearing for the petitioners, would submit that in the first information report given by the

complainant in Ammapettai Police Station on 17-5-87, he had not at any place mentioned that any of the accused mentioned the words

vernacular"" word omitted - Ed and now it had been deliberately stated in the private complaint, so as to make out an offence under S. 307, IPC

that it is a later development and it cannot be accepted and when that is taken out of account, no offence under S. 307, IPC would be made out.

He would further submit that even in the dying-declaration given by the complainant''s wife Mumtaj Begam to the Judicial Magistrate, she had not

referred to these words ""vernacular"" word omitted - Ed at any place. He would further submit that the complaint is being proceeded with on such

materials which were not found either in the FIR or in the dying declaration, and it would (ultimately ?) result in acquittal of the accused and while

so there is no necessity to allow further proceedings in this case. Per contra, Mr. C. S. Dhanasekaran, the learned counsel appearing for the

complainant, would submit that it is specifically stated in the complaint that the FIR given in the Police Station was not read out to the complainant

and the signatures of the complainant were obtained in two or three blank white papers and it is not the case of the complainant that the FIR given

by him reflects true and correct version of the occurrence and while so the submission that because the words ""vernacular"" word omitted - Ed do

not find a place in the FIR, it cannot be stated that the reference to in the complaint is an afterthought and not true. He would further submit that

regarding the dying declaration, one cannot expect complete picture of the version, at the time when the injured person was in such a position with

serious injuries, which called for recording dying declaration.

I have carefully considered the submissions of the learned counsels. The submission that because the words ""vernacular"" words omitted - Ed

were not referred in the FIR or in the dying declaration, it has to be taken that the reference to, ""vernacular"" words omitted - Ed in this private

complaint is an afterthought and cannot be true, cannot be accepted, on the facts of this case. In this case, in the complaint, it is specifically stated

that the report given by the complainant to the police was not read out to him. It is also stated that the police had obtained signatures of the

complainant in 2 or 3 blank white papers. While so, it cannot be stated that FIR given by the complainant in the Police Station reflects the exact

version given by the complainant. In cases, where the complainant does not make any grievance with regard to the recording of his FIR in the

police station, if any new matters were added in the subsequent private complaint filed thereafter, it can be stated that the new matters were

inserted as a result of after-thought and that they may not be true, in the absence of any convincing explanation. Such is not the case here.

Secondly, though in the dying declaration given by the complainant''s wife, there is no reference to the words ""vernacular"" word omitted - Ed still

as has been rightly pointed out by Mr. C. S. Dhanasekaran, when a person was very seriously injured and her dying declaration was recorded in

such circumstances, one cannot expect a complete narration of the entire occurrence in the dying declaration. It may be or may not be that her

condition was not so serious, so as to draw an inference that she could have given a full and complete version of the occurrence or not. But that

can be considered only at the time of evidence, which would come only at the time of trial. So on the above two grounds, the complaint cannot be

quashed, at the threshold. In Manikandan v. Jayaraman 1987 Mad LW (Cri.) 385, Justice Padmini Jesudurai had quashed the private comperson,

if found shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

As pointed out by the Supreme Court itself in the above referred to case in a petition u/s 97 of the present Code of Criminal Procedure, all the

issues of fact can be tried, unlike in the case of writ of hebeas corpus, where such trial of the issues of fact are not generally demanded. No doubt,

it appears that the 2nd petitioner herein, along with the above said Meenakashi, earlier resorted to proceeding u/s 97 of the Code of Criminal

Procedure, But, there, they finally represented to the Judicial Magistrate, before whom the said proceeding was initiated, that the said petition u/s

97, Cr.P.C. might be closed, when it was made known to them that when the police went to execute the search warrant, they found that the above

said Door No. 406/407, Perundurai Road was locked. But, it is not known why they reported that the abovesaid petition could be closed when

they came to know that the abovesaid house was locked and did not pursue further in the said petition itself if really in the said door number or

elsewhere Sellammal was illegally confined by the 1st respondent. In this connection, it is relevant to mention that in Pravin Singh v. Biharilal Singh,

1989 Cri LJ 1386 it has been held as follows :- (at P. 1388)

From close scrutiny of the scheme of S. 97 what is predominant is a search of the person alleged to be detained wrongfully. The place and name

of person if any quoted in the warrant or supplied in the warrant are merely enabling. However, such particulars provided in the warrant do not

confine the process of search. The wording in the section that ""such search shall be made in accordance therewith"" does not in my opinion control

the pursuit of search.

In the light of the above facts, we are not inclined to exercise the discretion in favour of the petitioners.

In the result, the habeas corpus petition is dismissed.

Petition dismissed.