Shetty Viswanathan vs Doraiswamy

K.N. Mudaliyar, J.—Shetty Viswanathan is the petitioner. He is aggrieved by the order passed by the Sub-Magistrate No. 1. Salem is C.M.P. No. 1037 and 1042 of 1970, holding that proceedings are competent in spite of the lack of a complaint in writing by the Sub-Magistrate who tried and disposed of the case in C.C. No. 4267 of 1969. Therefore, the petitioner has fled the above revision against the order of the Sub Magistrate No. 1.

The petitioner has also filed C.M.P. No. 629 of 1971 with a prayer for quashing the proceedings in F.R.C. No. 9 of 1970 on the file of the Court of the Sub-Magistrate No. 1, Salem.

It is necessary to trace a brief history of the proceedings culminating in the criminal revision case No. 1570 of 1970 and Cr. M.P. 629 of 1971 before this Court.

On 16th November 1969, the petitioner filed complaint with certain averments against one T.K. Doraiswami and his adherents. Doraiswami, the respondent herein, was, according to the accused-petitioner, driving the bus, when Viswanathan (petitioner) was keeping to the extreme left, while coming from Fairylands Extension is his scooter. According to him, the bus driven by Doraiswami willfully dashed against his scooter. As a result of this, the scooter and himself were thrown out of the road and he fell down. The bus had about 3 or 4 persons in it. His further allegation against Doraiswami is that the dashing of the bus against the scooter was purposely done with a view to cause death or at least very serious bodily Injury to him which might permanently disable him for life. He had therefore asked little some action to be taken in proper proceedings against the Shetty Doraiswami and his adherents. These, in brief, were the vital allegations in the complaint filed by Viswanathan on 16th November 1969 before the Hasthampatti Police station. This come plaint ultimately ended is the Hasthampatti Police charge-shooting one drives Shanmugam, who pleaded guilty and paid a fine amount of Rs. 75 on 25th November 1969. On 18th September 1970, Doraiswami filed a complaint, wherein he had stated in paragraphs 4 and 5, as follows:

In spite of the fact that the complainant saves drove the bus, nor was he in the bus at the time alleged, the accused falsely charged the complainant having committed the offence either under S.307 or under S. 325 I.P.C., knowing that there was no just or lawful ground for such charge against the complainant. The act of the accused was deliberately made falsely due to enmity and to harass the complainant.

The accused has committed an offence under S. 211 I.P.C. of the later part. Even after the false charge, the accused is continuing to the false petitions to the Police against the complainant.

In the two paragraphs of his complaint, Doraiswami makes the over make that the petitioner falsely charged that he committed the offense either under S. 307 or under S. 325 I.P.C. knowing that there was no just or lawful ground for such charge against Doraiswami. His further averment is that the said Viswanathan (petitioner herein) has committed an offence under S. 211 (later part) I.P.C. The trial Magistrate appears to have taken this complaint under S. 211 part II, I.P.C. and treated the case as one of a preliminary register case.

The petitioner filed an appellation under S. 195 (1) Crl. P.C., stating that the court had no jurisdiction to entertain a private complaint under S. 211 I.P.C. for as offence committed in relation to a proceeding in C.C. No. 4267 of 1967 on the file of the Sub-Magistrate, No. II, Salem. In other words, the complaint ought to have emensted from the Sub-Magistrate I, under S. 195 (1) (b) Crl. P.C. and therefore, the court of the sub-Magistrate I, Salem, could not take cognisance of the offence under S. 211 (part II) I.P.C. As already observed by me, the Sub-Magistrate No. 1 rejected this argument of the learned counsel for the petitioner and held that the complaint filed by T.K. Doraiswami did not suffer from any illegality in terms of S. 195 (l) Crl. P.C.

Undoubtedly, on the allegations found in the complaint of Shetty Viswaaatiaa (the accused petitioner herein), I am unable to find that even prima facie, ingredient of S. 211 (part II) I.P.C. are made out. I do not find any allegation containing a false charge of an offence punishable with death, imprisonment for life, or Imprisonment for seven years or upwards. All that Viswanathan alleges is that with a view to cause death, the dashing of the bus against his scooter was purposely done. I am unable to find any materiel which would be tantamount to a false charge of an offence under S. 307 I.P.C. least, Argumently, the trial Magistrate was in error in taking the complaint filed by V.K. Doraiswamy on 18th September 1970 for an offence under the latter part of S. 211 I.P.C. and so far as this aspect of the matter is concerned, I have so hesitation in quashing the proceedings so far as the complaint relates to the letter part of S. 211 I.P.C.

In as much as the resultant proceedings would be one of a calendar case triable by a first class Magistrate, there is no either determine but to transfer the calendar case to be tried by any other Sub-Divisional Magistrate or I Class Magistrate geminated by the District Magistrate (J) Salem. It is open to the petitioner herein to raise the question relating to the bar imposed by S. 195 (1) (b) Crl. P.C. If such a legal argument avails him. Certainly, the finding given by the Sub-Magistrate I, Salem, will not be binding on the Sub-Divisional Magistrate, or First Class Magistrate who will try the case, and the opinion expressed by the Sub-Magistrate can be safely ignored. It is open to the petitioner to re-argue the matter.

In the result, the records shall be sent to the District Magistrate (J) Salem, who will transfer the case to any Sub-Divisional Magistrate or First Class Magistrate, (as he nominates) for fresh enquiry and trial.