Madras High Court
G.Swaminathan vs Jayanthi on 2 July, 2021
Crl.O.P No.10558 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P No.10558 of 2021
G.Swaminathan ... Petitioner
Versus
Jayanthi ... Respondents
Criminal Original Petition is filed under Section 482 of Code of
Criminal Procedure, to direct the learned Judicial Magistrate, Thiruvottiyur,
to restore and return the first Judgment dated 29.01.2021 made in
D.V.No.17 of 2017.
For Petitioner : Mr.E.J.Ayyappan
ORDER
This Criminal Original Petition has been filed seeking a direction to
direct the learned Judicial Magistrate, Thiruvottiyur to restore and return the
first judgment dated 29.01.2021 made in D.V. No. 17 of 2017.
2.The petitioner seeks to set aside the Judgment dated 22.02.2021
made in D.V. No. 17 of 2017 passed after the correction on memo filed by
the petitioner in CMP No. 1402 of 2021 by passing the order dated
26.03.2021.
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Crl.O.P No.10558 of 2021
3.The contention of the petitioner is that the respondent initially filed
Domestic Violence case against him, his mother Balasundari and his brother
Senthilnathan. During the pendency of trial, the mother and brother of the
petitioner namely A-2 and A-3, have approached this Court by way of
Crl.O.P No.11493 of 2018 and this Court, by order dated 10.08.2018,
quashed the proceedings against the A-2 and A-3 in D.V. Case No. 17 of
2017. Thereafter, the proceedings as against the petitioner/A-1 continued
and by judgment dated 29.12.2020, a restraint order was passed restraining
the petitioner from entering into the house of the respondent. The petitioner
was also directed to pay maintenance of Rs.21,000/- on 5th of every
succeeding English Calander month, the gold Jewels of 43 items to be
returned and further a sum of Rs.25,000/- has to be paid as compensation to
the respondent.
4.The contention of the petitioner is that though the judgment dated
29.12.2020 was passed by the trial court, the same had been signed by the
Judicial Magistrate, Thiruvottriyur only on 29.01.2021. Further, apart from
the petitioner, his mother and brother were shown as respondents even
though the proceedings against them have been quashed by this Court.
Further, the petitioner has filed an appeal before the learned District and
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Crl.O.P No.10558 of 2021
Sessions Judge, Thiruvallur in Criminal Appeal SR.No. 1135 of 2021 on
01.03.2021 and on 02.03.2021, the appeal papers were returned with the
following endorsement "The lower court passed the judgment on
29.12.2020. The appeal ought to have been filed within 30 days, but the
petitioner submitted the appeal only on 01.03.2021. How this appeal is in
time has to be clarified". Since the District and Sessions Judge refused to
entertain the appeal, the petitioner has filed a Memo on 22.03.2021 before
the trial court stating that though the judgment is dated 29.12.2020, the
Judicial Magistrate, Thiruvottriyur had signed it only on 29.01.2021 and the
same has to be corrected as per Section 362 of Cr.P.C. and the original copy
of the judgment was submitted along with the memo.
5.Thereafter, the learned Judicial Magistrate, Thiruvottriyur had taken
the memo into consideration and issued notice to the respondent on
11.02.2021. The corrections were carried out and the corrected copy was
delivered to the petitioner by an order dated 26.03.2021. The petitioner
received the fresh copy of the judgment dated 26.03.2021 and was shocked
to find that certain corrections have been made in page No.7 in paragraph
no.(iii) wherein it is stated that in the original judgment it is mentioned as "1
Kjy; 3 tiu vjpu;kDjhuh;fSk;". In the present corrected copy of
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Crl.O.P No.10558 of 2021
the judgment, it has been mentioned that "vjpu;kDjhuh;". Likewise in
vjpu;kDjhuh;fshy;", corrected mentioned as that "vjpu;kDjhuh;". In
the finding in page No.9 (IV), it is mentioned as "j';f eiffis. 1
Kjy; 3 tiu vjpu;kDjhuh;fis", in page No.5 it is mentioned as "1
Kjy; 3 tiu vjpu;kDjhuh;fs; bra;j FLk;g td;Kiw" and
the same had been substituted by "vjpu;kDjhuh;". Hence, this petition has
been filed stating that as per Section 362 of the Code of Criminal Procedure,
only typographical errors can be corrected and not otherwise. The
corrections carried out by the learned Judicial Magistrate, Thiruvottiyur is
improper and further the judgment reflects how in perfunctory manner
without considering the facts of the case in its right perceptive and without
application of mind, the judgment has been delivered after the petitioner
filed a memo, the mistakes in the judgment corrected by the lower court is
improper and impermissible.
6.Considering the submissions and on perusal of the materials. It is
seen that initially respondent had lodged a complaint against the petitioner,
his mother and brother by filing D.V.C.No. 17 of 2017. Later, the
proceedings against the petitioner's mother and brother have been quashed
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Crl.O.P No.10558 of 2021
by this Court in Crl.O.P No. 11493 of 2018 by order dated 10.08.2018 and
the petitioner alone was proceeded with in D.V.C.No. 17 of 2017, later,
judgment was passed in D.V.C. No. 17 of 2017. Though in the order, in the
cause title, it mentioned as 29.01.2020, it is signed by the learned Judicial
Magistrate, Thiruvottiyur only on 29.01.2021. The first page of the
judgment is obviously an error which cannot be countenanced. Thereafter,
on the memo filed by the petitioner, the learned Judicial Magistrate, finding
mistake committed by referring to A-2 and A-3 and orders passed in favour
of them, despite the proceedings against them quashed by the Hon'ble High
Court, in the Judgment, they are mentioned. Thus, corrections have been
made by referring to the quashing of proceedings, against the petitioner's
mother and brother. Likewise, the substitution of the petitioner in the place
of respondents 1 to 3, wherever it appears, have been made. Though this
Court is not giving its opinion with regard to the substitution being carried,
now. One thing is certain, corrections were made, after filing of the memo
by the petitioner and these corrections will not cause any prejudice to the
petitioner.
7.On perusal of the judgment, the petitioner's mother and brother are
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Crl.O.P No.10558 of 2021
referred to only as the respondents. Admittedly, by the corrections, no
prejudice to the petitioner is caused. In view of the same, the copy of the
judgment issued to the petitioner in D.V.C. No. 17 of 2017 (before carrying
out correction) issued on 29.01.2021 is declared as non-est in law and the
judgment dated 22.02.2021 is the only Judgment in this case. Hence, the
question of limitation in filing the appeal does not arise. The petitioner is
directed to re-present the appeal papers on the basis of the corrected
Judgment dated 22.02.2021 before the leaned District and Sessions Judge,
Thiruvallur, within 30 days from the date of receipt of a copy of this order.
The learned District and Sessions Judge, Thiruvallur is directed to entertain
the appeal and dispose the same as per law.
8.Accordingly, the Criminal Original Petition is allowed.
Note to Registry:
The Judicial Magistrate, Thiruvottriyur is directed to submit his
explanation, at the first instance, as to the deliverance of the judgment in
D.V.C. No.17 of 2017 on 29.12.2020 and signing it belatedly on
29.01.2021. Further, when already the case as against A-2, Balasundari and
A-3, Senthilnathan quashed by this Court in Crl.OP No.11493 of 2018, why
orders against them in DVC No. 17 of 201. Further, on the memo filed by
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Crl.O.P No.10558 of 2021
the petitioner on 22.03.2021, orders passed on 26.03.2021 in CMP.No.1403
of 2021, based on the memo, the factual errors corrected by the learned
Judicial Magistrate, Thiruvottriyur. Further, when the order passed on
26.03.2021, but the judgment in D.V.No.17 of 2017 reflects, signed on
22.02.2021. Registry is therefore directed to call for an explanation through
the learned Chief Judicial Magistrate, Thiruvallur on or before 20.07.2021,
the explanation of the learned Judicial Magistrate, Thiruvottiyur. List the
Criminal Original Petition on 23.07.2021 "for reporting compliance".
02.07.2021
Index: Yes/No
Internet: Yes/No
klt
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Crl.O.P No.10558 of 2021
M.NIRMAL KUMAR, J.
klt
CRL.O.P.No.10558 of 2021
02.07.2021
https://www.mhc.tn.gov.in/judis/
