Madras High Court
Kamala Devi vs State Represented By on 15 November, 2022
Crl.O.P(MD)No.11588 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.11.2022
CORAM :
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P(MD).No.11588 of 2022
and
Crl.M.P(MD).Nos.7304 and 7305 of 2022
1. Kamala Devi
2. Ganesan @ Ganesh Pandiyan
3. Lingaraj Pandiyan
4. Chelladurai Pandiyan
: Petitioners
Vs
1. State represented by
The Inspector of Police,
V.K. Pudur Police Station,
Tenkasi District.
(Crime No. 145 of 2015).
2. Subbaiah Pandian
: Respondents
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C, praying,
to call for the records in S.C.No.617 of 2017, on the file of the Subordinate
Judges Court, Tenkasi and quash the same against the Petitioners.
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Crl.O.P(MD)No.11588 of 2022
For Petitioners : Mr.R.Anand
For M/s.M.Saravanan
For R1 : Mr.R.Meenakshisundram
Additional Public Prosecutor
For r2 : Mr.S.Palanivelayudham
ORDER
This criminal original petition has been filed seeking to quash the case in
S.C.No.617 of 2017, on the file of the Subordinate Judges Court, Tenkasi, in so
far as the Petitioners are concerned.
2.When the case came for hearing on the earlier hearing date, the learned
counsel appearing for the Petitioner had already submitted his arguments. At
that stage, this Court had sought for remarks from the Subordinate Judge,
Tenkasi.
3.As per the submission of the learned Additional Public Prosecutor, the
case in S.C.No.617 of 2017 is pending before the learned Assistant Sessions
Judge, who had proceeded upto the examination of L.W.6 and the L.W.2 died.
The case arose out of a civil dispute, the accused and the victims are brother
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Crl.O.P(MD)No.11588 of 2022
and sister. It is the submission of the learned counsel appearing for the
Petitioner that the FIRs in Crime Nos.144 and 145 of 2015 are case and
counter, in which, the Investigation Officer had not acted fairly. As per the
submission of the learned counsel appearing for the Petitioner, the complaint
given by the Petitioner was closed as mistake of fact and other case in Crime
No.145 of 2015 was originally registered for the offence under Section 324 and
506(2) IPC, investigation had been completed and laid the final report for the
offence under Sections 147, 322, 307, 506(2) and 325 IPC, whereas, the
Petitioner herein also suffered injuries in the same clash. But, it was closed as
mistake of fact. The Petitioner herein had filed a protest petition in Crl.M.P.No.
2054 of 2019, which is pending. Therefore, this Court had sought for remarks
from the learned Judicial Magistrate, Alangulam. Accordingly, she had offered
her remarks stating that the case is keeping pending from 2019 onwards.
4.The learned Additional Public Prosecutor submits that the only
intention of the Petitioner is to prevent the sessions case from proceeding
further with the trial, which cannot be allowed. It is the submission of the
learned Additional Public Prosecutor that before the learned Assistant Sessions
Judge, the prosecution had examined the witnesses up to P.W.2. Considering
the origin of the case that it arose out of a clash during the measuring of the
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Crl.O.P(MD)No.11588 of 2022
property, for which, there was already an injunction was granted in favour of
the defacto complainant. Therefore, the protest petition is still pending with the
learned Judicial Magistrate.
5.It is the contention of the learned counsel appearing for the Petitioner
herein that if the sessions case is allowed to continue, the Petitioner, who had
also suffered pain and injuries will be convicted and the Petitioner's complaint
was thrown out by the Investigation Officer will suffer injustice. Therefore, in
the light of the judgment made by the Hon'ble Supreme Court in the case of
Sudhir and others Vs. State of M.P reported in (2001) 2 SCC 688 hearing the
307 IPC case was investigated by the Inspector of Police and the other case and
the complaint preferred by the Petitioner was investigated by the Sub Inspector
of Police.
6.As per the above ruling of the Hon'ble Supreme Court, the case and the
case has to be investigated by the same officer and investigation shall be carried
out to its logical conclusion in laying of two final reports. Here, is a case,
where the complainant in the counter case had preferred a case and the same
was registered in Crime No.145 of 2015, where the Investigation Officer had
altered the offence. Even though the case was originally registered for the
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Crl.O.P(MD)No.11588 of 2022
offence under Section 323 and 324 IPC and it was converted as 307 IPC and in
the investigation file had been handed over to the Inspector of Police, who had
conducted the investigation early, completed the investigation and laid the final
report in the year 2017 before the Court concerned, from where it was
committed to the Court of Sessions in the year 2017 itself. Now, the case was
proceeded with the examination of the Prosecution witnesses, whereas, the
Petitioner herein, who also suffered injuries and was hospitalised, whose
complaint was not taken to its logical conclusion, where it was handed over to
the Sub Inspector of Police, who had unfairly treated the complaint and closed
the complaint as mistake of fact. The learned counsel appearing for the
Petitioner invited the attention of this court to the statement of the witnesses
and the averments in the negative final report prepared by the Sub-Inspector of
Police, who had already made up his mind that he has to close the investigation
as mistake of fact, which cannot be accepted. Therefore, the Petitioner in
Crl.M.PNo.2054 of 2019 had filed the protest petition. Also, it is the
submission of the learned counsel appearing for the Petitioner that even though
a final report was filed in the case, which was altered as Section 307 in the year
2017. The notice of the negative final report in the Petitioner's complaint was
served on him belatedly. But, immediately, after receipt of notice, he has filed a
protest petition in Crl.M.P.No.2054 of 2019.
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Crl.O.P(MD)No.11588 of 2022
7.Considering the submissions made by the learned counsel appearing
for the Petitioner and the learned Additional Public Prosecutor and the learned
Counsel appearing for the second respondent, the learned Assistant Sessions
Judge is directed not to proceed with the trial, till the disposal of the
Crl.M.P.No.2054 of 2019. The learned District and Sessions Judge, Tirunelveli
and the Chief Judicial Magistrate, Tirunelveli shall prevail upon the learned
Judicial Magistrate, Alangulam to dispose of the Crl.M.P.No.2054 of 2019 as
per law.
8.If the learned Judicial Magistrate, Alangulam accepts the negative final
report, as it is filed before her by the Sub Inspector of Police, V.K.Pudur Police
Station, in that circumstances, the Petitioner herein, who is also the Petitioner
in Crl.M.P.No.2054 of 2019, has the right to file the private complaint, in which
also, the Petitioner shall co-operate with the Court and see to it that it should be
disposed of within a reasonable period of two to three months, in which case,
the learned Principal Sessions Judge shall consider and pass appropriate orders
withdrawing whatever the case pending before the learned Judicial Magistrate
to the Court of the learned Assistant Sessions Judge to be tried along with the
case in S.C.No.617 of 2017. The learned Assistant Sessions Judge, Tenkasi
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Crl.O.P(MD)No.11588 of 2022
shall wait for the other proceedings till then. Thereafter, the learned Session
Judge shall pass appropriate orders. After completion of the same, the learned
Judicial Magistrate shall send a copy of the proceedings to the learned Chief
Judicial Magistrate as well as the learned Principal District and Sessions Judge,
Tirunelveli, for appropriate orders, so that the case in S.C.No.617 of 2017, shall
proceed. Till such time, it has to wait to proceed with the further with the trial.
The prosecution can examine upto the Investigation Officer. The learned
Assistant Sessions Judge can proceed upto 313 proceedings, but he/she has to
wait till recalling of the witnesses as examined to the reported ruling Vinoth
Kumar Vs. State of Punjab.
9.The learned Assistant Sessions Judge, Tenkasi and the learned Principal
District Judge shall follow the ruling of the Hon'ble Supreme Court in the case
of Sudhir and others Vs. State of M.P reported in (2001) 2 SCC 688.
10.The reported ruling of the Hon'ble Supreme Court in Vinoth Kumar
Vs.State of Punjab is to be given an examination. In the facts and
circumstances of the case, the Petitioner herein and in the Crl.M.P.No.2054 of
2017 is to be granted time to recall the witnesses in the case of S.C.No.617 of
2017, after proceedings are completed in Crl.M.P.No.2054 of 2017.
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Crl.O.P(MD)No.11588 of 2022
11.With the above directions, this criminal original petition is disposed
of. Consequently, connected miscellaneous petitions are closed.
15.11.2022
Index :Yes/No
Internet : Yes/No
lr
To
1.The Inspector of Police,
V.K. Pudur Police Station,
Tenkasi District
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P(MD)No.11588 of 2022
SATHI KUMAR SUKUMARA KURUP, J.
lr
Crl.O.P(MD)No.11588 of 2022
15.11.2022
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