Madras High Court
Ilampiraiyan vs Mr.Pethi @ Thirumalai Raja on 26 September, 2023
Crl.R.C.(MD)No.428 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.09.2023
CORAM
THE HON'BLE MR.JUSTICE P.DHANABAL
Crl.R.C.(MD)No.428 of 2019
Ilampiraiyan ... Petitioner
Vs.
1.Mr.Pethi @ Thirumalai Raja
2.Mr.Ayyappan
3.Mr.Arun @ Arunkumar
4.Mr.M.Mooventhan
5.Mr.Marbijohn
6.Mr.Selvakumar
7.Mr.Baskaran
8.Mr.Mariyappan ... Respondents
PRAYER : Criminal Original Petition filed under Section 397 r/w 401
of Cr.P.C., to set aside the order made in Cr.M.P.No.1708 of 2016, on the
file of the learned Judicial Magistrate Court, Rajapalayam dated
08.04.2019 and allow this revision petition.
For Petitioner : Mr.R.Karunanidhi
For R1 to R8 : No appearance
1/9
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Crl.R.C.(MD)No.428 of 2019
ORDER
This Criminal Revision Case has been filed to set aside the order
made in Cr.M.P.No.1708 of 2016, on the file of the Judicial Magistrate
Court, Rajapalayam, dated 08.04.2019.
2. The case of the petitioner is that on 26.08.2018 at about 12.00
p.m., the petitioner was on the way to his house from Rajapalayam Town
with his friend one Rajesh and at that time, one Pethi @ Thirumalai Raja
the Sub-Inspector of Police, who is the first respondent herein and one
Ayyappan, who were in vehicle check up in I.N.T.U.C.Nagar bus stop,
Rajapalayam and at the time, the said Rajesh who dropped the petitioner
had gone to his village. Thereafter, while the petitioner was walking on
the way to his house, the second respondent intercepted the petitioner
and seeking to call his friend namely Rajesh. For that, the petitioner
replied that he could not call to his friend because he had no cell phone
with him. Thereafter, the first respondent asked about the petitioner's
village, name and caste. The first respondent scolded the petitioner with
filthy language and abused his caste name and assaulted in the right side
ear and vehemently pushed the face of the petitioner. When the same
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Crl.R.C.(MD)No.428 of 2019
was questioned by the petitioner, the respondents 1 & 2 illegally taken
the petitioner to the police station and physically assaulted and thereby,
he sustained injuries and there was a bleeding in the ear, nose and eyes of
the petitioner. After the custodial torture, the respondents 1 & 2 had
severely humiliated the petitioner in the custody with derogatory words.
Thereafter, a false case was registered against the petitioner in Cr.No.519
of 2018 for the offences under Sections 294(b), 353, 506(i) of IPC.
Thereafter, the petitioner was taken to the 7th respondent hospital. At the
time, the doctor, without seeing or providing any treatment to the
petitioner, has given a medical certificate for remanding him in the said
false case. Therefore, the petitioner filed a private complaint under
Section 200 Cr.P.C., in Cr.M.P.No.1708 of 2019 before the learned
Judicial Magistrate, Rajapalayam. The learned Magistrate has dismissed
the said application on 08.04.2019 by holding that there are
contradictions between the statement of the witnesses. The learned
Magistrate has not perused the documents filed by the petitioner with
regard to the injuries sustained by him and stated that there are minor
discrepancies in the statement of witnesses.
3. The respondents have not filed any counter affidavit.
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Crl.R.C.(MD)No.428 of 2019
4. No representation for the respondent. Heard the learned counsel
for the petitioner and perused the materials available on record.
5. The learned counsel appearing for the petitioner would contend
that the respondents 1 to 6 assaulted the petitioner in the name of enquiry
and thereafter, filed the false case against the petitioner. The 7th
respondent, who is the doctor, has given a false certificate without
examining the petitioner and therefore, he filed a private complaint in
Cr.M.P.No.1708 of 2019 before the learned Judicial Magistrate,
Rajapalayam and the same was dismissed by the learned Magistrate on
the ground that there are certain contradictions between the statement of
witnesses. Those contradictions are minor contradictions. At the time of
taking cognizance, the learned Magistrate need not look into the veracity
of the witnesses. Already the police has foisted the false case against the
petitioner and the same was also pending. The respondents have
committed the serious offence and therefore, the petitioner has filed a
private complaint before the learned Magistrate and the learned
Magistrate without perusing the records and without analying the
evidence and documents adduced by the petitioner, wrongly dismissed
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Crl.R.C.(MD)No.428 of 2019
the petition. Hence, the order of the learned Magistrate is liable to be
dismissed.
6. Heard the petitioner side and perused the materials available on
record.
7. The petitioner has filed a private complaint as against the
respondents herein and therefore, the statement of witnesses was
recorded. After recording the statement, the learned Magistrate
dismissed the application by holding that there are major contradictions
between the statement of witnesses. It is seen from the statement given
by the petitioner that there are somany allegations as against the
respondent and prima facie materials are available to take the cognizance
and the learned Magistrate has failed to consider the statement of the
petitioner and merely dismissed the application by holding that there are
contradictions between the statement of witnesses. At the stage of taking
cognizance, the learned Magistrate cannot peruse the veracity of the
witnesses and the duty of the Magistrate is whether any primacy facie
material available to constitute the offence or not. As per the statement of
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Crl.R.C.(MD)No.428 of 2019
witnesses, some offences are made out and thereby without considering
the same, the learned Magistrate has dismissed the private complaint and
not even discussed about the documents filed by the petitioner and the
injuries sustained by the petitioner. Therefore, the order of the
magistrate is liable to be set aside.
7. At this juncture, it is relevant to rely the judgment of this Court
in 2005(3) CTC 531 Mukesh Jain S/o.Prem Chand vs. Balachander,
wherein in Para No.5 this Court held that:-
“5. The complainant has to be read along with
the sworn statement of the complainant recorded under
Section 200 of Criminal Procedure Code and they
should not be read disjunctively, since they supplement
and complement each other. The scheme and purport
of Sections 200, 203 and 204 of the Code are not
sufficient to show that the averments in the complaint
are not to be looked into for the purpose of taking a
decision either to dismiss a Complaint under Section
203 or to issue process under Section 203 to the words
“if any” occurring after the words “Statement on oath
of the complainant””. This makes it clear that
Complaint is also, at any rate, one of the records to be
looked into for the purpose of taking a decision under
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Crl.R.C.(MD)No.428 of 2019
Section 203 or 204 of the Code. It cannot be said that
Court can look into sworn statement only and not the
Complaint itself.”
8. Therefore from the said judgment it is clear that at the time of
taking cognizance the Magistrate has to look into the complaint and other
documents along with the sworn statement recorded by him. In the case
on hand, the learned Magistrate has looked into the sworn statement
above and failed to consider the complaint averments and documents.
Therefore, in view of the said judgment and as discussed supra, this
Court is of the opinion that the order passed by the learned Judicial
Magistrate, Rajapalayam in Cr.M.P.No.1708 of 2019, dated 08.01.2019
is liable to be set aside.
9. Accordingly, the order passed by the learned Judicial
Magistrate, Rajapalayam made in Cr.M.P.No.1708 of 2019, dated
08.01.2019 is set aside and the matter is remanded back to the learned
Magistrate, Rajapalayam for fresh consideration and the learned
Magistrate is directed to pass orders after perusing the complaint and all
the records and statement of witnesses.
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Crl.R.C.(MD)No.428 of 2019
10. With this observations, this Criminal Original Petition is
allowed.
26.09.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
am
To
The Judicial Magistrate,
Rajapalayam.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD)No.428 of 2019
P. DHANABAL,J.
am
Crl.R.C.(MD)No.428 of 2019
26.09.2023
https://www.mhc.tn.gov.in/judis
