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P.Palanivel vs Inspector Of Police on 29 June, 2011

Madras High Court P.Palanivel vs Inspector Of Police on 29 June, 2011

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.06.2011

CORAM

THE HONOURABLE MS. JUSTICE R.MALA

CRL.R.C.No. 597 of 2006

P.Palanivel .. Petitioner/Accused

..Vs..

Inspector of Police

Velur Police Station

Namakkal District.

Cr.No.233/2000 .. Respondent/Complainant

Prayer:- This Criminal Revision Case is filed under Sections 397 read with 401 of Cr.P.C., to set aside the conviction imposed in C.A.No.109/2005, dated 30.05.2006, on the file of Additional District and Sessions Court-cum-Fast Track Court, Namakkal, confirmed and modified the order dated 25.10.2005, in C.C.No.146/2005, on the file of the learned Judicial Magistrate’s Court No.II, Namakkal. For Petitioner : Mr.N.Sudharsan

For Respondents : Mr.I.Subramanian State Public Prosecutor for

Mr.C.Emalias and

Ms. M.F.Shabana

Govt. Advocate (Crl. side)

ORDER

The learned Judicial Magistrate in C.C.No.146/2005, dated 25.10.2005, convicted the accused for the offence under Sections 506(i) I.P.C. (3 counts) and 506(ii) I.P.C. (5 counts) and sentenced him to undergo two years’ simple imprisonment for the offence under Section 506(i) I.P.C. (3 counts) and sentenced him to undergo three years’ simple imprisonment for the offence under Section 506(ii) I.P.C. (5 counts) and to run the sentence consecutively. But, he was acquitted for the offence under Sections 193 I.P.C. (7 counts) and 420 I.P.C. (7 counts). The aforesaid judgment was confirmed by the learned Additional District and Sessions Judge (Fast Track Court), Namakkal. But, since the accused was in prison for 743 days, his sentence alone has modified concurrently instead of consecutively, against which, the present revision has been preferred by the accused/revision petitioner.

2.The case of the prosecution is as follows:

On 27.05.2000, P.W.1 Advocate Mr.Palaniappan received notice from the Special Court, Paramathi Vellore, Namakkal District, under Ex.P1 dated 26.05.2000, in which, it was stated that P.W.1 has to pay compensation to one Varadhammal and in respect of the same, he has to send a reply within a week, if otherwise, he will be set ex-parte. So P.W.1 has preferred a private complaint under Ex.P3 on 05.06.2000 before the learned Judicial Magistrate, Paramathi Vellore, who has referred to the matter under Section 156(3) Cr.P.C. to the respondent police herein. The respondent police herein registered the case and investigated the same and filed a charge sheet under Sections 193, 420 and 506(i) I.P.C.

3.The trial Court after following the procedure, framed necessary charges. Since the accused pleaded not guilty, the trial Court, on considering the evidence of P.W.1 to P.W.11 and Exs.P1 to P16, Ex.D1, acquitted the accused from the charges levelled against him for the offence under Sections 193 I.P.C. (7 counts) and 420 I.P.C. (7 counts), but he was convicted for the offence under Sections 506(i) I.P.C. (3 counts) and 506(ii) I.P.C. (5 counts) and sentenced him as stated above, which was ordered to be run consecutively, against which, the accused preferred an appeal in C.A.No.109/2005, on the file of the Additional District and Sessions Court-cum-Fast Track Court, Namakkal, which was confirmed the conviction and sentence passed by the trial Court, but ordered to run the sentence concurrently instead of consecutively, against which, the present revision has been preferred by the petitioner/accused.

4.Challenging the conviction and sentence passed by both the Courts below, the learned counsel for the revision petitioner/accused submitted that P.W.1 has preferred a private complaint without approaching the concerned police. Only on the basis of the complaint sent by the learned Magistrate, Paramathi Vellore, the case has been registered in Cr.No.233 of 2000 for the offence under Sections 193, 420 and 506(i) I.P.C. As per the decision reported in 2003 (2) CTC 270 (M/S.Pasumai Irrigation Limited v. M/S.Mansi Finance (Chennai) Limited), a private complaint can be entertained only when complaint to police is either refused to be registered or after entertaining complaint, police has referred the case as mistake of law or fact, or undetectable case or case of civil nature. The Magistrate cannot usurp the jurisdiction of police by entertaining private complaint at the first instance without prior complaint to police.

5.The second limb of the argument advanced by the learned counsel for the petitioner that the complaint itself is not made out on the ingredients of Section 506 I.P.C. The threat should be a real one and not just a mere word when the person uttering it does exactly mean what he says and also when the person at whom threat is launched does not feel threatened actually. Empty threats does not prima facie mean that the case under Section 506 I.P.C. is made out against the petitioner. To substantiate the same, he relied upon the judgment of this Court rendered on 22.08.2008, in Crl.O.P. No.17028 of 2004, between Rajan and State, represented by Inspector of Police, Central Crime Branch, Tiruppur and submitted that the offence under Section 506 I.P.C. has not been made out. So the conviction and sentence passed by the trial Court confirmed by the first appellate Court are liable to be set aside and hence, he prayed for allowing of this revision.

6.Refuting the same, the learned public prosecutor Mr.I.Subramanian, advanced his argument by stating that it is not mandatory that the complaint should be first preferred before the concerned police, before private complaint has been filed before the concerned Magistrate. He submitted that the decision relied upon by the learned counsel for the petitioner reported in 2003 (2) CTC 270 is per incuriam. To substantiate his argument, he also relied upon the decision of the Apex Court. Further, the learned Public Prosecutor submitted that P.W.1 need not approach the police station for filing the complaint. He is entitled to approach the concerned jurisdictional Magistrate directly for preferring the private complaint, which is no way affected the case. He further submitted that as per the facts of the present case, the evidence has clearly proved that the offence under Sections 506 (i) and 506(ii) I.P.C. has been made out. So both the Courts below have considered this aspect in a proper perspective and came to the correct conclusion. Therefore, he prayed for dismissal of the revision.

7.Considering the rival submissions made on both sides.

8.The petitioner/accused, was having his shop at No.124/19, Anna salai, Paramathi Vellore, Namakkal District, who was illegally acted as a judge of Special Court, Namakkal District, has sent a communication to P.W.1 stating that P.W.1 has not paid the compensation amount pertaining to the motor claims Tribunal, which leads to mental agony to the claimant/Varadhammal. Hence, he directed P.W.1, who is an Advocate, to sent a reply within a week, if otherwise, he will be set ex-parte. As soon as P.W.1 received the same, he preferred a private complaint before the learned Judicial Magistrate, Paramathi Vellore, Namakkal District. The petitioner/accused not only issued a notice to P.W.1, he also issued notice to P.W.2-Gunaseelan under Ex.P4 and P.W.3-Ayyappan under Ex.P5. P.W.2 was working as sub-registrar in Sub-registrar office, Paramathi Vellore. In his evidence, he stated that on 01.06.2000, he received a notice under Ex.P4 from the petitioner, who was posed as Judge Palanivel, Special Court, Namakkal District, stating that he should be appeared before the Special Court. On 10.06.2000, the petitioner/accused, who was illegally acted as a Judge of the Special Court, stated that he was going to lock the sub-registrar office. In pursuance of the same, the accused also locked the office. On 12.06.2000, when P.W.2 was going to office, he came to know that the petitioner/accused locked the office with three locks. Then, he broke open the same. Likewise, P.W.3, who was working as Bank Manager in Canara Bank also received the notice under Exs.P5, P7 and P8. As per the notice under Ex.P5, the petitioner stated that to eradicate the culprits, he constituted a Special Court and to run the same effectively, he need some money. For that purpose, he made a collection through hundi and instructed P.W.3 to give suitable date and time for collecting money from him as donation. As per notice under Ex.P7, the Special Court constituted by the petitioner/accused, ordered death sentence to the following persons: P.W.4-Jagannathan, P.W.5-Dr.Jegannathan, P.W.6-Neelakanda subramanian, P.W.7-Dr.Arunagiri and P.W.8-Dr.Kannappan. As per the letter under Ex.P8, P.W.3 has to appear before the Special Court, to give explanation in respect of the debts, if otherwise, he will be set ex-parte. During the investigation only, search has been made at the residence of the accused as well as his business place in the presence of Senthil and one Veerappan and Senthil was examined as P.W.10.

9.Admittedly, P.W.2 to P.W.8 have not preferred any complaint before the concerned jurisdictional police station, P.W.1 alone has preferred a private complaint as soon as he received the notice under Ex.P1 from the petitioner/accused before the concerned jurisdictional Court and that has been received and forwarded by the learned Magistrate, Paramathi Vellore, to the respondent police under Section 156(3) Cr.P.C. Now it is appropriate to incorporate Sections 2(d) and 156(3) Cr.P.C. “2(d).”Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation:A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;”

“156.Police officer’s power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.”

10.At this juncture, it is appropriate to consider Section 190 Cr.P.C., which is extracted as follows:

“190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

(a) Upon receiving a complaint of facts which constitute such offence;

(b) Upon a police report of such facts;

(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.”

Section 190 Cr.P.C. clearly shows that a Magistrate empowers to take private complaint either he take cognizance or he forward the complaint under Section 156(3) Cr.P.C. for investigation. It is the duty of the Officer in charge of the concerned police station to register an F.I.R., when investigation under Section 156(3) Cr.P.C. is directed by the Magistrate, even when the Magistrate explicitly does not say so. It is clearly revealed by the following decision reported in (2006) 1 SCC 627 (Mohd. Yousuf v. Afaq jahan (smt) and another), in paragraph-11, it was held as follows: “Held: Any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) Cr.P.C. But if he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an F.I.R. There is nothing illegal in doing so. After all registration of an F.I.R. involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) Cr.P.C. that an F.I.R. should be registered, it is the duty of the officer in charge of the police station to register the F.I.R. regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in chapter XII Cr.P.C. only thereafter. “

In the above paragraph, it was specifically mentioned that there is no particular format for a complaint. Nomenclature is also inconsequential. A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprits be suitably dealt with, as in the instance case, is a complaint. So the private complaint received by the Magistrate and forwarded to the concerned jurisdictional police station with the direction to register the case and investigate the case under Section 156(3) Cr.P.C. will not vitiate the entire proceedings as per the dictum of (2006) 1 SCC 627.

11.Now it is appropriate to consider Section 200 Cr.P.C., which is extracted as follows:

“Chapter XV-Complaints to Magistrates

“200.Examination of complainant.

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or

(b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.”

So as per Section 200 Cr.P.C., a complaint has been given by the complainant/P.W.1 to the learned Magistrate and the learned Magistrate by invoking Section 156(3) Cr.P.C., he forwarded the complaint to the respondent police and directed him to register the case and investigate the same. On that basis only, investigation has been conducted and charge sheet has been filed. So I do not find any illegality or infirmity committed by the trial Court for forwarding the case under Section 156(3) Cr.P.C. for investigation.

12.At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the petitioner reported in 2003 (2) CTC 270, wherein the private complaint has been preferred for the offence under Sections 406, 420 read with 34 I.P.C. and that has been taken as cognizable offence and charges framed. Then, quash petition has been filed under Section 482 Cr.P.C. At that time, it was held that the private complaint can be entertained only when complaint to police is either refused to be registered or after entertaining complaint police referred the case as mistake of law or fact, or undetectable case or case of civil nature and the Magistrate cannot usurp jurisdiction of police by entertaining private complaint at the first instance without prior complaint to police. But the above citation is not applicable to the facts of the present case, because in that it was specifically mentioned that attitude of the Magistrate and police authorities in entertaining complaints with regard to matters of civil nature and usurping jurisdiction of Civil Court was condemned and deprecated. While considering the facts of the case in the above decision, there was a dispute between two companies and the dispute is purely civil in nature. The learned Judge therein has stated that since it is a case of civil in nature, the Magistrate has entertained the complaint definitely outside the ambit of criminal jurisdiction and hence, it was quashed. But, the case on hand, on the basis of the documentary evidence only, the complaint has been filed for the offence under Sections 506(i) and 506(ii) I.P.C.

13.Now it is appropriate to consider the decision relied upon by the learned Public prosecutor in Crl.Nos.2082 to 2112 of 2011, 2115 and 2116 of 2011 (Narmada Bachao Andolan v. State of Madhya Pradesh and another, State of Madhya Pradesh v. Narmada Bachao Andolan, Narmada Hydro Electric Development Corporation Limited v. Narmada Bachao Andolan and another), in paragraphs-59 and 60, it was held as follows: “59. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide: Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38; Govt. of Karnataka & Ors. v. Gowramma & Ors., AIR 2008 SC 863; and State of Haryana & Anr. v. Dharam Singh & Ors. (2009) 4 SCC 340). 54

PER INCURIAM – Doctrine:

60. Incuria” literally means “carelessness”. In practice per incuriam is taken to mean per ignoratium. The Courts have developed this principle in relaxation of the rule of stare decisis. Thus, the “quotable in law” is avoided and ignored if it is rendered, in ignorance of a Statute or other binding authority. While dealing with observations made by a seven Judges’ Bench in India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. etc., AIR 1990 SC 85, the five Judges’ Bench in State of West Bengal v. Kesoram Industries Ltd. & Ors., (2004) 10 SCC 201, observed as under:- “A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context, ………. A statement caused by an apparent typographical or inadvertent error in a judgment of the Court should not be misunderstood as declaration of such law by the Court.” (Emphasis added) ”

The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact situation of the decision on which reliance is placed. As already stated that the facts of both the cases are entirely different. Applying the dictum laid down in the citation and considering the facts of the present case, I do not find any illegality or irregularity committed by the Magistrate, who had taken the private complaint on file and forwarded the same to the respondent police under Section 156(3) Cr.P.C. for registering the case and investigating the same. So the arguments advanced by the learned counsel for the petitioner that without preferring the complaint before the concerned jurisdictional police station, the private complaint preferred before the Magistrate is vitiated the case of the prosecution, does not merit acceptance.

14.Now this Court has to decide whether the offence punishable under Sections 506(i) and 506(ii) I.P.C. are proved by the prosecution beyond reasonable doubt. Now it is appropriate to incorporate essential ingredients of Section 506 I.P.C.

1.Accused threatened complainant, his person, property or reputation or the person or reputation of any one in whom he is interested.

2.Threat was with intent to (1) cause alarm to complainant. (2) to cause complainant to do any act which he was not legally bound to do, (3) to cause to omit to do any act which he was legally entitled to do.

3.Threat given was (1) to cause death, (2) to cause grievous hurt, (3) to cause destruction of any property, (4) to cause an offence punishable with death, imprisonment for life, imprisonment for a term which may extend to 7 years or to impute unchastity to a woman.

4.Accused intended complainant so threatened or alarmed to do any act which he was not legally bound to do or to omit to do any act which the complainant was legally entitled to do as the means of avoiding the execution of such threat.

On considering the evidence of P.W.1 to P.W.8., the accused has threatened the complainant. As per the evidence of P.W.2, the accused has caused destruction to the property (i.e.), the accused locked the sub-registrar office, without having any power. As per the evidence of P.W.3, the petitioner/accused acted himself as a Special Judge, in Special Court, Paramathi Vellore, which was specially constituted by him. Moreover, the evidence of P.W.4 to P.W.8 have proved that the accused is going to pass a death sentence to them, if they will not comply with the demands and request and obtain approval from him. It is an intimidation with an intention to cause such a destruction of any property or to threat or to cause an offence punishable under Sections 506(i) and 506(ii) I.P.C. So the evidence of P.W.1 to P.W.8 have clearly proved that the accused threatened to cause death to P.W.4 to P.W.8. So the trial Court and the first appellate Court convicted the accused for the offence under Sections 506(i) I.P.C. (3 counts) and 506(ii) I.P.C. ( 5 counts). The petitioner/accused in his evidence, at any point of time, he never stated that he never issued such notice to the witnesses. Admittedly, he issued notice under Exs.P1, P4, P5, P7, P8, P9 and P11. So the petitioner/accused, who was illegally acted as a Judge and made a criminal intimidation against P.W.1 to P.W.8 and made a life threat to them have been clearly proved.

15.Nowadays, the public are taken law in their own hands and they themselves acted as they are judges and they summon and ill-treated the people as well as threatened the higher officials and grab amount from them. If that has been not viewed seriously, it will be affected entire society. Nowadays, to safeguard the interest of justice, this kind of offence has to be eradicated by the Court with iron hands.

16.While the petitioner himself cross-examined the witnesses, he never posed a suggestion to the witnesses P.W.1 to P.W.8 that he has not sent the notice under Exs.P1, P4, P5, P7, P8, P9 and P11, in such circumstances, I am of the view that both the Courts below have considered all the aspects in proper perspective and came to the correct conclusion that the accused was guilty for the offence under Sections 506(i) (3 counts) and 506(ii) (5 counts) I.P.C. Hence, I do not find any merits in the argument advanced by the learned counsel for the petitioner.

17.The learned counsel for the petitioner also submitted that when a search has been made in the place of the petitioner/accused, no materials were seized either the letter pad or rubber stamp. It is true that Exs.P12 to P15 are the search warrants and the search has been made in both the house and shop of the petitioner by P.W.11-Inspector of police and the attester was examined as P.W.10. But, no materials have been seized. As already stated that the petitioner/accused never stated that he has not sent any notice and he is not a signatory. Even when the accused was questioning under Section 313 Cr.P.C., he never denied that he has not issued such notice and orders to the witnesses. In such circumstances, I do not find any merits in the argument advanced by the learned counsel for the petitioner. On considering the cumulative facts of the documents, without any authority, the petitioner/accused himself posed as a Judge as such he constituted a special Court and illegally acted as a Judge and issued notice that too death sentence to P.W.4 to P.W.8 and made a criminal intimidation. So all the facts have been considered by both the Courts below in a proper perspective.

18.At this juncture, it is appropriate to consider the decision of this Court relied upon by the learned counsel for the petitioner reported in Crl.O.P.No.17028 of 2004, wherein the threat should be a real one and not just a mere word when the person uttering it does exactly mean what he says and also when the person at whom threat is launched does not feel threatened actually. Empty threats does not prima facie mean that the case under Section 506 I.P.C. is made out against the petitioner. But, here, the evidence of P.W.1 to P.W.8 have clearly proved that the threat is actually real one. Furthermore, evidence of P.W.2 has been clearly proved that after issuance of the notice under Ex.P4, the petitioner/accused also locked the sub-registrar office (i.e.) the Government office, without authority, so it is a real threat not a mere word or may be threat. In such circumstances, the above citation is not applicable to the facts of the present case.

19.On considering oral and documentary evidence as well as the judgment passed by both the Courts below, I am of the view that the petitioner/accused is guilty for the offence under Sections 506(i) I.P.C. (3 counts) and 506(ii) I.P.C. (5 counts). Hence, the judgment of conviction and sentence passed by both the Courts below are hereby confirmed and therefore, it does not warrant any interference.

20.In respect of the quantum of sentence, the learned counsel for the petitioner submitted that the petitioner/accused is already in jail for 778 days, which equals to 2 years 48 days. Both the Courts below have convicted the accused for the offence under Section 506(i) I.P.C. (3 counts) and sentenced him to undergo two years’ simple imprisonment and that period has been already undergone by the revision petitioner herein. For the offence under Section 506(ii) I.P.C. (5 counts), both the Courts below have sentenced him to undergo three years’ rigourous imprisonment. But the revision petitioner herein was already undergone a period of 2 years 48 days. Considering the age of the revision petitioner, I am of the view that the period already undergone by the revision petitioner is treated as a sentence for the offence under Sections 506(ii) I.P.C. in respect of three years imposed by both the Courts below.

21.In fine,

The Criminal Revision is disposed of as follows:

(a) The conviction and sentence for the offence under Section

506(i) I.P.C. is hereby confirmed.

(b) The conviction for the offence under Section 506(ii) I.P.C. is

hereby confirmed.

(c) The sentence imposed by both the Courts below for the

offence under Section 506(ii) I.P.C. is reduced from three years

into the period, which was already undergone by the revision

petitioner/accused.

(d) Hence, the revision petitioner/accused is ordered to be set

free, if he was not required in any other case.

kj

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