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Judgment
K.P. Sivasubramaniam, J.—This Revision is filed against the order of the Learned District Judge, Villupuram in Civil Revision Petition No.4 of 1996 dated 10.12.1996. In the said order the learned Judge had set aside the order of the learned Judicial Magistrate, No., Ulundurpet dated 15.03.1996 in C.C. No. 226 of 1995, rejecting the complaint under S. 203 of the Code of Criminal Procedure.
The respondent in the above Revision case, who was the complainant in C.C. No. 266 of 1995, an Advocate in Ulundurpet, had filed the complaint under S. 200 of the Code of Criminal Procedure for an offence under S. 169 of I.P.C. against the accused/petitioner herein who was the former Minister for the Adi-Dravida Welfare Department, Tamil Nadu.
The complainant has contended interdict that under the presidentship of Late. Mr. Kandasamy Padayatchi, who was three times member of Legislative Assembly for Ulundurpet Constituency, a Co-operative Housing Society was constituted in the year 1958 consisting of members belonging to various Sections of the society, purchased dry lands of nearly 15 acres in Keeranur Village and the newly developed area was named as Kanthasamypuram. On 25.03.1961, an extent of 1.96 cents was purchased by the society and after the allotment of few plots, nearly 0.60 cents of lands were allotted for the construction of Park, Play-ground and Temple. The said allotment was made only for public purposes. After the place was thus allotted by the society, it was vested with the town panchayat and had become the property of the town panchayat. While so, in September 1994, the accused who was the then Minister, by misusing his powers forced the officials to allot 6 and 3/4th cents for himself, another plot of the same extent in favour of his wife Tmt. Chitra Anandhan totaling 0.13 cents and other plots of 3 to 4 cents to his lieutenants. The complaint having come to know of all the said details, issued notices to the accused, Deputy Registrar, Housing, Cuddalore, Special Officer, Ulundurpet, Housing Co-operative Society, Ulundurpet and to the Secretary of the said society on 04.10.1994 informing them that the plots should be surrendered and on the failure to do so, he would sue in the Court of law. Further, it was stated that no reply was received from any of them and that he came to know that the plans submitted by the accused were being sanctioned. The complainant had also referred to the Code of Conduct of Ministers prescribed by G.O.Ms. No. 1012, Public (Special) dated 29.05.1959, holding that a Minister or Chief Minister after taking office, and so long he remains in office should refrain from, buying from or selling to the Government any immovable property except where such property, is compulsorily acquired by the Government in the usual Course. Consequently, according to the complainant, the accused was in office in the Government of Tamil Nadu and being a public servant, he was not entitled to purchase the lands for himself and for his wife and that as such he was punishable under S. 169 of I.P.C. The complainant further stated that since the offence was not committed by the accused while acting or purporting to act in the discharge of the official duty, no sanction was required under S. 197 of the Code of Criminal Procedure.
Before the learned Magistrate, Ulundurpet, the complainant had examined himself among five witnesses and marked 8 documents as Exhibits. Certain official witnesses were also examined in the enquiry under S. 202 of the Code of Criminal Procedure.
C.W.I, Senkathali who was employed as a Sub-Registrar in the Sub-Registrar Office, Ulundurpet had spoken about the purchase of the property by the accused and in favour of his wife. C.W.2, Murugesan was the Deputy Registrar of the Co-operative Society, Cuddalore. He had chosen to file only the notice received from the complainant and he has stated that he did not take any steps to produce the other records even though he had received summons. He also has given an undertaking to produce the other relevant records as summoned. C.W.3, Sethuraman, who was the Special Officer of the Co-operative Society, Ulundurpet has also adopted the same attitude as C.W.2. He has not produced the records in spite of having received the summons and has asked for an adjournment in order to produce the records.
The Official witnesses have not produced the relevant documents in spite of having received the summons from the Court. The official witnesses had requested for time to produce the documents as summoned. The learned Magistrate has chosen to proceed with the enquiry under S. 202 of the Code of Criminal Procedure, and had consequently chosen to hold that there was no sufficient material to sustain the complaint.
On the issue as to whether any sanction is required or not, the learned Magistrate has not recorded any specific finding. But, on the merits of the complaint, the learned Magistrate has chosen to discuss the evidence referred by the various witnesses, and had come to the conclusion that there was no basis for sustaining the complaint.
Aggrieved by the said order, the complainant filed the Revision Petition before the Learned Sessions Judge, Villupuram, who by his order dated 10.12.1996 allowed the Revision Petition by setting aside the order of the learned Magistrate, Ulundurpet and directed the Magistrate, to take the complaint on file. As against the said order of the learned Sessions Judge, Villupuram the present Revision Petition has been filed.
As stated earlier, various official witnesses were examined. In spite of receiving summons from the Court, they had chosen to refrain from producing the relevant documents before the Court. They have also asked for time to produce we documents as summoned. While so, it is rather curious that the learned Magistrate should have proceeded further by dismissing the complaint. The complainant cannot be blamed for the non-production of the relevant records which ought to have been produced by the officials in obedience to the summons received from the Court. The failure on the part of the said officials is highly irregular and amounts to disregard of the process of the Court, and the learned Magistrate instead of either taking appropriate action against them or atleast granting adjournment to enable them to produce the records, had chosen to dismiss the complaint, by holding that the complaint was not based on sufficient materials.
Therefore, the order of the learned Sessions Judge, setting aside the order of the Magistrate cannot be stated to suffer from any infirmity. However, learned counsel for the petitioner would contend that inasmuch as no notice of the Revision Petition before the learned Sessions Judge was given to him before the enquiry in the said Revision petition, the order of the learned Sessions Judge was illegal and unsustainable.
The learned Counsel relied on S. 399 of the Code of Criminal Procedure which states that "In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-Section (1) of S. 401". S. 401 deals with High Court''s powers of Revision, in which Sub-section 2 of 401 states that "No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence". It is the claim of the learned counsel for the petitioner that the learned Sessions Judge ought not to have passed orders adverse to him without giving an opportunity of being heard. It is not in dispute that the order in the Revision by the learned Sessions Judge came to be passed without notice to the petitioner herein.
However, learned Senior Counsel appearing for the respondent brought to my notice a judgment of this Honourable Court reported in 1983 L.W. (Crl.) 212 (S. Thiyagarajan v. Ayyantperumal and State). After analysing the various provisions, M.N. Moorthy, J. has held that "in a revision filed against an order of dismissal under S. 203, Criminal Procedure Code, the Sessions Judge need not give notice to the accused". The learned Judge also relied on a judgment of Rat-navel Pandian, J. (as he then was) reported in 1975 L.W. (Crl.) 162 (Vellapandi alias Maruthian Thevar and Others v. Annathaiammal and Other). He has also referred to the judgment reported in 1978 L.W.(Crl.) 178 (Jalaludeen v. Syed Ibrahim and Another).
In an earlier decision of our High Court in Thanikachala Mudali v. Ponnappa Mudali (1947 MW (Crl.) 98), Yahya Ali, J. has held that where a Magistrate dismisses a complaint without issuing process to the accused, the accused person cannot be said to have been discharged within the meaning of the proviso to S. 436 of Crl. P.C, and therefore, no notice is necessary to him when the Sessions Judge directs further inquiry into the complaint. A Division Bench of this Court in the judgment reported in AIR 1997 Mad 19 (Appa Rao v. Janaki Ammal) has held that when a complaint is dismissed under S. 203 Crl. P.C. notice to the accused is not necessary before ordering further enquiry.
Therefore, having regard to the rulings as mentioned above, the order of the learned Sessions Judge cannot be stated to suffer from any irregularity for the reason that no notice was issued to the respondent/accused.
On the issue as to whether sanction was necessary under S. 197 of Code of Criminal Procedure, the learned Sessions Judge, though he had incorporated the pleadings of the complaint in his order has not recorded any positive finding as to whether sanction was necessary or not. At that stage, the requirement of sanction did not arise. I also leave the question as regards the requirements of sanction to be decided by the Trial Court at the appropriate stage, after the Trial Court takes cognizance of the complaint.
Having regard to the facts of the case and request made by the counsel for the complainant, me learned Sessions Judge has thought to fit transfer the case from the file of Judicial Magistrate No.1, Ulundurpet to the Judicial Magistrate No. II, Ulundurpet. I do not see any reason, to interfere wide the said order of the learned Sessions Judge. I do not find any merit in the above Revision Petition and the same is dismissed. The learned Judicial Magistrate No. II, Ulundurpet is directed to take the complaint on file and proceed further with his enquiry as directed by the learned Sessions Judge and after issuing due process to the official witnesses with directions to produce all the relevant records and to consider the complaint in the light of materials to be place before him.
In the result, the Criminal Revision Petition is dismissed. Consequently, the connected Criminal Miscellaneous Petitions are also dismissed.