Malayathal vs Tirumurthi and Others

Ratnavel Pandian, J.—This is a revision petition preferred by the complaisant against the order dated 3rd November 1973, made in Cr. R.P. 6 of 1973 on the file of the court of the District Magistrate (J), Coimbatore, confirming the order made in P.R.C. 8 of 1973, on the file of the court of the Sub Magistrate, Pellachi(sic), discharging of the Respondent-accused.

P.R.C. No. 8 of 1973 arose on a private complaint filed by the present revision Petitioner against the accused for an offence under Ss.143, 427, 307, 447 and 323, I.P C., alleging that the accused committed rioting with revolver, attempted to commit the murder of Malayathal (complainant) and one Tirumalaiswami, caused hurt to the said Tirumalaisaml and also committed criminal trespass into the land of the complainant on 7th September 1972 at 6 p.m., at Devanallur. Originally the case was filed in the court of the Sub Magistrate, Udumalpet, and the sworn statement was recorded from the complainant and the case was taken on file under Ss 307, 447 and 323, against all the accused and summonses were issued. Later, the case was transferred to the file of the Sub Magistrate, Pollachi, as per the orders of the Sub Divisional Magistrate, Pollachi.

The prosecution case was briefly as follows: The complainant Malayathammal, (P.W.1) is the owner of S. Nos. 387 and 217(3) in Devanallur village and accused 2 is the owner of S. Nos. 388 and 389 to the west of her land and another land in S. No. 218 east of her land. Accused 2''s cattle used to be taken through the land of P.W.1 in spite of her protest. At the time of the occurrence in September 1972, P.W. 1 had raised onlons(sic) and chlues(sic) in her land and on 9th September 1972, at 6 p.m. when P.W.1 and her servant P.W. 2 were in the pial of P.W. 1''s garden house in S. No. 387, accused 1 to 6 came from south to north-east of her garden house, accused 1 driving bis cattle with a stick in his hand, followed by accused 3 to 6 with sticks and accused 2 with a revolver. As the bulls were trampling over the plants and causing damage, P.W. 1 obstracled(sic) the bulls by catching the nose-string of the bulls. Accused 2 then threatened to do away with her and picked up a stone and pelted it on her. P.W. 2 intervened and objected to the act of accused 2 and the stone pelted by accused 2 hit P.W. 2 on his chest. Then, accused 2 threatened to shoot P.W. 2 with a revolver and took it out of his shirt covering and removed the cover of that Weapon and aimed the revolver at P.W.1. P.W. 2 intervened. When the trigger was palled, there was heavy smoke and some of the pillets his P.W. 2''s right hand and he got shoked and fell down. Accused 2 shouted "beat him to pieces" and to close him and thereupon accused 1, 3, 4, 5, and 6 beat him indiscriminately with stones. P.W.1 raised alarm and P.W. 3 Marappan and P.W. 4 Natarajan came there and the accused on seeing them left the scene. Accused 2 dropped the cover of the revolver when he ran away.P. Ws. 1,3 and 4 removed P.W. 2 to the pial of the garden house and as 8 p.m. and after he regained consciousness, P.W. 2 was taken by P. Ws. 1 and 3 and one Ramaswami to the Pollaehi hospital for treatment and as the hospital authorities refuted to admit P.W. 2 without a police report, P.W. 2 was then taken to Gomangalam police station with a complaint Ex. P. 7, written by a document writer at Pollachi and from the police station, P.W 2 was sent to the Udumalpet hospital for treatment. The police did not enquire into the case and did not even serve the ''refer'' notice on her, but obtain d her thumb impression in the ''refer'' notice not disclosing the nature of the disposal. Sc, this private complaint was filed.

The complainant examined P Ws. 1 to 7 and marked Ex P. 1 to P. 7 on her side. The accused, when examined, denied the allegations and states that accused 2 did not commit the offence and that the cart(sic) track is a common cart track in which he used to take carts and bulls and that P.W. 1 had wantonly filed this case after obsructing (sic) the bulls of accused 2 that evening. Accused 2 also requested that three registered deeds filed by him in his counter case C.C. 299 of 1973, against P.W. 2 to be read, as part of his statement in his case, which recognised the right of way in the scene place as early as 1913 and 1920 by the owners of the lands before they came to P.W. 1''s husband. The accused also examined D.W. 1, the Medical officer at the Government Hospital, Udumalpet. On an examination of the entire evidence on record, both oral and documentary. The learned Snb Magistrate held that there was no prima facie case against any of the accused tor framing the charges under Ss 307, 323 and 447,I.P C. for being tried in the court of Session, and thus discharged all the accused under s.299 (1), Crl. P.C. Against this order of discharge P.W. 1, the complainant filed Crl R.P 6 of 1973, before the District Magistrate (J) Coimbatore, and the learned District Magistrate, agreeing with the findings of the learned Sub Magistrate, confirmed the order of discharge and dismissed the said revision petition. It is as against this order, the present revision petition has been filed.

Mr. Palaniswami, appearing for the Petitioner, baa raised the following contentions (1) The lower court has failed to note the evidence of P.W. 1 as being amply corroborated by the oral and documentary evidence adduced on the side of the complainant to make out a case for committal, especially in view of the evidence given by P.W. 5, the Medical Officer, who has treated P.W.2 for the injuries; (2) The lower court has failed to note that the first court has exceeded its jurisdiction in assuming the role of a trial court and has elaborately discussed the evidence as though it was sitting in trial and as such the order of discharge has resulted in serious prejudice and miscarriage of justice. (3) The lower Court ought to have committed the case as there was prima facie evidence for commitment. The learned Counsel has further pointed out that the District Magistrate (J), sitting on his revisional jurisdiction, has completely erred in entirely agreeing with the reasoning and findings of the learned Sub Magistrate and stating that it was unnecessary for him to repeat what the learned Magistrate bad stated in his earlier order. He also brought to my notice the observation of the District Magistrate, that the learned Magistrate had ventured to sift(sic) and weigh the evidence on record to find out the truth and urged that that observation itself is against the well-settled proposition of law that it is not for the committal court to assess the evidence as though it is sitting in trial.

Now, let us see what are the reasons give a by the learned Magistrate that are accepted by the District Magistrate. The learned Magistrate has given a finding that the evidence on the side of the prosecution is materially discrepant and contradictory and unworthy of any credence even for a prima facie evidence. To substantiate that finding, he has noted that it was surprising for him that not even a single pellet or smoke had affected P W. 1 who was close to P.W. 2 who is said to have been shot at by accused 2 and received injuries on the fingers and dorsum of his right hand, and that the evidence of P.W. 5 was inconclusive, vague and not supporting the prosecution case. He has taken into consideration the opinion evidence of D.W. 1, another senior Medical Officer of the hospital in which P.W. 3 was serving, for the purpose of discarding the evidence of P.W. 5. Then he has discussed the contradiction between the evidence of P.W. 1 and other witnesses about the scene, delay in laying the complaint and the right of way entitling the second accused to use the land of P.W. 1 as his predecessors-in-title have conveyed those rights by the three deeds produced by him in C.C. 299 of 1973. These are the main reasons which have been accepted by the District Magistrate (J) while confirming the order of the first court discharging the accused u/s 209(1), Crl.P.C.

Learned Counsel has relied on certain decisions, one of which is Public Prosecutor v. Murugatah 1970 L.w. Cri. 166 , wherein fit (sic) has been held that Ss.208 and 209 cover cases instituted otherwise than on a police report and in such cases he can discharge the accused person when he finds that there are not sufficient grounds for committing. That judgment has also followed Roghavan v. Abbas 1967 M.L.J. Cri. 738 wherein it was observed that the duty of appreciation of evidence in detail is that of the court of Session which alone has exclusive jurisdiction to try the offence and in a case where the evidence is such that two different views ere possible, the Magistrate should commit the case because it deserves greater scrutiny(sic) and fuller investigation. Following the principle, it was further observed-

It is not his (the committing Magistrate''s) duty to examine the prosecution evidence with nucul (sic) ous care, balance the evidence of one witness against the evidence of another, consider the probabilities and come to the conclusion on a doubtful point.

Then, he brought to my notice another decision in Almohan Das and Others Vs. State of West Bengal, , wherein their Lordships of the Supreme Court have held as follows-

A Magistrate holding so enquiry preparatory to commitment is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is sly(sic) unworthy of credit, it is his duty to discharge the accused; if there is some evidence on which a conviction may reasonably be based he must commit the case. The Magistrate at that stage, has no power to evaluate the evidence for satisfying himself of the guilt of the accused. The question before the Magistrate of that stage is whether there is some credible evidence which would sustain the conviction.

Following the above principles, the Supreme Court, in Rajpal Singh and Others Vs. Jai Singh and Another, . has observed that where the Magistrate has examined witnesses and held as on the spot inspection and did not stop to find out even if there was evidence which, if believed, would establish at least a prima facie case, but went on further to disbelieve that evidence by an elaborate and painstaking processes of examination in aid of which he brought to bear his own appraisal of inconsistencies, improbabilities, etc, and thus in fact tried the whole case, thereby forestalling the decision of a court of Session which alone had the jurisdiction to try such a case, his order of discharge must be set aside as being one in excess of jurisdiction.

Placing reliance on the above decisions, Mr. Palaniwami would vehemently contend that in his case the learned Sub Magistrate, by an elaborate and painstaking process of examination, has appraised the evidence with reference to the inconsistencies in the evidence of the witnesses and the improbabilities and disbelieved the medical evidence of P.W.5 in the light of the defence evidence viz., of P.W.1 who has been examined to give expert opinion and therefore the first court has in fact tried the case which it ought not to have done and the revisional court also, without examining the reasons given by the first court, has simply agreed with the first Court. Mr. Nainar Sundaram appearing for the Respondent accused, contends that the Magistrate is always entitled and bound to value and weigh the evidence and if he disbelieves the evidence and makes an order of discharge, the question whether it ought to be set aside or not would have to be answered depending on the reasonableness or other-wise of the order passed; Vide Parashran v. Emperor AIR 1933 Boms(sic) 158. Then, he brought to my notice the ruling in Renupada Dutta Vs. The State and Another, wherein the Calcutta High Court has observed that when the committing Magistrate had no reasonable doubt as to whether the prosecution story was to be believed or not, button the other band, he had no doubt whatever(sic) in his mind that the prosecution witnesses were not credible and also regarding the point that there was no legal evidence on record, from which be could come to a conclusion that there was a prima facie ease against the accused under any of the Section of the Indian Penal Code, and the enquiring magistrate bad given cogent reasons as to why he considered the evidence of the witnesses, witness by witness, untrustworthy, it was wrong for the Additional District Magistrate acting u/s 437, Crl. P.C. to set aside the order of discharge and order the committing Magistrate to commit the accused to the court of Session.

Though both parties have cited a number of rulings in support of their respective contentions, I am of the view that it is not necessary for me to recapitulate and recite all the decisions cited before me as the principle itself is well settled that only in cases where there are not sufficient grounds for committing the accused person for trial, the enquiry Court, after recording its reasons, can discharge him. Therefore, it is clear that It is the duty of the Magistrate to commit when the evidence of the prosecution is sufficient to make out a prima facie case against the accused persons. After going through the order of the lower court, it is seen that it has simply endorsed the reasoning of the learned Sub Magistrate, whose reasons for discharging the accused person would show that he has exceeded his jurisdiction by assessing and valuing the evidence and thus taking the role of a trial court. Under these circumstances the order of the District Magistrate (J) cannot be sustained.

In my view, the evidence adduced on the side of the complainant deserves greater scrutiny and fuller investigation. Therefore, it this stage, it cannot be said that this is a case where there is no ground justifying a committal. The courts below have eired(sic) in discharging the Respondents instead of leaving the matter for scrutiny by the court of Session.

For the reasons mentioned above, the order discharging the Respondents is set aside and I restore the case to file of the Judicial Second Class Magistrate, Pollachi, direct him to commit the case to the court of Session, the revision petition is allowed.