Ramalingam vs Dhamodaran and Others

Rengasamy, J.—This revision is against the order of the learned Chief Judicial Magistrate, South Arcot at Cuddaore in Crl.M.P. No. 776/92 in CC. No. 8/92 dismissing the petition filed by the complaint u/s 209 read with Section 323 Code of Criminal Procedure.

The petitioner filed a complaint before the learned Chief Judicial Magistrate alleging mischief atrocities and robbery on account of political animosity. This complaint has been taken on file by the learned Chief Judicial Magistrate and after examining 9 witnesses on the prosecution side, the complainant filed this petition under Sections 209 and 323 Code of Criminal Procedure to commit this case to Sessions Court as the evidence discloses that offence has been committed u/s 395 Indian Penal Code

This petition has been dismissed by the learned Chief Judicial Magistrate and hence this revision

The learned counsel for the petitioner represents that there are specific allegations in the complaint for the assault on the victims and the witnesses also have spoken that they were beaten by the Police Officials when they looted their house, that the evidence available before the court, proves offence u/s 395 Indian Penal Code and therefore, the lower court ought to have committed this case to the Sessions Court and the petition filed u/s 209 and 323 Code of Criminal Procedure ought to have been allowed by the court below On a reading of the order of the learned Chief Judicial Magistrate, even the learned counsel for the respondent is not able to support this findings for the dismissal of the petition. As the petitioner is the complainant, naturally, he alone is competent to file the petition u/s 209 and 323 Code of Criminal Procedure to commit the case, if the evidence discloses that the office is triable by the Sessions Court. I am unable to understand on what basis, the learned Chief Judicial Magistrate has observed that there is no provision for the filing of the petition to commit the case to the Sessions court. Therefore, the observation of the learned Chief Judicial Magistrate cannot be supported. However, I find the dismissal of the petition is perfectly correct, because there is no evidence for the offence u/s 395 Indian Penal Code against the accused. No doubt, there are allegations in the complaint for the atrocities committed on the inhabitants of the village and also the violence used against them by the police force. As this being a private complaint, the petitioner/complaint is entitled to have the relief only as regards the injury done to him. He cannot, seek remedy for the injuries done to some others even if they happen to be his neighbours. So far as he is concerned, the allegation in the complaint is that in his presence his house was damaged, that the seed grains worth Rs. 2000/- were thrown out and the jewels kept in a box were also taken away by them in a police van. These allegations would constitute the offence for the mischief, theft etc., for which, certainly, the learned Chief Judicial Magistrate is entitled to hold enquiry. But there is no allegation in the complaint or in his evidence that the accused persons caused any hurt or wrongful restraint or attempted to cause death, hurt wrongful restraint or fear of instant death. There must be positive attempt on the part of the accused persons for such fear. As this is lacking in the complaint and evidence. I find that there cannot be an offence u/s 395 Indian Penal Code.

The learned counsel for the respondents submits the even if it is taken that the allegation in the complaint would constitute the offence u/s 395 Indian Penal Code, as the learned Chief Judicial Magistrate did not commit this case to Sessions Court, it is deemed that he has discharged the accused so far as the offence u/s 395 is concerned and now the complainant cannot ask for committing this case to the Court of Sessions. In the complaint, it is simply alleged that when the accused were damaging his house, he was standing in the crowd afraid of his life. Even though he would say that he was afraid of his life, the complaint does not read that the accused threatened to cause death. Therefore, if he himself had developed a fear against the accused, it would not attract the offence u/s 395 Indian Penal Code and therefore the learned Chief Judicial Magistrate also did not commit the case to the Sessions court. As mentioned above, though the reasoning given by the learned Chief Judicial Magistrate is not correct, the order of dismissal of the petition to commit the case to Session Court, is correct., Therefore, the revision is dismissed.