V. Singaravelan vs The State and Others

Honourable Mr. Justice P.R. Shivakumar

The de-facto complainant in Crime No. 887 of 2008, which was registered on the file of the Kottai Police Station, Tiruchirappalli is the present revision petitioner. He had preferred a private complaint before the learned Judicial Magistrate No. I, Tiruchirappalli on 11.08.2008 alleging that his paternal aunt Mariammal was murdered by the respondents 2 to 5 herein on 21.12.2002. The learned Judicial Magistrate No. I, Tiruchirappalli, perhaps considering the position that investigation could not be ordered if Private Complaint Procedure would be adopted, rightly chose to refer the said complaint u/s 156(3) Cr.P.C to the police for investigation. Accordingly, a case was registered on the file of Kottai Police Station, Tiruchirappalli District, in Crime No. 887 of 2008 on 29.09.2008 for the alleged offences punishable under Sections 302 r/w Section 34 and 203 IPC. The Inspector of Police of the said Police Station, after completing the investigation, came to the conclusion that there was no material to show the death of Mariammal to be homicidal. The Investigating Officer had also found that the death was natural and the same was sought to be projected as a homicidal death. Accordingly, the Inspector of Police, Kottai Police Station submitted a final report for dropping the case as "mistake of fact". The revision petitioner, being the de-facto complainant, was given notice of such negative final report and on receipt of such notice, he chose to file once again a private complaint in the form of a protest petition. The learned Judicial Magistrate No. I, Tiruchirappalli took it on file as Crl.M.P. No. 4646 of 2009 following the Private Complaint Procedure contemplated u/s 200 Cr.P.C., and postponed the issue of process till the inquiry would be conducted u/s 202 Cr.P.C. Accordingly, the petitioner herein(de-facto complainant) and the witnesses produced by the de-facto complainant were examined on oath and their sworn statements were recorded by the learned Judicial Magistrate No. I, Tiruchirappalli.

Since investigation of the very same case preceded the cognizance of the private complaint, the learned Judicial Magistrate No. I, Tiruchirappalli was constrained to take into consideration not only the statements of the de-facto complainant and the witnesses produced by the de-facto complainant on oath and the documents produced by them, but also the statements recorded by the Investigating Officer and the documents collected by the Investigating Officer during the investigation referred to above.

The learned Judicial Magistrate No. I, Tiruchirappalli, considered the above said materials to take a decision u/s 203 Cr.P.C as to whether there was sufficient ground for proceeding against the respondents 2 to 5 herein, for any offence. Upon such consideration, the learned Judicial Magistrate No. I, Tiruchirappalli formed an opinion that there was no sufficient ground for proceeding and consequently, dismissed the complaint u/s 303 Cr.P.C., by the impugned order stating the reasons for doing so. Aggrieved by and challenging the said order of dismissal dated 30.09.2010, made by the learned Judicial Magistrate No. I,Tiruchirappalli in Crl.M.P. No. 4646 of 2009, the petitioner in the revision case(de-facto complainant) has come forward with the present revision u/s 397 r/w Section 401 Cr.P.C.

The arguments advanced by Mr.Ajmal Khan, learned counsel for the petitioner were heard. The grounds of revision and the documents produced in the form of typed-set of papers, which include copies of the First Information Report, order directing investigation u/s 156(3) Cr.P.C., Protest petition and the impugned order dated 30.09.2010, were also perused.

It is the contention of the learned counsel for the petitioner that the learned Judicial Magistrate No. I, Tiruchirappalli, whose order is sought to be challenged in the revision, without considering the scope of consideration to be made u/s 203 Cr.P.C transgressed the limits by embarking upon a roving consideration on the merits of the case, which resulted in an erroneous order of dismissal of the complaint. The learned counsel for the petitioner also raised an additional contention that the learned Judicial Magistrate No. I, Tiruchirappalli failed to consider the medical evidence collected by the Investigating Officer during investigation, which ought to have been considered and the failure to do so will make the order unsustainable.

This Court paid its anxious considerations to the above said submissions made by the learned counsel for the revision petitioner in the revision case and also perused the relevant records indicated supra.

Upon such consideration, this Court comes to the conclusion that there is no merit in the revision case and the same deserves dismissal in limini at the stage of admission itself, for the reasons appearing hereunder:

The Magistrate dealing with a Private Complaint cannot be expected to act mechanically by issuing process to the persons shown as an accused in the private complaint and committing the said persons for trial to the court of session simply because the complainant has chosen to allege the commission of an offence exclusively triable by a court of session, without considering the existence of prima facie materials to proceed against the persons shown as accused. The arrangement of Sections 200 to 204 will make it abundantly clear that even in cases, wherein, an offence exclusively triable by a court of session happen to be one of the offences alleged, the learned Judicial Magistrate has to conduct an inquiry u/s 202 Cr.P.C and consider the statements of the complainant and the witnesses produced by the complainant to arrive at a decision as to whether there is sufficient ground for proceeding with the case. Only in case, the Magistrate is of the opinion that there is sufficient ground for proceeding, the question of issuing process will arise. On the other hand, if the opinion of the Magistrate happens to be that there is no sufficient ground for proceeding, then the Magistrate has to dismiss the complaint stating briefly the reason for so doing. If at all, no such power of the Magistrate is recognized, then even in petty matters, the complainant may cite a penal provision making an act of an offence exclusively triable by a court of session without any basis and thereby cause the matter to be committed to the sessions Court unnecessarily making the persons cited as the accused to face the trial.

of course, there is also a power conferred on the Magistrate in Private Complaint cases for dismissal of the complaint at a later point of time, namely, Section 256 Cr.P.C. But the same appears in Chapter-XX dealing with the trial of summons cases by the Magistrate, which shows that such a power is available only when the Magistrate tries the offence. On the other hand, no such power is made available to the Magistrate after issuing process in respect of an offence exclusively triable by a court of session. When processes are issued in respect of an offence exclusively triable by a court of session, then the Judicial Magistrate has to proceed with the committal proceedings after complying with the provisions found in Section 207 Cr.P.C. of course, even in such cases, the court to which the case has been committed has got a power to discharge u/s 227 Cr.P.C. The requirement of considering the existence of sufficient ground for proceeding before taking a decision as to whether process could be issued or not is aimed at preventing unnecessary prosecution without there being sufficient ground for proceeding with the prosecution of the persons shown to be accused in the private complaint, even if the said complaint refers to an offence exclusively triable by a court of session.

In this case, the petitioner herein/de-facto complaint has alleged commission of offences punishable under Sections 302 IPC and Section 203

IPC. The story propounded by the revision petitioner is that his paternal aunt Mariammal had executed a "will" on 08.04.2002, bequeathing her properties in favour of the revision petitioner and three other persons, namely respondents 2,3 and 4 herein; that after execution of the said "will", the deceased Mariammal met with an accident in December 2002 and was admitted in the hospital; that while she was taking treatment in the hospital she informed one Kanagavalli, who is said to be the foster daughter of Mariammal, that she would like to alter the "will" and for the said purpose, Kanagavalli would bring her Auditor and Advocate; that on coming to know the said development, not willing to give up the benefit conferred upon them under the "will", the respondents 2 to 5 herein voluntarily caused death of the said Mariammal by administering overdose of seditious medicine which had nothing to do with her illness and suppressed the homicidal death by disposing of the dead body by cremation.

According to the petitioner/de-facto complainant, the alleged occurrence took place on 21.12.2002 and the cremation was held on 22.12.2002, but, however he got an information that the respondents 2 to 4 created a record, as if cremation was held on 21.12.2002 itself.

According to the petitioner, the same gave rise to a suspicion and on enquiry made with the neighbours, the evil act on the part of the respondents 2 to 5 came to his knowledge, pursuant to which he chose to prefer a complaint on 11.08.2008. Though the said complaint was referred to the police for registration of a case and for investigation and in fact a case was registered and investigation was done, the result of the investigation was the submission of a negative report praying for the closure of the case as "mistake of fact". Only thereafter, the protest petition which was taken on file as a private complaint by the learned Judicial Magistrate No. I, Tiruchirappalli came to be filed.

The learned Judicial Magistrate has followed private complaint procedure by taking the complaint on file and conducting an inquiry u/s 202 Cr.P.C., after postponing the decision as to the question of issue of process. The statements of the de-facto complainant and the witnesses produced by the de-facto complainant were considered by the learned Judicial Magistrate u/s 203 Cr.P.C. to make a decision as to whether there is sufficient ground for proceeding against anyone of the respondents 2 to 5. The private complaint, having been filed in the form of a protest petition after the submission of a negative report by the Investigating Officer, the learned Judicial Magistrate has rightly considered also the materials collected by the Investigating Officer during investigation.

Upon such consideration, the learned Judicial Magistrate No. I, Tiruchirappalli formed an opinion that there was no material to show that the death was either homicidal or any offence was committed relating to the death of Mariyammal. As mandated u/s 203 Cr.P.C, the learned Judicial Magistrate has also briefly stated the reasons for arriving at such a conclusion that there was no sufficient ground for proceeding against the respondents 2 to 5. The learned Judicial Magistrate No. I, Tiruchirappalli has referred to the fact that the petitioner/de-facto complainant chose to prefer a complaint expressing suspicion over the death of Mariyammal and alleging homicidal death only after a lapse of six years. The learned Judicial Magistrate also referred to the failure on the part of the de-facto complainant to examine the person, who is alleged to have furnished the information to the de-facto complainant.

The learned Judicial Magistrate has also observed that the statement of the de-facto complainant regarding the alleged occurrence being a statement based on information furnished by others would not be a direct evidence and shall be hit by the rule against hearsay evidence. In addition, the learned Judicial Magistrate has also referred to the fact of the de-facto complainant receiving a sum of Rs. 1 lakh from the other legatees of the "will" of Mariyammal towards his 20% share. The learned Judicial Magistrate has also adverted to the materials collected during investigation by the Investigating Officer to arrive at a conclusion that there is absence of prima facie materials to show that the death of Mariyammal was either homicidal or suspicious. Narrating briefly the said reasons, the learned Judicial Magistrate has rightly chosen to dismiss the complaint u/s 203 Cr.P.C. This Court does not find any defect or infirmity in the said order warranting interference by this Court in exercise of its revisional power. There is no merit in the revision and the revision deserves rejection at the threshold i.e., at the admission stage itself. Accordingly, the Criminal Revision Case is dismissed.