Smt.Sundari vs Smt.Sushila on 17 April, 2012
Citation 2012(2) LW 107(Crl)
Court Madras High Court
Case Type Criminal Revision Case
Petitioner Smt.Sundari
Respondent Smt.Sushila
Bench Honourable Mr. Justice S.Nagamuthu
Referred Sections 307, 350,352, 357, 381,383, 405, 425, 427, 441, 442,447,448, 443, 444, 445, 503, 504, 506,502, of IPC
FACTS OF THE CASE
The facts of the case [C.C.No.10344 of 2001] as follows:-
The de facto complainant [P.W.1] in this case is one Mrs.K.Sushila. The property bearing D.No.19, Rajamangalam Main Road, Villivakkam, Chennai, was brought for sale in E.P.No.2389 of 1994 in O.S.No.263 of 1991 on the file of the IX Assistant Judge, City Civil Court, Chennai. The de facto complainant was the successful bidder in the court auction. The sale was confirmed in her favour on 19.02.1998. Thereafter, in the proceedings in E.P.No.461 of 2002 the learned IX Assistant Judge ordered delivery of vacant possession of the property to P.W.1. Accordingly, through court, the possession was delivered to the petitioner by the Court Amin on 10.09.2001. On taking possession, P.W.1 locked the building except two rooms which were occupied by two persons by name R.Vijayakumar and Mrs.Pushpavalli Jayakumar.
According to the prosecution, during the night on 10.09.2001, the petitioners 1 to 3 with the help of the 4th petitioner broke open the lock and took possession of the said property. At that time, the de facto complainant was not present. She came to know about the occurrence only on 13.09.2001. When she questioned A1 to A3, on 14.09.2001, they allegedly threatened her of dire consequences if she dared to question. Then she made a complaint to the Sub Inspector of Police, Rajamangalam Police Station on 14.09.2001 in respect of the said occurrences which took place on 10.09.2001 as well as on 14.09.2001. Based on the same, a case was registered in Crime 1513 of 2001 under Sections under Sections 170, 120-B, 307, 350, 357, 383, 405, 425, 427, 441, 442, 443, 444, 445, 503, 504, & 502 of IPC 170, 120B, , & 502 of IPC against the petitioners [A1 to A4]. During the course of investigation, the case was altered into one under Sections 427, 447, 448 and 506 (ii) of IPC. On completing the investigation, the investigating officer filed a final report before the learned X Metropolitan Magistrate, Egmore, Chennai on 22.11.2001 against all the petitioners herein for offences under sections 448 and 427 of IPC alone. The learned Metropolitan Magistrate, in turn, took cognizance of the same in C.C.No.10344 of 2001 [hereinafter referred to as the police report case].
On 07.12.2001, the de facto complainant [P.W.1], Mrs.Sushila filed a private complaint before the very same Metropolitan Magistrate. In the complaint, the de facto complainant narrated about the occurrence on 10.09.2001 as well as on 14.09.2001. The learned Metropolitan Magistrate took cognizance of the same, recorded the statements of the complainant and two other witnesses on 07.01.2002. Taking cognizance in C.C.No.296 of 2002 [hereinafter referred to as the private complaint case] for offence under Sections 120-B, 352 and 381 of IPC, the learned Metropolitan Magistrate issued summons to the accused. A1 to A3 in C.C.No.10344 of 2001 are the accused in this private complaint and, accordingly, they appeared before the Court.
In the police report case in C.C.No.10344 of 2001, on 24.10.2002, the learned Metropolitan Magistrate framed charges under sections 448 and 427 of IPC against the petitioners 1 to 3 and under Section 448 r/w 109 and 427 r/w 109 of IPC against the 4th petitioner. The petitioners denied the charges.
Thus, as stated supra, there were two cases one in C.C.No.10344 of 2001 against the petitioners 1 to 4 herein for offences under Sections 448 & 427, 448 r/w 109 and 427 r/w 109 of IPC and the other case is by way of private complaint in C.C.No.296 of 2002 against A1 to A3 for offences under Sections 120-B, 352 and 381 of IPC. In other words, A1 to A3 are common in both cases and A4 in the police report case is not an accused in the private complaint case. From the records, it could be seen that both the cases were posted throughout on the same dates of hearing.
In the police report case, in order to prove the charges, the prosecution examined as many as five witnesses as P.Ws.1 to 5. P.W.1 is the de facto complainant, who has spoken to about the possession of the property in question taken by her and to the fact that it was broke-open by these accused on 10.09.2001. She has also stated that on 14.09.2001, at 08.00 a.m. When she went to the property, she was intimidated by these accused.P.W.2 has spoken to about the fact that the possession was delivered by the Court Amin to P.W.1 to which he was a witness. P.W.2 has further stated that on 14.09.2001, he found the accused 1 to 3 in possession of the property in question. P.W.3 has also spoken to the fact that on 10.09.2001, he found all these accused breaking open the house and taking possession. It was he who informed P.W.1 about the occurrence. P.W.4 has turned hostile and he has not supported the prosecution in any manner.P.W.5 is the Sub Inspector of Police who registered the case, investigated the same and filed the final report. On the side of the prosecution as many as 24 documents were marked as Exs.P.1 to P.24. When the above incriminating materials were put to the accused under Section 313 of CrPC. they denied the same as false.
In C.C.No.296 of 2002 [private complaint case] on the side of the prosecution, the de facto complainant was examined as P.W.1 and as many as 26 documents were marked. The chief examination commenced on 10.03.2005 and the same was completed on 22.03.2005. For the purpose of cross examination, as revealed from the file, the case was adjourned to 26.04.2005. On that date practically there was no cross examination. Instead, the learned Metropolitan Magistrate recorded that the cross examination conducted in the police report case [C.C.NO.10344 of 2001], where P.W.1 was examined, was treated as cross examination in C.C.No.296 of 2002 also. Thereafter, the learned Metropolitan Magistrate has simply typed out in the deposition of P.W.1, the cross examination recorded in the police report case. After so typing out the cross examination, the learned Metropolitan Magistrate in the deposition of P.W.1 again recorded something as cross examination which indicates that P.W.1 was further cross examined. No other witness was thereafter examined in the private complaint case. Thereafter, on 29.03.2006, the learned Metropolitan Magistrate framed a single charge against all the three accused under Section 352 of IPC. On the same day [29.03.2006], the learned Metropolitan Magistrate examined the accused in the private complaint case under Section 313 of CrPC.
On the same day, the learned Metropolitan Magistrate further ordered as follows:-
Case is to be tried together with C.C.No.10344 of 2001 as already ordered under Section 210(2) of CrPC. on 28.02.2006. Arguments heard. Written Arguments filed by the complainant. Judgement by 04.04.2006.
Thereafter, on 04.04.2006, judgement was not pronounced and it was adjourned to 12.04.2006. On 12.04.2006, the learned Metropolitan Magistrate delivered a common judgement in respect of C.C.No.10344 of 2001 and C.C.No.296 of 2002. In C.C.No.10344 of 2001 [police report case], the learned Metropolitan Magistrate convicted all the four accused viz., A1 to A4 in the police report case and sentenced them under various penal provision of IPC.
So far as the case in C.C.No.296 of 2002 [private complaint case] is concerned, the learned Metropolitan Magistrate convicted A2 [Mrs.Sundari] alone under section 352 of IPC and sentenced her to pay a fine of Rs.250/- in default to undergo simple imprisonment for 15 days. Insofar as A1 and A3 are concerned, they were acquitted.
Challenging the said conviction and sentence imposed in police report case, A1 to A4 preferred an appeal in C.A.No.123 of 2006 on the file of the learned Additional District and Sessions Judge [Fast Track Court No.IV], Chennai. Similarly, A2 in the private complaint case, preferred an appeal in C.A.No.124 of 2006 on the file of the learned Additional District and Sessions Judge [Fast Track Court No.IV], Chennai.
The appellate court, however, did not deliver a common judgement. The appellate court dismissed both the appeals in Crl.A.Nos.123 and 124 of 2006 by separate judgements dated 10.03.2011 thereby confirming the conviction and sentence imposed on the accused.
Before the learned Additional Sessions Judge, Fast Track Court No.IV, Chennai, the de facto complainant Mrs.Sushila [P.W.1] filed a revision in Crl.R.C.No.134 of 2006 seeking to enhance the sentence imposed on A1 to A4 in C.C.No.10344 of 2001 [police report case] and for a direction to redeliver the vacant possession of the property bearing New No.48 (old No.19), Rajamangalam Main Road, Villivakkam, Chennai. The learned Additional Sessions Judge, by order dated 10.03.2011 dismissed the said revision also. As against the same, the de facto complaint Mrs.Sushila [P.W.1] has come up with Crl.O.P.No.17428 of 2011.
Since Crl.R.C.Nos.604 and 608 of 2011 as well as Crl.O.P.No.17428 of 2011 arise out of the common judgement delivered by the learned Metropolitan Magistrate, Egmore, Chennai in C.C.Nos.10344 of 2001 and 296 of 2002 and the court dispose all the proceedings by means of this common Judgment.
ISSUE OF THE CASE
Whether the Criminal Revision Petitions are allowed and the petitioners have committed the crime or not?
ARGUMENTS
The de facto complainant preferred the complaint to the police in respect of both occurrences which allegedly took place on 10.09.2001 and 14.09.2001 [vide FIR in Crime No.1513 of 2001]. On completing the investigation, the Sub Inspector of Police [P.W.5] laid charge sheet on 27.11.2001 against A1 to A4 for offences under Sections 448 & 427 of IPC alone. The learned Magistrate framed charges against A1 to A4 on 24.10.2002 under Sections 448 and 427 against A1 to A3 and under Sections 448 and 427 r/w 109 of IPC against A4. The charges relate only to the occurrence dated 10.09.2001. There is no reference to the alleged occurrence which had taken place on 14.09.2001.
The de facto complainant Mrs.Sushila preferred the private complaint on 07.12.2001 against A1 to A3. [Mr.T.Saraiah the 4th Accused in C.C.No.10344 of 2001 was not arrayed as accused in this case]. Here again, the allegations relate to both the alleged occurrences on 10.09.2001 and 14.09.2001. In the complaint, the de facto complainant had alleged that the offences punishable under Section 107, 124-B (sic), 307, 350, 383, 504, 425, 427, 441, 442, 443, 445, 503 and 506(ii) of IPC were committed. [Many of these provisions are not penal provisions]. The said private complaint was taken up for hearing by the learned Magistrate on 20.11.2001. On that date the learned Metropolitan Magistrate recorded that already there was a case in C.C.No.10344 of 2001 in respect of the same occurrence upon which cognizance had been taken on 27.11.2001? Thereafter, he adjourned the private complaint. On 04.01.2002, the learned Magistrate recorded the statement of the de facto complainant and two other witnesses under Sections 200 and 201 of CrPC. respectively. Having considered the above the learned Metropolitan Magistrate took cognizance on the said complaint on 07.01.2002 under Sections 120-B, 352 and 381 of IPC. The order of the learned Magistrate taking cognizance reads as follows:-
“Perused records, Sworn Statement of Witnesses. There is prima facie case to take the case on file. Already police filed charge sheet and case was taken on file u/s.448 & 427 of IPC only. Take the case on file u/s.120-B, 352, 381 IPC. Issue summons to Accused 1 to 3 by 07.02.2002”.
The learned Metropolitan Magistrate could take cognizance of offence under Section 381 of IPC. Section 381 of IPC is an offence of theft committed by a clerk or servant in possession of the property of the master or employer. Here in this case the accused were neither clerks nor servants of any master or employer. Thus, the cognizance of offence under Section 381 of IPC is baseless and the same is illegal.
Of course, since offence under Section 381 of IPC is triable as a warrant case, the learned Metropolitan Magistrate proceeded to try the private complaint as per the procedure provided in Chapter XIX-B [cases instituted otherwise than on police report]. During trial, P.W.1 [complainant] was examined on 10.03.2005 and again on22.03.2005. She was not cross examined on the same day. On 26.04.2005, the learned counsel for the accused requested the Magistrate to treat the cross examination of the said witness in C.C.No.10344 of 2001 as cross examination in this case also. Accepting the said plea, the learned Metropolitan Magistrate simply typed out the cross examination recorded in C.C.No.10344 of 2001 in the deposition of P.W.1 in C.C.No.296 of 2002 as cross examination. After reproducing the same, the learned Metropolitan Magistrate allowed the learned counsel for the accused to cross examine the witness further. Accordingly, further cross examination was done and it was completed on 26.04.2005. This procedure adopted by the learned Metropolitan Magistrate is again illegal. In law, the evidence recorded in one case cannot be simply adopted [typed out] as evidence in the other case. It is unfortunate that the learned Metropolitan Magistrate did not adhere to even this rudimentary law.
Subsequently, in the private complaint case, the learned Metropolitan Magistrate framed charge only for offence under Section 352 of IPC against A1 to A3. He did not find grounds to frame charge for offence under Section 120-B and 381 of IPC for which cognizance had earlier been taken.
The irregularity here is that the offence under Section 352 of IPC is not triable as a warrant case. The maximum punishment itself is only imprisonment for three months. It is beyond one’s comprehension as to how the learned Metropolitan Magistrate thought it fit to frame a charge under Section 352 of IPC alone which is triable as a summons case.
Power of court to convert summons-cases into warrant cases – When in the course of the trial of a summon-case relating to an offence punishable with imprisonment for a term exceeding six months, it appears to the Magistrate that in the interests of justice, the offence should be tried in accordance with the procedure for the trial of warrant-cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant-cases and may recall any witness who may have been examined.
In order to invoke Section 259 of CrPC., it is essential that the maximum punishment of imprisonment imposable should exceed six months. In the instant case, since the maximum punishment imprisonment imposable is only three months, Section 259 of CrPC. is not applicable.
Proceeding further, if once such an order is made under Section 210 CrPC. then, it is obvious that the complainant in the private case has no independent role to play. The burden of prosecuting the said case lies only on the Assistant Public Prosecutor, who is in charge of the police report case. But, in the instant case, the learned Magistrate allowed the case to be conducted by P.W.1 as though it still remains to be a private complaint case. This again is contrary to law.
While writing the judgement the learned Magistrate has considered the evidence recorded in the police report case as evidence, in the private complaint case and vice versa. Admittedly, in the private complaint case, only one witness was examined. But, the learned Magistrate has discussed elaborately about all the five witnesses examined in the police report case, in the private complaint case to find A2 guilty. Similarly, the documents exhibited in one case were all extensively discussed in the other case. Thus, it is deplorable that the learned Metropolitan Magistrate had made a complete mess.
Now coming to the judgements of the appellate court, the learned Additional Sessions Judge, on his part, was equally indifferent. First of all, when there is an order of the learned Magistrate treating the private complaint case as a police report case under Section 210 of CrPC. in the appeal in Crl.A.No.124 of 2006 arising out of C.C.No.296 of 2002, the State should have been the respondent. But, in the said appeal, the State was not a respondent and, therefore, the learned Additional Sessions Judge did not hear the State at all. Instead, the complainant Mrs.Sushila, who was the respondent, was heard. The learned Additional Sessions Judge dealt with both the appeals separately. But at the same time, the learned Additional Sessions Judge has also committed a very serious illegality inasmuch as while dealing with the appeal in respect of private complaint case., the learned Additional Sessions Judge has again dealt with the evidence recorded in the police report case to come to the conclusion that A2 in the private complaint is guilty of an offence under Section 352 of IPC. Similarly, in Crl.A.No.123 of 2006, he has dealt with the evidence recorded in the private complaint case.
Now coming to the police report case in C.C.No.10344 of 2001 too, I find illegalities committed by the Courts below by using the evidence recorded in private complaint case also in this case. In this case also, on the very same grounds, the conviction of the petitioners/A1 to A4 is liable to be set aside and the matter may require to be remanded back to the learned Metropolitan Magistrate for passing a fresh judgement by exclusively considering the evidences, both oral and documentary, recorded in the police report case. But, I do not propose to do the same also at this length of time. If this matter is remanded to the learned Magistrate, it will amount to another round of litigation impeding the right of speedy trial guaranteed under Article 21 of the Constitution of India. Therefore, I restrain myself from remanding the case back to the learned Metropolitan Magistrate as I have proposed to appreciate the evidence recorded in the police report case independently.
Now coming to Crl.O.P.No.17428 of 2011, since this court acquits all the accused in the police report case, question of enhancement of sentence does not arise. Regarding delivery of possession also this court cannot pass any positive direction inasmuch as the accused have filed an affidavit before this court wherein the accused in paragraphs 3 and 4 have stated as follows:-
3. We further submit that in the above circumstances, we jointly and severally confirm that we are not in possession as on date in the property which was delivered by Amin on two various dates to de facto complainant.
4. We further submit that we also undertake that we will not interfere or will make any encumbrance over the property in future. We further inform that entire building is attached property (sic) was demolished by de facto complainant and we petitioners 1 to 3 are living in Government Poramboke Land situated adjacent to the court attached property.”
JUDGMENT
The learned Metropolitan Magistrate, who conducted the trial in both the cases in C.C.No.10344 of 2001 and C.C.No.296 of 2002 and the learned Additional Sessions Judge have conducted themselves in a cavalier manner without showing due diligence and by ignoring the fact that they have to uphold the rule of law by following the procedure established by law. In normal course, for this court, to go through the records and to deliver judgement, it would have taken only a few hours. But, unfortunately, because of a number of irregularities and illegalities committed by the courts below, this court had to spend a number of days repeatedly referring to the records which have not even been arranged in order. I am hopeful that this court will not come across any such lapse in the days to come.
In the result, both the Criminal Revision Petitions are allowed and the petitioners/Accused are acquitted of all charges. Criminal Original Petition No.17428 of 2001 is dismissed accordingly. Bail bonds, if any executed by the petitioners/accused shall stand cancelled. Fine amount, if any, paid by the petitioners/accused shall be refunded to them.
written by Simrah khan, University of Kashmir, Intern under Legal Vidhiya.
