STATE Vs. RANGASAMY

JUDGEMENT

(1.) Crl. R. C. No. 424/94 is directed against the order in Crl. M.P. No. 301/94 in P.R.C. No. 5/94 on the file of the Judicial Magistrate, Kangeyam. Crl. R.C. No. 425/94 is directed against the order in Crl. M.P. No. 330/94 in P.R.C. No. 5/94 on the file of the Judicial Magistrate, Kangeyam. Both the above referred to Crl. M.P.s were disposed of by the learned Judicial Magistrate, Kangeyam by a common order dated 25-4-1994. Crl. M.P. No. 301/94 came to be filed by the first accused in P.R.C. No. 5/94 and Crl. M.P. No. 330/94 came to be filed by accused 2 to 7 in the very same P.R.C. No. 5/94. Since both the Crl. M.P.s were disposed of by a common order and though there are two Crl. Revisions before this Court, yet in view of the fact that a common issue was raised by the accused before the learned Judicial Magistrate which found favour with them, and since the same common issue is also involved in these two revision petitions, I am inclined to dispose of both these revisions by a common order. I heard Mr. R. Karthikeyan, learned Government Advocate on the Criminal Side in both these revisions as well as Mr. A. Padmanabhan, learned counsel for the respondents in these two revisions. I have also perused the order challenged in these revisions as well as perused the complaint filed before the Judicial Magistrate, Kangeyam. I am carefully refraining myself from saying anything on the merits of the complaint filed before the Judicial Magistrate, Kangeyam or enter into any area in which incidentally it may become necessary for me to say something about the complaint, as the same is likely to affect the complainant and the accused when the case is taken up for trial. However, by inadvertence, if anything is said in this order on the merits of the complaint, even then the learned Magistrate, without in any way being influenced by such observations, if any, may proceed with the case in accordance with law. In this common order, the parties to the two revisions are referred to in the same rank in which they are described in P.R.C. No. 5/94 on the file of the Judicial Magistrate, Kangeyam. It is reported by Mr. R. Karthikeyan, learned Government Advocate on the Criminal Side that one of the accused is reported to be dead. It is a matter for the verification by the Judicial Magistrate.

(2.) The accused are all police personnel of different categories. A case of custodial death of a person by name Sivagurunathan was the subject-matter of an enquiry under Section 145 of the Police Standing Orders by the Sub-Collector and Executive First Class Magistrate, Dharapuram. After completing the enquiry, he filed a complaint before the Judicial Magistrate, Kangeyam alleging offences under Sections 342, 302 read with 34, 193, 196 and 201, I.P.C. and Section 8 of Tamil Nadu Prohibition Act, 1937 as amended Act 2 of 1989. Immediately after the complaint was filed, it seems that the first accused filed Crl. M.P. No. 301/94 and accused 2 to 7 filed Crl. M.P. No. 330/94 for a direction that all the witnesses mentioned in the complaint shall be examined before ever the learned Magistrate could take further proceedings towards committal. This request made by the accused in the two petitions above referred to were heard by the learned Magistrate after notice to the Public Prosecutor and ultimately by the judgment challenged in this revision, allowed both these applications. The correctness of the order referred to above is challenged in these two revisions.

(3.) An authenticated copy of the complaint filed by the Sub-Collector and the Executive I Class Magistrate, Dharapuram is produced before me. The respondents in these two revisions are arrayed as accused in that case which was filed for offences already referred to above. It is a lengthy complaint running to 14 pages. At the end of the complaint, there are a number of sheets attached to it and it discloses that as many as 39 witnesses have been cited as witnesses to be examined; and as many as 53 documents were disclosed as documents, copies of which had to be furnished to the accused under Section 208 of the Code of Criminal Procedure. As submitted by the learned Government Advocate on the criminal side, this is a private complaint lodged by the Executive Magistrate under Section 190(1) of the Code of Criminal Procedure and therefore, the procedure contemplated under Chapter XXV of the Code of Criminal Procedure containing Sections 200 to 203 have to be followed. The learned Government Advocate also submitted that though normally in a private complaint examination of the complainant on oath and his witnesses present, if any, is called for under Section 200 of the Code of Criminal Procedure, yet clause (a) to the proviso to Section 200 dispenses with such a requirement, if a public servant acting or purporting to act in the discharge of his official duties or a Court had made the complaint. According to the learned Government Advocate, in view of the statutory exception provided in clause (a) to the proviso to Section 200 of the Code of Criminal Procedure to the normal procedure to be adopted by a Magistrate taking a private complaint on file, the accused were not legally right in requesting the Magistrate for a direction to examine all the witnesses cited in that complaint. On the contrary, Mr. A. Padmanabhan, learned counsel appearing for the respondents contended that whenever the complaint before the Court was at the instance of a private party, irrespective of the fact whether it was lodged by an individual or a public servant or a Court as the case may be, the examination of the complainant and the witnesses cannot be dispensed with.