Smt.Sundari v. Smt.Sushila

1.M.Kannan2.Smt.Sundari3.K.Senthil4.T.Saraiah .... Petitioners in Crl.R.C.No.608 of 2011/Accused 1 to 4-Versus-State Rep. ByThe Inspector of Police,V-4, Rajamangalam Police Station,Chennai 600049.[Crime No.1513 of 2001] ... Respondent in Crl.R.C.No.608 of 2011/ ComplainantMemorandum of Grounds of Criminal Revision filed underSections 397 r/w 401 of the Code of Criminal Procedure praying tocall for the entire records relating to C.A.No.123 of 2006 on thefile of the learned Additional District and Sessions Judge, FastTrack Court No.IV, Chennai, and set aside the judgement dated10.03.2011 passed therein by the learned Additional District andSessions Judge, Fast Track Court No.IV, Chennai, confirming thejudgement dated 12.04.2006 made in C.C.No.10344 of 2001 passed bythe learned X Metropolitan Magistrate, Egmore, Chennai. K.Sushila ... Petitioners in Crl.O.P.No.17428 of 2011/ Defacto complainant-Versus-1.M.Kannan2.Smt.Sundari3.K.Senthil4.T.Saraiah5.The State rep. By The Inspector of Police, V-4, Rajamangalam Police Station, Kolathur, Chennai 600099. ... Respondents in Crl.O.P.No.17428 of 2011/AccusedThis Original Petition filed under Section 482 of the Codeof Criminal Procedure, praying to call for the records pertainingto Crl.R.C.No.134 of 2006 on the file of the learned AdditionalDistrict and Sessions Judge, [Fast Track Court No.IV], Chennai andset aside the order dated 10.03.2011 passed thereon by the learnedAdditional District and Sessions Judge, [Fast Track Court No.IV],Chennai, dismissing the revision thereby refusing to enhance thesentence imposed on all the Accused in C.C.No.10344 of 2001 andenhance the sentence imposed on all the accused to that of the oneprescribed under law and to direct the 5th respondent to restorethe vacant possession of the property bearing at Door No.48 [Old https://hcservices.ecourts.gov.in/hcservices/ No.19], Rajamangalam Main Road, Villivakkam, Chennai-49, comprisedin Survey No.224/2B and 278/3, total extent of 2,146 sq.ft. To thepetitioner from the accused A-1 to A-3 even by using force.For Petitioner in Crl.R.C.No.604 of 2011 andpetitioners in Crl.R.C.No.No. 608 of 2011 andrespondents 1 to 4 inCrl.O.P.No.17428 of 2011:Mr.P.Ram ManoharFor respondent inCrl.R.C.No.604 of 2011 andpetitioner inCrl.O.P.No.No.17428 of 2011 :Mr.S.N.NarasimhaluFor respondent inCrl.R.C.No.608 of 2011 and5th respondent inCrl.O.P.No.17428 of 2011:Mr.C.Emalias, GovernmentAdvocate [Criminal Side]COMMON ORDERThe petitioners in Crl.R.C.No.608 of 2011 are the Accusedin C.C.No.10344 of 2001 on the file of the X MetropolitanMagistrate, Egmore, Chennai. The trial court, by judgement dated12.04.2006, convicted the petitioners 1 to 3 under Sections 448 &427 of IPC and sentenced them to undergo simple imprisonment forsix months for the offence under Section 448 of IPC; and to pay afine of Rs.1,000/-each in default to undergo simple imprisonmentfor three months for the offence under Section 427 of IPC andconvicted the 4th petitioner under Section 448 r/w 109 and 427 r/w109 of IPC and sentenced him to undergo simple imprisonment for sixmonths for the offence under Section 448 r/w 109 of IPC; and to paya fine of Rs.1,000/- in default to undergo simple imprisonment forthree months for the offence under Section 427 r/w 109 of IPC.Challenging the same, the petitioners filed an appeal inCrl.A.No.123 of 2006. The learned Additional District and SessionsJudge [Fast Track Court No.IV], Chennai, by judgement dated10.03.2011 dismissed the appeal thereby confirming the convictionand sentence imposed by the trial court. As against the same, thepetitioners have come up with this criminal revision petition[Crl.R.C.No.608 of 2011].2. The facts of the case [C.C.No.10344 of 2001] in briefare as follows:- The de facto complainant [P.W.1] in this case isone Mrs.K.Sushila. The property bearing D.No.19, RajamangalamMain Road, Villivakkam, Chennai, was brought for sale inE.P.No.2389 of 1994 in O.S.No.263 of 1991 on the file of the IXAssistant Judge, City Civil Court, Chennai. The de factocomplainant was the successful bidder in the court auction. Thesale was confirmed in her favour on 19.02.1998. Thereafter, in the https://hcservices.ecourts.gov.in/hcservices/ proceedings in E.P.No.461 of 2002 the learned IX Assistant Judgeordered delivery of vacant possession of the property to P.W.1.Accordingly, through court, the possession was delivered to thepetitioner by the Court Amin on 10.09.2001. On taking possession,P.W.1 locked the building except two rooms which were occupied bytwo persons by name R.Vijayakumar and Mrs.Pushpavalli Jayakumar.3. While so, according to the prosecution, during the nighton 10.09.2001, the petitioners 1 to 3 with the help of the 4thpetitioner broke open the lock and took possession of the saidproperty. At that time, the de facto complainant was not present.She came to know about the occurrence only on 13.09.2001. When shequestioned A1 to A3, on 14.09.2001, they allegedly threatened herof dire consequences if she dared to question. Then she made acomplaint to the Sub Inspector of Police, Rajamangalam PoliceStation on 14.09.2001 in respect of the said occurrences which tookplace on 10.09.2001 as well as on 14.09.2001. Based on the same, acase was registered in Crime 1513 of 2001 under Sections 170, 120-B, 307, 350, 357, 383, 405, 425, 427, 441, 442, 443, 444, 445, 503,504, & 502 of IPC against the petitioners [A1 to A4]. During thecourse of investigation, the case was altered into one underSections 427, 447, 448 and 506 (ii) of IPC. On completing theinvestigation, the investigating officer filed a final reportbefore the learned X Metropolitan Magistrate, Egmore, Chennai on22.11.2001 against all the petitioners herein for offences undersections 448 and 427 of IPC alone. The learned MetropolitanMagistrate, in turn, took cognizance of the same in C.C.No.10344 of2001 [hereinafter referred to as “the police report case”].4. While so, on 07.12.2001, the de facto complainant[P.W.1], Mrs.Sushila filed a private complaint before the verysame Metropolitan Magistrate. In the complaint, the de factocomplainant narrated about the occurrence on 10.09.2001 as well ason 14.09.2001. The learned Metropolitan Magistrate took cognizanceof the same, recorded the statements of the complainant and twoother witnesses on 07.01.2002. Taking cognizance in C.C.No.296 of2002 [hereinafter referred to as “the private complaint case”] foroffence under Sections 120-B, 352 and 381 of IPC, the learnedMetropolitan Magistrate issued summons to the accused. A1 to A3 inC.C.No.10344 of 2001 are the accused in this private complaint and,accordingly, they appeared before the Court. 5. In the police report case in C.C.No.10344 of 2001, on24.10.2002, the learned Metropolitan Magistrate framed chargesunder sections 448 and 427 of IPC against the petitioners 1 to 3and under Section 448 r/w 109 and 427 r/w 109 of IPC against the 4thpetitioner. The petitioners denied the charges. 6. Thus, as stated supra, there were two cases one inC.C.No.10344 of 2001 against the petitioners 1 to 4 herein foroffences under Sections 448 & 427, 448 r/w 109 and 427 r/w 109 of https://hcservices.ecourts.gov.in/hcservices/ IPC and the other case is by way of private complaint in C.C.No.296of 2002 against A1 to A3 for offences under Sections 120-B, 352and 381 of IPC. In other words, A1 to A3 are common in both casesand A4 in the police report case is not an accused in the privatecomplaint case. From the records , it could be seen that both thecases were posted throughout on the same dates of hearing. 7. In the police report case, in order to prove thecharges, the prosecution examined as many as five witnesses asP.Ws.1 to 5. P.W.1 is the de facto complainant, who has spoken toabout the possession of the property in question taken by her andto 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 wentto the property , she was intimidated by these accused.P.W.2 hasspoken to about the fact that the possession was delivered by theCourt Amin to P.W.1 to which he was a witness. P.W.2 has furtherstated that on 14.09.2001, he found the accused 1 to 3 inpossession of the property in question. P.W.3 has also spoken tothe fact that on 10.09.2001, he found all these accused breakingopen the house and taking possession. It was he who informed P.W.1about the occurrence. P.W.4 has turned hostile and he has notsupported the prosecution in any manner.P.W.5 is the Sub Inspectorof Police who registered the case, investigated the same and filedthe final report. On the side of the prosecution as many as 24documents were marked as Exs.P.1 to P.24. When the aboveincriminating materials were put to the accused under Section 313of Cr.P.C. they denied the same as false. 8. In C.C.No.296 of 2002 [private complaint case] on theside of the prosecution, the de facto complainant was examined asP.W.1 and as may as 26 documents were marked. The chiefexamination commenced on 10.03.2005 and the same was completed on22.03.2005. For the purpose of cross examination, as revealed fromthe file, the case was adjourned to 26.04.2005. On that datepractically there was no cross examination. Instead, the learnedMetropolitan Magistrate recorded that the cross examinationconducted in the police report case [C.C.NO.10344 of 2001], whereP.W.1 was examined, was treated as cross examination in C.C.No.296of 2002 also. Thereafter, the learned Metropolitan Magistrate hassimply typed out in the deposition of P.W.1, the cross examinationrecorded in the police report case. After so typing out the crossexamination, the learned Metropolitan Magistrate in the depositionof P.W.1 again recorded something as cross examination whichindicates that P.W.1 was further cross examined. No other witnesswas thereafter examined in the private complaint case. Thereafter,on 29.03.2006, the learned Metropolitan Magistrate framed a singlecharge against all the three accused under Section 352 of IPC [anoffence under section 352 of IPC is triable by following theprocedure for trial of summons case]. On the same day[29.03.2006], the learned Metropolitan Magistrate examined theaccused in the private complaint case under Section 313 of Cr.P.C. https://hcservices.ecourts.gov.in/hcservices/

9. On the same day, the learned Metropolitan Magistratefurther ordered as follows:-“Case is to be tried together withC.C.No.10344 of 2001 as already ordered underSection 210(2) of Cr.P.C. on 28.02.2006.Arguments heard. Written Arguments filed by thecomplainant. Judgement by 04.04.2006”. Thereafter, on 04.04.2006, judgement was not pronounced and it wasadjourned to 12.04.2006. On 12.04.2006, the learned MetropolitanMagistrate delivered a “common judgement” in respect ofC.C.No.10344 of 2001 and C.C.No.296 of 2002. In C.C.No.10344 of2001 [police report case], the learned Metropolitan Magistrateconvicted all the four accused viz., A1 to A4 in the police reportcase and sentenced them under various penal provisions of theIndian Penal Code as extracted in the first paragraph of thisorder.10. So far as the case in C.C.No.296 of 2002 [privatecomplaint case] is concerned, the learned Metropolitan Magistrateconvicted A2 [Mrs.Sundari] alone under section 352 of IPC andsentenced her to pay a fine of Rs.250/- in default to undergosimple imprisonment for 15 days. Insofar as A1 and A3 areconcerned , they were acquitted.11. Challenging the said conviction and sentence imposed inpolice report case, A1 to A4 preferred an appeal in C.A.No.123 of2006 on the file of the learned Additional District and SessionsJudge [Fast Track Court No.IV], Chennai. Similarly, A2 in theprivate complaint case, preferred an appeal in C.A.No.124 of 2006on the file of the learned Additional District and Sessions Judge[Fast Track Court No.IV], Chennai. 12. The appellate court, however, did not deliver a commonjudgement. The appellate court dismissed both the appeals inCrl.A.Nos.123 and 124 of 2006 by separate judgements dated10.03.2011 thereby confirming the conviction and sentence imposedon the accused. 13. Before the learned Additional Sessions Judge, FastTrack 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 toenhance the sentence imposed on A1 to A4 in C.C.No.10344 of 2001[police report case] and for a direction to redeliver the vacantpossession of the property bearing New No.48 (old No.19),Rajamangalam Main Road, Villivakkam, Chennai. The learnedAdditional Sessions Judge, by order dated 10.03.2011 dismissed thesaid revision also. As against the same, the de facto complaintMrs.Sushila [P.W.1] has come up with Crl.O.P.No.17428 of 2011. https://hcservices.ecourts.gov.in/hcservices/

14. In C.A.No.124 of 2006, the respondent was thecomplainant Mrs.Sushila. Treating the same as an appeal arising outof a case instituted on a private complaint, the appellate courtheard A2 – Mrs.Sundari and the complainant alone. The appellatecourt did not hear the learned Additional Public Prosecutor as theInspector of Police, Rajamangalam Police Station, was not arespondent in the said appeal. 15. Since Crl.R.C.Nos.604 and 608 of 2011 as well asCrl.O.P.No.17428 of 2011 arise out of the common judgementdelivered by the learned Metropolitan Magistrate, Egmore, Chennaiin C.C.Nos.10344 of 2001 and 296 of 2002 , I have heard the learnedcounsel appearing for the petitioners/Accused learned counselappearing for the de facto complaint/respondent and the learnedGovernment Advocate, and I dispose of all the three proceedings bymeans of this common judgement. 16. The narration of the proceedings before the learnedMetropolitan Magistrate, which I have made elaboratelyhereinbefore, would go a long way to show that all was not wellwith the learned Metropolitan Magistrate, who tried the cases. Asa matter fact, I had to take enormous efforts to go through all theoriginal records of the trial court to gather the above materials.It is really painful that the trial court had not acted diligentlyas expected of in law in conducting the trial and in the disposalof these cases. Number of irregularities and illegalities have beencommitted by learned Metropolitan Magistrate. The appellate court,on its part, also has committed similar irregularities andillegalities. Some of the irregularities committed are curable andthe other irregularities/illegalities are incurable. Now , let mecommence to discuss about the same one after the other.17. Admittedly, the de facto complainant preferred thecomplaint to the police in respect of both occurrences whichallegedly took place on 10.09.2001 and 14.09.2001 [vide FIR inCrime No.1513 of 2001]. On completing the investigation, the SubInspector of Police [P.W.5] laid charge sheet on 27.11.2001against A1 to A4 for offences under Sections 448 & 427 of IPCalone. The learned Magistrate framed charges against A1 to A4 on24.10.2002 under Sections 448 and 427 against A1 to A3 and underSections 448 and 427 r/w 109 of IPC against A4. The charges relateonly to the occurrence dated 10.09.2001. There is no reference tothe alleged occurrence which had taken place on 14.09.2001.18. As I have already narrated, the de facto complainant–Mrs.Sushila preferred the private complaint on 07.12.2001 againstA1 to A3. [Mr.T.Saraiah – The 4th Accused in C.C.No.10344 of 2001was not arrayed as accused in this case]. Here again, theallegations relate to both the alleged occurrences on 10.09.2001and 14.09.2001. In the complaint , the de facto complainant hadalleged that the offences punishable under Section 107, 124-B https://hcservices.ecourts.gov.in/hcservices/ (sic), 307, 350, 383, 504, 425, 427, 441, 442, 443, 445, 503 and506(ii) of IPC were committed. [Many of these provisions are notpenal provisions]. The said private complaint was taken up forhearing by the learned Magistrate on 20.11.2001. On that date thelearned Metropolitan Magistrate recorded that already there was acase in C.C.No.10344 of 2001 in respect of the same occurrence uponwhich cognizance had been taken on 27.11.2001. Thereafter, headjourned the private complaint. On 04.01.2002, the learnedMagistrate recorded the statement of the de facto complainant andtwo other witnesses under Sections 200 and 201 of Cr.P.C.respectively. Having considered the above the learned MetropolitanMagistrate took cognizance on the said complaint on 07.01.2002under Sections 120-B, 352 and 381 of IPC. The order of the learnedMagistrate taking cognizance reads as follows:-"Perused records, Sworn Statement ofWitnesses. There is prima facie case to take thecase on file. Already police filed charge sheetand case was taken on file u/s.448 & 427 of IPConly. Take the case on file u/s.120-B, 352, 381IPC. Issue summons to Accused 1 to 3 by07.02.2002". At this juncture, I am unable to understand as to how, the learnedMetropolitan Magistrate could take cognizance of offence sunderSection 381 of IPC. Section 381 of IPC is an offence of theftcommitted by a clerk or servant in possession of the property ofthe master or employer. Here in this case the accused were neitherclerks nor servants of any master or employer. Thus, the verytaking cognizance of offence under Section 381 of IPC is baselessand the same is illegal.19. Of course, since offence under Section 381 of IPC istriable as a warrant case, the learned Metropolitan Magistrateproceeded to try the private complaint as per the procedureprovided in Chapter XIX-B [cases instituted otherwise than onpolice report]. During trial, P.W.1 [complainant] was examined on10.03.2005 and again on22.03.2005. She was not cross examined onthe same day. On 26.04.2005, the learned counsel for the accusedrequested the Magistrate to treat the cross examination of the saidwitness in C.C.No.10344 of 2001 as cross examination in this casealso. Accepting the said plea, the learned Metropolitan Magistratesimply typed out the cross examination recorded in C.C.No.10344 of2001 in the deposition of P.W.1 in C.C.No.296 of 2002 as crossexamination. After reproducing the same, the learned MetropolitanMagistrate allowed the learned counsel for the accused to crossexamine the witness further. Accordingly, further cross examinationwas done and it was completed on 26.04.2005. This procedureadopted by the learned Metropolitan Magistrate is again illegal. Inlaw, the evidence recorded in one case cannot be simply adopted[typed out] as evidence in the other case. It is unfortunate that https://hcservices.ecourts.gov.in/hcservices/ the learned Metropolitan Magistrate did not adhere to even thisrudimentary law. 20. Subsequently, in the private complaint case, thelearned Metropolitan Magistrate framed charge only for offenceunder Section 352 of IPC against A1 to A3. He did not find groundsto frame charge for offence under Section 120-B and 381 of IPC forwhich cognizance had earlier been taken. 21. The irregularity here is that the offence under Section352 of IPC is not triable as a warrant case. The maximum punishmentitself is only imprisonment for three months. It is beyond one'scomprehension as to how the learned Metropolitan Magistrate thoughtit fit to frame a charge under Section 352 of IPC alone which istriable as a summons case. In this regard, I may refer to Sub-section (1) of Section 246 of Cr.P.C. which reads as follows:- 246. Procedure where accused is notdischarged - (1) If, when such evidence has beentaken, or at any previous stage of the case, theMagistrate is of opinion that there is groundfor presuming that the accused has committed anoffence triable under this Chapter, which suchMagistrate is competent to try and which, in hisopinion, could be adequately punished by him, heshall frame in writing a charge against theaccused."[Emphasis supplied]22. Here, the expression “an offence triable under thisChapter” needs to be underlined. This makes it very clear that ifonly any one of the offences is triable under Chapter XIX-B of theCr.P.C., then it would be appropriate for a Magistrate to framecharges.23. Under Section 259 of the Cr.P.C., of course, it will belawful for a Magistrate to conduct the trial by following theprocedure in respect of case instituted otherwise than on policereport under Chapter XIX-B of Cr.P.C. though the offences aretriable as summons case by the Magistrate. Section 259 of Cr.P.C.reads as follows:- 259. Power of court to convert summons-cases into warrant cases - When in the courseof the trial of a summon-case relating to anoffence punishable with imprisonment for a termexceeding six months, it appears to theMagistrate that in the interests of justice,the offence should be tried in accordance withthe procedure for the trial of warrant-cases,such Magistrate may proceed to re-hear the casein the manner provided by this Code for the https://hcservices.ecourts.gov.in/hcservices/ trial of warrant-cases and may recall anywitness who may have been examined.In order to invoke Section 259 of Cr.P.C., it is essential that themaximum punishment of imprisonment imposable should exceed sixmonths. In the instant case, since the maximum punishmentimprisonment imposable is only three months, Section 259 of Cr.P.C.is not applicable.24. While conducting trial under Chapter XIX-B of Cr.P.C.in respect of case instituted otherwise than on police report, ifthe accused is not discharged under Section 245 of Cr.P.C. andfurther, if there is no offence which is triable under the saidChapter, what should be the procedure that should be followed hasnot been explicitly set out in Chapter XIX-B of Cr.P.C. At the sametime, as I have already stated, the Magistrate cannot proceedfurther under Sections 247 to 250 of Cr.P.C. A full-fledgedunderstanding of Chapter XIX-B of Cr.P.C. would make it abundantlyclear that if once the Magistrate finds that there is no scope forframing charge under Section 246 of Cr.P.C. as the case is triableas summons case, then, the Magistrate should convert the case intoone of a summons case and proceed further. 25. The material difference between Chapter XIX-B and XX ofCr.P.C., apart from framing of charges, is that in a warrant case,the accused has got right of cross examination of the prosecutionwitnesses at two stages namely, one prior to framing of charges andthe other after the framing of charges. But, in summons case, theaccused has got right of cross examination only once [i.e.,] afterrecording the plea of the accused. In a case where, as I havealready narrated, if the trial had been conducted by following thewarrant procedure during which the accused had first opportunity tocross examine the prosecution witnesses and if the same isconverted as a summons case, the question is whether the accusedwould be entitled for cross examining the prosecution witnessessecond time. The obvious answer is an emphatic no. But, one maycontend that when the case was tried as a warrant case, since theaccused was hopeful of having second chance to cross examine, somematerial facts would have been omitted to be elicited and it mayalso be argued that if such a second chance is not given to theaccused simply because the case has been converted as a summonscase, it may materially affect his defence. This apprehension hasa definite basis. But, at the same time, the accused is nothelpless. He can very well state the above reasons and may apply tothe court under Section 311 of Cr.P.C. requesting the court torecall the said witnesses for the purpose of further crossexamination. Since the right of the accused to cross examine thewitnesses is tune with with fair trial to be afforded to him asguaranteed under The Constitution of India, the court will do wellby recalling the said witness for the purpose of further crossexamination. But, in the instant case, the Magistrate committed a https://hcservices.ecourts.gov.in/hcservices/ serious irregularity in framing the charge under Section 352 of IPCand to continue to proceed with the trial further under ChapterXIX-B of Cr.P.C. However, this irregularity, in my consideredopinion, will not vitiate the entire proceedings in view of Section465 of Cr.P.C. The accused has not pleaded and placed any materialto show that failure of justice has occasioned to her because ofthe above irregularity committed by the learned Magistrate.Therefore, on this ground the judgement of the trial court cannotbe interfered with. 26. As we have noticed, the learned Metropolitan Magistratehad earlier passed an order under Section 210 of Cr.P.C. directingthat the private complaint case shall be tried as though it wasinstituted on a police report. In my considered opinion, this orderitself is not legal. First of all, the charges in the police casein C.C.No.10344 of 2001 relate to the occurrence which had takenplace on 10.09.2001, whereas, the charge in the private complaintcase in C.C.No.296 of 2002 relates to the occurrence on 14.09.2001.These two occurrences are not out of the same transaction. Theaccused are also different. In the police report case, there werefour accused; whereas in the private complaint case , there wereonly three accused. Further, an order under Section 210 of Cr.P.C.could be made before the commencement of trial. But, in this case,such an order was passed, only after examination of the prosecutionwitnesses and after questioning the accused under Section 313 ofCr.P.C. This is again illegal. Thus, the learned Magistrate oughtnot to have passed such an order to try the private complaint caseas a police report case at all.27. Proceeding further, if once such an order is made underSection 210 Cr.P.C. then, it is obvious that the complainant inthe private case has no independent role to play. The burden ofprosecuting the said case lies only on the Assistant PublicProsecutor, who is in charge of the police report case. But, in theinstant case, the learned Magistrate allowed the case to beconducted by P.W.1 as though it still remains to be a privatecomplaint case. This again is contrary to law.28. The learned Magistrate while delivering judgementclubbed both the cases and has written a common judgement. [Thereis a docket order clubbing both the cases]. Section 210 of Cr.P.C.does not provide for clubbing of two cases. Here, trying two casestogether should not be confused as though it means clubbing of thecases. Clubbing of these kinds of two cases is unknown to the Codeof Criminal Procedure. Thus, the clubbing of the two cases itselfis illegal. 29. Lastly, while writing the judgement the learnedMagistrate has considered the evidence recorded in the policereport case as evidence, in the private complaint case and viceversa. Admittedly, in the private complaint case, only one witness https://hcservices.ecourts.gov.in/hcservices/ was examined. But, the learned Magistrate has discussed elaboratelyabout all the five witnesses examined in the police report case, inthe private complaint case to find A2 guilty. Similarly, thedocuments exhibited in one case were all extensively discussed inthe other case. Thus, it is deplorable that learned MetropolitanMagistrate had made a complete mess.30. Now coming to the judgements of the appellate court,the learned Additional Sessions Judge, on his part, was equallyindifferent. First of all, when there is an order of the learnedMagistrate treating the private complaint case as a police reportcase under Section 210 of Cr.P.C. in the appeal in Crl.A.No.124 of2006 arising out of C.C.No.296 of 2002, the State should have beenthe respondent. But, in the said appeal, the State was not arespondent and, therefore, the learned Additional Sessions Judgedid not hear the State at all. Instead, the complainant –Mrs.Sushila, who was the respondent, was heard. The learnedAdditional Sessions Judge dealt with both the appeals separately.But at the same time, the learned Additional Sessions Judge hasalso committed a very serious illegality inasmuch as while dealingwith the appeal in respect of private complaint case., the learnedAdditional Sessions Judge has again dealt with the evidencerecorded in the police report case to come to the conclusion thatA2 in the private complaint is guilty of an offence under Section352 of IPC. Similarly, in Crl.A.No.123 of 2006, he has dealt withthe evidence recorded in the private complaint case. 31. In view of the above illegalities, the judgements ofboth the learned Metropolitan Magistrate as well as the learnedAdditional Sessions Judge convicting A2 in the private complaintcase for offence under Section 352 of IPC cannot be sustained. Theevidence of P.W1, the sole witness examined, cannot be consideredas a complete evidence since the said witness was not allowed to becross examined by the defence. In normal course, the said case inC.C.No.296 of 2002 should be remanded back to the learnedMetropolitan Magistrate by setting aside the order passed underSection 210 of Cr.P.C. and to direct him to deal with the said caseindependently and to deliver a fresh judgement. But, I do notpropose to do so for the simple reason that the offence underSection 352 of IPC is trivial in nature and the alleged occurrencein this case was of the year 2001.If the private complaint case isthus remanded back, I am sure, it will amount to serious violationof the right to speedy trial which has been recognised as afundamental right. Therefore, at this length of time, I do notpropose to remand the said case. So, I am inclined to set aside theconviction and sentnece in the private complaint case [C.C.No.296of 2002] and to acquit A2 in the said case. 32. Now coming to the police report case in C.C.No.10344 of2001 too, I find illegalities committed by the Courts below byusing the evidence recorded in private complaint case also in this https://hcservices.ecourts.gov.in/hcservices/ case. In this case also, on the very same grounds, the convictionof the petitioners/A1 to A4 is liable to be set aside and thematter may require to be remanded back to the learned MetropolitanMagistrate for passing a fresh judgement by exclusively consideringthe evidences, both oral and documentary, recorded in the policereport case. But, I do not propose to do the same also at thislength of time. If this matter is remanded to the learnedMagistrate, it will amount to another round of litigation impedingthe right of speedy trial guaranteed under Article 21 of theConstitution of India. Therefore, I restrain myself from remandingthe case back to the learned Metropolitan Magistrate as I haveproposed to appreciate the evidences recorded in the police reportcase independently.33. A perusal of the records would go to show that there isno dispute that the property in question bearing Door No.19 wastaken delivery by the Court Amin and the same was handed over toP.W.1. This fact is not disputed. The fact that it was kept underlock and key has been spoken to by P.W.1. Thereafter, on14.09.2001, when P.W.1 went to the property she found the accusedin the disputed property by breaking open the lock. This fact hasbeen spoken to by P.Ws.1 to 4. P.W.2 has spoken to the fact thatshe saw A1 to A4 breaking open the lock and entering into thehouse. P.W.3 has spoken to about the possession of the housedelivered to P.W.1. She has also spoken to about breaking open thelock by all the four accused and trespassing into the same. P.W.3has spoken to about the occurrence on 14.09.2001. Since there isno charge regarding the said occurrence, the evidence of thiswitness is of no use, except to the limited extent that she hasspoken to the fact that these accused were in possession of theproperty on 14.09.2001. P.W.4 has also spoken to the similar factsabout the occurrence on 14.09.2001. She has also spoken to the factthat these accused were in possession of the property. Nothingmaterial has been elicited from these two witnesses to disbelievethem in toto. During examination under Section 313 of Cr.P.C. theaccused have made only a general denial and they have not taken anyspecific stand. But, D.W.1 who claims to be the tenant of a portionin a disputed property, even in chief examination, has stated thaton 10.09.2001 the Court Amin took possession of the propertybearing D.No.19 and delivered possession to P.W.1. But, he hasdeposed that these accused did not break open the house which wasdelivered. Instead they are in possession of the neighbouring housebearing D.No.20. D.W.2 has spoken to the fact that on 10.09.2001she found the accused locking the house in question after deliverywas taken. But, he has spoken to the fact that the accused areresiding in D.No.20 and they did not trespass into the house inquestion viz., D.No.19/48. D.W.3 has also spoken to the fact thatthe accused were earlier in possession of the house bearingD.No.19/48 delivered to P.W.1 and after delivery of possessionP.W.1 kept it under lock and key. Thereafter, according to him, A1was in possession of the property bearing D.No.20 which was not https://hcservices.ecourts.gov.in/hcservices/ delivered to P.W.1. According to these witnesses, the accused didnot break open the house. D.W.4 is A4 – Saraiah. He has spoken tothe fact that on 10.09.2001, he witnessed the house propertybearing D.No.19 delivered to P.W.1. He signed the delivery note asa witness. Thereafter, the accused were residing in D.No.20 whichis a neighbouring house. Thus, according to him, they did not breakopen the house bearing D.No.19 at all. 34. From the above evidences, it is crystal clear thatthere is some dispute regarding the identity of the property. It isevident from the available evidence that the house propertybearing D.No.19 was delivered to P.W.1 and the said fact is notdisputed by the accused. After delivery was taken in the presenceof D.W.4 from the accused, the accused moved to the house bearingD.No.20 and they did not break open the house in question at all.Even before this court, the accused have filed an affidavit jointlywherein also they have stated that they are not in possession ofthe house bearing D.No.19, Rajamangalam Main Road, Villivakkam,Chennai. 35. If the above evidences are appreciated carefully, itwill emerge that there is only some dispute in respect of theidentity of the property. The prosecution has not proved the factthat the house bearing D.No.19 which was delivered to P.W.1 wasbroke open. The accused claimed that they are in possession of thehouse bearing D.No.20. Admittedly, the house bearing D.No.20 is notthe subject mater of delivery of possession by the Court Amin. Insuch view of the matter, I have to hold that the prosecution hasfailed to prove the case beyond reasonable doubt and so, theaccused are entitled for acquittal in the police report case also. 36. Now coming to Crl.O.P.No.17428 of 2011, since thiscourt acquits all the accused in the police report case, questionof enhancement of sentence does not arise. Regarding delivery ofpossession also this court cannot pass any positive directioninasmuch as the accused have filed an affidavit before this courtwherein the accused in paragraphs 3 and 4 have stated as follows:-"3. We further submit that in the abovecircumstances, we jointly and severally confirmthat we are not in possession as on date in theproperty which was delivered by Amin on twovarious dates to de facto complainant.4. We further submit that we alsoundertake that we will not interfere or will makeany encumbrance over the property in future. Wefurther inform that entire building is attachedproperty (sic) was demolished by de factocomplainant and we petitioners 1 to 3 are livingin Government Poramboke Land situated adjacent tothe court attached property." https://hcservices.ecourts.gov.in/hcservices/ In view of the above, further direction cannot be given in thisoriginal petition.37. Before parting with these cases, I want to go on recordto express my displeasure over the way in which the learnedMetropolitan Magistrate, who conducted the trial in both the casesin C.C.No.10344 of 2001 and C.C.No.296 of 2002 and the learnedAdditional Sessions Judge have conducted themselves in a cavaliermanner without showing due diligence and by ignoring the fact thatthey have to uphold the rule of law by following the procedureestablished by law. In normal course, for this court, to gothrough the records and to deliver judgement, it would have takenonly few hours. But, unfortunately, because of number ofirregularities and illegalities committed by the courts below, thiscourt had to spend number of days to repeatedly refer to therecords which have not even been arranged in order. I am hopefulthat this court will not come across any such lapse in the days tocome. 38. In the result, both the Criminal Revision Petitions areallowed and the petitioners/Accused are acquitted of all charges.Criminal Original Petition No.17428 of 2001 is dismissedaccordingly. Bail bonds, if any executed by the petitioners/accusedshall stand cancelled. Fine amount, if any, paid by thepetitioners/accused shall be refunded to them. Sd/Assistant Registrar /True Copy/Sub Assistant Registrar kmkTo1.The Additional District and Sessions Judge, FTC No.IV, Chennai.2.The X Metropolitan Magistrate, Egmore, Chennai. 3.The Inspector of Police, V-4, Rajamangalam P.S.,Chennai-49.4. -Do-Thro'The Principal Judge, Chennai.5. -Do-Thro-The Chief Metropolitan Magistrate,Egmore, Chennai.6. The Public ProsecutorHigh Court, Madras.+4 CCs to Mr.S.N.Narasimhalu, Advocate, Sr.No.25351Criminal Revision CaseNos.604 and 608 of 2011 andCrl.O.P.No.17428 of 2011UG(CO)MS:15/05/2012