Major K.Mathews v. The Inspector of Police

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 20-09-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL REVISION CASE No.1271 OF 2007Major K.Mathews...Petitioner-vs-State, represented by :The Inspector of Police, L&O,R-5, Virugambakkam Police Station,Chennai-600 093....RespondentRevision against the order, dated 31.07.2007, made in CriminalM.P.No.3507 of 2007 in S.C.No.30 of 2006 on the file of I AdditionalSessions Judge, Chennai.For petitioner : Major K.Mathews, Party in person.For respondent : Mr.A.Saravanan, Govt.Advocate (Criminal Side).J U D G M E N TThis revision is filed against the order of dismissal, passed inCrl.M.P.No.3507 of 2007 in S.C.No.30 of 2006 on the file of I AdditionalSessions Judge, Chennai, whereby the prayer of the petitioner fordischarge was rejected.2. Briefly stating, the facts are as under :2.1. Petitioner is accused before the I Additional SessionsJudge, Chennai, in Crime No.675 of 2005 of R-5 Virugumbakkam PoliceStation. The said case is pending on the file of the said Court inS.C.No.30 of 2006. He was chargesheeted under Sections 341, 324 and 307read with Section 30 of the Indian Arms Act, 1959.2.2. The case of the prosecution is that on 21.05.2005 at about08.00 p.m., while the de facto complainant Manivannan was proceeding onwalking, leading his pomaraine dog, there was some altercation between thepetitioner and the said Manivannan. On account of previous ill-willregarding the affairs of the house owners' association, the petitioner https://hcservices.ecourts.gov.in/hcservices/ asked Manivannan not to stand near the entrance of his house, for whichManivannan replied that if he came near the entrance, he might question.However, the petitioner got enraged and told him that if he was dareenough, he might stand there. Thereafter, he entered into his house andcame out with a revolver. While the de facto complainant was about toleave the place towards his house, the petitioner gave out that only if he(Manivannan) was eliminated, he could live peacefully and, so saying,proceeded to shoot Manivannan by means of his revolver. Since the de factocomplainant warded off the shot, he received injuries of the bullet on hisright forearm and right elbow. The occurrence is said to have taken placein front of the house of the petitioner.2.3. After laying charge sheet, the IX Metropolitan Magistrate,Saidapet, Chennai, took up the case in P.R.C.No.147 of 2005 and committedthe same to the Sessions Court, Chennai, which was transferred to IAdditional Sessions Judge, Chennai.2.4. Before the trial Court, the petitioner filed a petitionunder Section 227 Cr.P.C. to discharge him from the case and the saidpetition suffered dismissal on 31.07.2007. On the same day itself, thesaid Court framed charges against the petitioner for the offence underSection 307 IPC read with Section 30 of the Indian Arms Act.3. The main stay of the petitioner before the trial Court wasthat there were no materials to rope him into the allegations, levelled bythe prosecution and, hence, he was entitled for discharge. 4. In the petition for discharge, the petitioner stated that hewas serving in the Western War Field as a 'Company Commander' in the rankof Captain during the India-Pakistan War of 1971. It was further statedtherein that while he was pouring water to the plants maintained by him oneither side of the road in front of his house by taking a hose from hiscar shed, the de facto complainant came towards his house with a pomarainedog and picked up an altercation with him and since he hurled filthylanguage at him, besides pulling him down, he fell down on the road andsustained internal injuries on his lower back and, as the de factocomplainant aimed a blow on the head of the petitioner, apprehendingimminent danger to his life, on sudden and grave provocation, he picked upa revolver from his pants pocket and fired a single shot in self defence.The allegations in the petition further proceed to the effect that the defacto complainant appeared to have sustained injury to his right forearmand that there was no intention on the part of the petitioner for misusingthe revolver or causing any grievous hurt or death to the de factocomplainant, which would be evident from the fact that he did not fire asecond shot, even though the chamber of the revolver was still containingfive more cartridges. https://hcservices.ecourts.gov.in/hcservices/

5. The above said versions in the petition for discharge wouldclearly expose the admission on the part of the petitioner, explaining hisact at the time of occurrence.6. In addition to the aspects relating to this case, in thepetition for discharge, the petitioner levelled so many allegationsagainst one T.V.Ganesh, City Public Prosecutor, stating that he was actingagainst his interest in the court proceedings.7. While adverting to the present petition, the petitionerrequests for discharge on certain grounds. The first one is with regardto the accident register of the injured/de facto complainant, which showsthe following injuries :(1) Multiple abrasions - over right forearm- right arm; and- right chest.(2) Tenderness over right forearm X-ray was taken to the injured, which shows that there was no fracture.Doctor was of the opinion that the injured suffered simple injuries. 8. In this regard, the petitioner would vehemently argue that ifthe injured were stated to have been shot by the revolver, the bulletwould not have caused the above said abrasions, but should have enteredinto the body, causing grievous injury.9. No doubt, if the bullet was pumped into the body by a shotfrom the revolver, definitely, there would have been a grievous injury.As far as the nature of injury caused to the de facto complainant isconcerned, in view of the aforesaid admission of the petitioner, theaspect, as to the way in which the injured could have suffered, would beascertained only at the time of trial by examination of witnesses,including the doctor. The intention of the parties could also be found outby appreciation of oral evidence on record. According to the petitioner,the injuries on the person of the de facto complainant were not caused bya shot from revolver, but, it is to be borne in mind that the petitionerhimself conceded that he shot a fire at the de fact complainant. 10. The petitioner relied upon the following decisions of theHon'ble Supreme Court :(i) State of Bihar v. Ramesh Singh, AIR 1977 SUPREME COURT 2018,in which, it has been held as under :"Reading Sections 227 and 228 together injuxtaposition, as they have got to be, it would beclear that at the beginning and the initial stageof the trial, the truth, veracity and effect of the https://hcservices.ecourts.gov.in/hcservices/ evidence which the prosecutor proposes to adduceare not to be meticulously judged. Nor is anyweight to be attached to the probable defence ofthe accused. It is not obligatory for the Judge atthat stage of the trial to consider in any detailand weigh in a sensitive balance whether the facts,if proved, would be incompatible with the innocenceof the accused or not. The standard of test andjudgment which is to be finally applied beforerecording a finding regarding the guilt orotherwise of the accused is not exactly to beapplied at the stage of deciding the matter underS.227 or S.228 of the Code. At that stage, theCourt is not to see whether there is sufficientground for conviction of the accused or whether thetrial is sure to end in his conviction."(ii) Union of India v. Prafulla Kumar Samal, AIR 1979 SUPREMECOURT 366 = 1979 CRI.L.J.154, wherein, it is observed as follows :"The Judge, while considering the question offraming the charges under Section 227 of the Code,has the undoubted power to sift and weigh theevidence for the limited purpose of finding outwhether or not a prima facie case against theaccused has been made out."11. Armed with the above said authorities, the petitioner wouldcontend that the above decisions have formulated guidelines in the matterunder Section 227 Cr.P.C. It is also his argument that strong suspicionagainst the accused, if the matter remains in the region of suspicion,cannot take the place of proof of his guilt at the conclusion of thetrial. 12. Pertinent it is to state, that, at the initial stage, ifthere is a strong suspicion, which leads the Court to think that there isa ground for presuming that the accused has committed an offence, then, itis not open to the Court to say that there is no sufficient ground forproceeding against the accused.13. The petitioner also garnered support from the followingdecisions of the Hon'ble Apex Court :(i) M/s.Pepsi Foods Ltd. v. Special Judicial Magistrate, 1998SUPREME COURT 128, in which, it is held that when the complaint does notmake out any cause against the accused, the accused can be discharged atany stage of the trial, if the Magistrate considers the charge to begroundless. (ii) Dilawar Babu Kurane v. State of Maharashtra, AIR 2002SUPREME COURT 564, wherein, it is observed as under : https://hcservices.ecourts.gov.in/hcservices/ "12. Now the next question is whether a primafacie case has been made out against theappellant. In exercising powers under Section 227of the Code of Criminal Procedure, the settledposition of law is that the Judge whileconsidering the question of framing the chargesunder the said section has the undoubted power tosift and weigh the evidence for the limitedpurpose of finding out whether or not a primafacie case against the accused has been made out;where the materials placed before the Courtdisclose grave suspicion against the accused whichhas not been properly explained, the Court will befully justified in framing a charge and proceedingwith the trial; by and large if two views areequally possible and the Judge is satisfied thatthe evidence produced before him while giving riseto some suspicion but not grave suspicion againstthe accused, he will be fully justified todischarge the accused, and in exercisingjurisdiction under Section 227 of the Code ofCriminal Procedure, the Judge cannot act merely asa post office or a mouthpiece of the prosecution,but has to consider the broad probabilities of thecase, the total effect of the evidence and thedocuments produced before the court but should notmake a roving enquiry into the pros and cons ofthe matter and weigh the evidence as if he wasconducting a trial."14. I have heard the submissions of both sides with raptattention and also followed the principles laid down in the decisions ofthe Hon'ble Supreme Court.15. In order to consider the proceedings in favour of thepetitioner, there should be no ground in the complaint to implicate him inthe occurrence. However, the fact remains that the petitioner has admittedthe incident, but disputes the manner of assault. In the view of thisCourt, the contention of the petitioner is not tenable, for the reasonthat there are sufficient prima facie materials available against him, forframing charges. Whether the revolver was used for a purpose other thanthe one for which it was permitted would be determined only afterrecording evidence. 16. The version of the petitioner was that he took away therevolver from his pant pocket at the time of occurrence, on getting asudden provocation at the behaviour of the de facto complainant, but, the https://hcservices.ecourts.gov.in/hcservices/ prosecution version would go to the effect that after giving out certainwords against the de facto complainant, the petitioner entered into hishouse, came back with the revolver and then fired at the de factocomplainant. The veracity of these circumstances could not be decided bythis Court in these proceedings. No doubt, the licence issued to thepetitioner for the revolver was in force up to December,2005. Thepetitioner filed a private complaint against the de facto complainant,Inspector of Police, K.M.Varghese, K.M.Samuel and S.Vijayakumar, Advocate,who was the lawyer in C.C.Nos.1076 and 1077 of 1997, for the allegedoffences under various sections, namely, 120B, 500, 501, 506 (1) r/w 34I.P.C. Further, he also initiated legal proceedings against the CityPublic Prosecutor, by name, T.V.Ganesh, stating that the above saidpersons connived together and entangled the petitioner into the offences.If that be so, the motive for the alleged implication has also to beelicited at the time of final hearing of the case.17. Only if the Court finds that there are no prima faciematerials available on record, the accused would be entitled fordischarge. But, in this case, ample materials are available to indicatethe guilt of the accused and he has got every opportunity to agitate anddisprove them during the course of trial. Hence, at this stage, nogrounds are made out to discharge the petitioner from the case. As such,this revision is dismissed. Consequently, the connected CriminalM.P.No.1of 2007 also stands dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrardixitTo1.The Inspector of Police, L&O, R-5, Virugambakkam Police Station, Chennai-600 093.2.The I Additional Sessions Judge, Chennai.3. -do-Thro' The Principal Sessions Judge, chennai.4. The Public Prosecutor, High Court, Madras.1 cc To Mr.K.Mathews, Party -in- person, SR.58704.CRL.R.C.No.1271 OF 2007TEJ(CO)RVL 01.10.2007