K.Shajahan v. Subramani Gounder

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.6.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1328 of 2006K.Shajahan... Petitioner /Defacto Complainantvs.1.Subramani Gounder2.Mannu Gounder3.State rep.by Inspector of Police, Arni Town Police Station, Tiruvannamalai District... Respondents /Crime No.57/02Complainant Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 4.7.2006, passed by the Judicial Magistrate, Arni,Tiruvannamalai District, in C.C.No.17 of 2005.For Petitioner : Mr.J.Saravana VelFor Respondent : Mr.M.Arunachalam for R1 & R2 Mr.Hasan Md.Jinnah,A.P.P.for R3 O R D E R Challenging and impugning the order dated 4.7.2006, passed bythe Judicial Magistrate, Arni, Tiruvannamalai District, inC.C.No.17 of 2005 ,this criminal revision case is focussed.2. A summation and summarisation of the relevant facts,which are absolutely necessary and germane for the disposal of thiscivil revision petition would run thus:The police laid the police report in terms of Section 173Cr.P.C. as against the accused for the offences under Sections447, 506(2). r/w.34 IPC. The accused pleaded not guilty,whereupon, after complying with the procedures and formalities,trial was commenced. Ultimately, the learned Magistrate acquittedthe accused. Being aggrieved by and dis-satisfied with the saidacquittal, the present revision has been filed on various grounds,the gist and kernal of them would run thus:-The Magistrate had given undue importance to thedeposition of P.W.7-the Court Amin and erroneously arrivedat the conclusion that there was no physical delivery at allin favour of the de-facto complainant and that the accusedcontinued to be in possession of the suit property. The https://hcservices.ecourts.gov.in/hcservices/ Magistrate was wrong in holding that the thatched shed,which was there in the suit property, was not removed at allat the time of giving delivery. The ratiocination adheredto by the Magistrate is perverse, due to wrong appreciationof evidence and applying the law. Even though clinchingevidence was adduced, pointing out that the accusedcommitted trespass and also intimated P.W.1, nonetheless theMagistrate simply disbelieved the prosecution case as thoughthe case was not proved.3. Heard both sides.4. The point for consideration are as under:(i) Whether the approach of the Magistrate in ignoringthe Court records, evidencing delivery in favour of P.W.1,and in holding that there was no delivery of the propertyeffected in favour of P.W.1 and when the accused continuedto be in possession of it, is perverse and based on wrongappreciation of facts and non-application of appropriatelegal provisions?.(ii) Whether the Magistrate was wrong in giving hisfinding that no offence of trespass and intimidationoccurred?.5. Points (i) & (ii): Both these points are taken together fordiscussion, as they are inter-linked and entwined, interwoven andinterconnected with each other.6. The learned counsel for the revision petitioner wouldadvance and develop his argument to the effect that the lower Courtshould have accepted the documents filed on the prosecution side,evidencing delivery effected in favour of P.W.1 through Court; eventhough P.W.1 was in effective possession of the suit property, theMagistrate simply believed that the accused were in possessioncontinuously, irrespective of the delivery effected through Courtand the prosecution witnesses established the case against theaccused, but the Magistrate took a wrong view.7. Whereas the learned counsel for the accused/respondent, byway of pulverising and torpedoing the arguments as put forth by thelearned counsel for the revision petitioner, would unconvincinglysubmit that the lower Court correctly and appropriately held thatthe so called delivery was only paper delivery and actual physicalpossession was with the accused and it continued to be so, andthere was no chance of any fresh trespass having been committed bythe accused and there was no necessity also for them; theallegation that the accused intimidated P.W.1 was not fortified orbuttressed by any evidence much less clinching evidence and hencethe acquittal recorded by the lower Court warrants no interference.Furthermore, the learned counsel for the accused also would citethe following two decisions of the Honourable Apex Court: https://hcservices.ecourts.gov.in/hcservices/ (i) 2002 Supreme court cases (crl) 1448 - Bindeshwari PrasadSingh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand)and another, an excerpt from it would run thus:"13. The instant case is not one where any such illegalitywas committed by the trial court. In the absence of anylegal infirmity either in the procedure or in the conduct ofthe trial, there was no justification for the High Court tointerfere in exercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a finding different fromthe trial court. In the absence of manifest illegalityresulting in grave miscarriage of justice, exercise ofrevisional jurisdiction in such cases is not warranted.14. We are, therefore, satisfied that the High Court was notjustified in interfering with the order of acquittal inexercise of its revisional jurisdiction at the instance ofthe informant. It may be that the High Court on appreciationof the evidence on record may reach a conclusion differentfrom that of the trial court. But that by itself is nojustification for exercise of revisional jurisdiction underSection 401 of the Code of Criminal Procedure against ajudgment of acquittal. We cannot say that the judgment ofthe trial court in the instant case was perverse. No defectof procedure has been pointed out. There was also noimproper acceptance or rejection of evidence nor was thereany defect of procedure or illegality in the conduct of thetrial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjeeand Others vs. State of W.B.and others, an excerpt from it wouldrun thus:"22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by theHigh Court only in very exceptional cases where the HighCourt finds defect of procedure or manifest error of lawresulting in flagrant miscarriage of justice."8. At this juncture, I would like to recollect the followingmaxims:(1) Actus curiae neminem gravabit(2) Actus legis nemini facit injuriam(3) Executio juris non habet injuriamThe aforesaid maxims would connote and denote that no one couldraise any objection or complaint that he has been wronged by anysteps taken by the Court. In this case, it is axiomatic andglaringly evident that P.W.1, through Court process, obtaineddelivery of the property concerned, and to that effect theMagistrate himself has given his finding. However, the Magistrate,by placing reliance on the deposition of P.W.7-the Amin, which isto the following effect https://hcservices.ecourts.gov.in/hcservices/ @30/8/2001 md;W Muzp rhh;g[ ePjpkd;w rPdpah; bga;tpg;ghf ,Ue;jnghJ. 30/8/2001md;W khtl;l chpikapay; ePkd;w cj;jput[ 298-99 d;go 15. eurpk;kd; bjU. bfhrg;ghisak;Muzpf;F fpuhk eph;thf mYtyh; bgUkhs;/ cjtpahsh; re;jpud; kw;Wk; Ch; kf;fs;MfpnahUld;. RthjPdk; mspf;f brd;nwd;/ mg;nghJ. m';fpUe;j rpd;dft[z;lh; RthjPdk;bfhLj;J bjhptpf;f RthjPdk; mspg;gjhft[k;. fPw;W bfhl;lifia ,uz;L ehl;fs; fHpj;Jgphpg;gjhf brhd;dh;/ RthjPd urPjpy; v1 ifbaGj;J bra;jhh;/ nghyPrhh; tprhhpj;jdh;/RthjPd urPJ efy; m/rh/M3 Mf FwpapL bra;ag;gl;Ls;sJ/@ arrived at the conclusion that the delivery given was only a paperdelivery and not actual delivery and that the possession continuedto be with the accused. In fact, having this in mind, theMagistrate approached the case and arrived at a wrong conclusion.Once there is a valid Court order, whereupon there emerged therecord of delivery, evidencing actual delivery of the property, on30.8.2001. It is not open for the accused, who is bound by suchCourt order, to veer round and take a plea before the criminalCourt as though the property delivered was only a paper delivery;that the accused continued to be in possession and that in such acase, he should not be treated as a trespasser. If at all theaccused was aggrieved by such alleged paper delivery and recordingof such paper delivery, he ought to have taken action to get suchorder of Court set aside. It is a common or garden principle thatin the execution proceedings, after delivery, the matter has to bereported to the Court, whereupon the Court would be recording thedelivery. 9. In this case, that process was over and there is nothing toshow that the executing Court itself has not recorded the actualdelivery. Once the Magistrate himself got satisfied that recordwise delivery was handed over to P.W.1, he ought not to haveentertained the contrary version, which was made to be put forththrough the mouth of P.W.7. 10. I am at a loss to understand as to how P.W.7-being theCourt Amin could utter out such a plea, as extracted supra. It isthe duty of P.W.7 to give effective delivery, but shockingly andillegally P.W.7 himself had the mendacity and audacity to deposethat effective physical delivery was not given to P.W.1, however hegave report to the executing Court that physical delivery was givennot given to P.W.1, however, he gave report to the executing Courtthat physical delivery was given. Holus bolus , before the criminalCourt, P.W.7 deposed as though there was a hut at the time ofdelivering the property in favour of P.W.1 and that two days timewas sought by the accused for removing it. If this sort of pleasand evidence are allowed to be entertained, certainly, the Courtprocess would be set at naught and it would be mockery of justice.At this juncture, I would like to highlight and spotlight the factthat there is a legal defence 'paper delivery' which could be putforth by a third party to execution proceedings not by thejudgement debtor himself, who supinely and passively accepted therecording of delivery by the executing Court. My mind is redolentand reminiscent of the following maxims: https://hcservices.ecourts.gov.in/hcservices/ (i) Nullus commodum capere potest de injuria sua propria; (ii) Nul prendra advantage de son tort demesne, which meansno one can take advantage by his own wrong. 11. The learned Magistrate should have considered the fact asto whether on 11.2.2002, at the relevant time, P.W.1. attempted toraise a compound wall and whether there was obstruction or not andalso as to whether the accused involved in intimidation; instead,as an appellate Court, the Magistrate simply entertained a rowingand broad based wrong enquiry as to whether delivery effected on30.8.2001 is a paper delivery or actual delivery and it was beyondthe scope of the trial and it is clearly in excess of his powers.In view of such wrong approach, he mis-directed himself and lookedaskance at the very genesis of the prosecution case and held thatthe entire case of the prosecution was not made out.12. The learned counsel for the accused would argue that inthis case, irrespective of the so called delivery, the accusedcontinued to be in possession and the lower Court believed it andthere is nothing wrong in it. 13. I would like to dis-agree with such an argument as putforth by the learned counsel. If at all there is any evidence,aliunde clearly capable of demonstrating and proving that aftersuch Court delivery effected through the Court, the accusedpeacefully in occupation of the suit property and established hispossession; in other words, if the accused could prove that eventhough technically he might be trespasser as on 11.2.2002, he hadbeen in established possession of the suit property, then thequestion of pressing into service Section 447 of IPC would notarise. But in this case, the approach of the Magistrate was not onthat line and hence, the finding of the Magistrate required to beset aside and the matter is liable to be remitted back to theMagistrate Court to analyse the evidence in the light of theobservation made by this Court and arrive at a reasoned freshconclusion. Accordingly, the matter is remitted back to the lowerCourt, who is expected to dispose of the matter, within a period ofthree months from the date of receipt of copy of this order.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1. THE JUDICIAL MAGISRATEARNI,TIRUVANNAMALAI DISTRICT https://hcservices.ecourts.gov.in/hcservices/

2.-Do-Thro THE CHIEF JUDICIAL MAGISTRATETIRUVANNAMALAI3. THE INSPECTOR OF POLICEARNI TOWN POLICE STATION,TIRUVANNAMALAI DISTRICT.4. THE PUBLIC PROSECUTORHIGH COURT, MADRASCopy to: The Section Officer, VR Section,High Court, Madras.1 cc To Mr.J.Saravanavel, Advocate, SR.25070Crl.R.C.No.1328 of 2006KS(CO)SRA(16/7/2009)