Balu v. Jayaganthan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:28.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.543 of 2007Balu... Petitioner vs.1.Jayaganthan2.Gnanamani3.Manoharan4.The Inspector of Police, Maduravoyal Police Station, Chennai-600 095... Respondents Petition filed under Section 397 r/w 401 of Cr.P.C. against thejudgement in S.C.404/06 dated 5.1.2007 passed by the AdditionalDistrict Sessions Judge, IV Fast Track Court, Poonamallee.For Petitioner : Mr.SankarasubbuFor Respondents : Mr.R.Muniyapparaj,G.A. ORDER Challenging and impugning the judgement dated 5.1.2007passed by the Additional District Sessions Judge, IV Fast TrackCourt, Poonamallee, this criminal revision case is focussed.2. Compendiously and consciously, the facts absolutelynecessary and germane for the disposal of this criminal revisioncase would run thus:-(a) The police laid the police report in terms of Sec.173 ofCr.P.C. as against the respondents 1 to 3 herein/accused for theoffences under Sections 452 and 427 r/w.34 of IPC and 3(1) ofT.N.P.P.D.L.Act. Inasmuch as the accused pleaded not guilty, trialwas conducted. (b) During enquiry, on the side of the prosecution, P.Ws.1 to7 were examined, Exs.P1 to P7 and M.O.1 were marked. On theaccused's side, no oral or documentary evidence was adduced.(c) Ultimately, the trial Court acquitted the accused. 3. Animadverting upon the said acquittal, the de-factocomplainant-P.W.1 filed this revision on various grounds, the warp https://hcservices.ecourts.gov.in/hcservices/ and woof of them would run thus:The trial Court without considering the evidence of P.Ws.1 to3-the eye witnesses, simply looked askance at their evidence andacquitted the accused. The reasonings given by the Magistrate thatSection 3(1) of the T.N.P.P.D.L.Act would not come into operationis perverse for the reason that even if a private property isdamaged by an individual, it would attract the said penal Section.Accordingly, the revision petitioner prays for setting aside thejudgement of acquittal and for passing suitable orders.4. Heard the learned counsel for the revision petitioner aswell as the learned Government Advocate, who would submit that theState has not preferred any appeal. 5. Despite serving notice on R1 to R3/accused none appeared.6. Heard the learned counsel for the revision petitioner, whowould reiterate the grounds of revision and develop his argument tothe effect that simply because there is delay on the part of thepolice in registering the FIR and that too, when they have takentime to conduct some enquiry, the genuineness of the complaintlodged by P.W.1 should not have been rejected by the trial Court.In a cryptic manner the Magistrate recorded as though the evidenceof P.W.3 is unbelievable. The ratiocination adhered to by theMagistrate that Section 3 of T.N.P.P.D.L. Act is not applicable isperverse.7. Whereas, the learned Government Advocate would submit thatthe reasonings given by the Magistrate for not applying Section 3(1) of the T.N.P.P.D.L. Act is not tenable as it is quiteantithetical to the well known interpretation of statutes.8. At the out set itself I would like to point out that theMagistrate misunderstood the scope and ingredients of Section 3 ofthe T.N.P.P.D.L. Act. 9. A plain reading of the said Tamil Nadu Property (Preventionof Damage & Loss) Act coupled with the objects and reasons whichexisted anterior to the amendment Act 46 of 1994 Act, would revealthat the legislators intended to punish offenders who caused damageto the public property and even before such amendment there isnothing to indicate that such infliction of damage to the publicproperty should be based on political motive or it should occurduring any political upheaval or demonstration or rioting. Ifbefore such amendment Act , even if an individual to achieve hisobject or motive caused mischief to the public property, it waspunishable and it was not contemplated therein that such inflictionof mischief should be due to political motive etc. The amendmentAct 46 of 1994 would enlarge the scope of the Act that even if anyindividual inflicts injury to the property of a private partyhaving any motive, the penal provisions of Section 3 of the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Property (Prevention of Damage & Loss) Act would be attracted.A plain reading of Section 3(1) of the Act clearly contemplates theterm 'whoever', which means that if any individual perpetrates anymischief to the property worth more than Rs.100/- of any person andnot necessarily the Government property, it would be within themischief of Section 3(1) of the Tamil Nadu Property (Prevention ofDamage & Loss) Act.10. I would like to extract hereunder Sections 2(4) and 3(1)ofthe Tamil Nadu Property (Prevention of Damage & Loss) Act."Section 2(4): "property" means any property movableor immovable or machinery owned by or in possession of,or under the control of any person including,[a] the Central Government; or[b] the State Government; or[c] any local authority; or[d] the Tamil Nadu State Electricity Board; or[e] any University in this State; or[f] any co-operative society including a landdevelopment bank registered or deemed to be registeredunder the Tamil Nadu co-operative Societies Act, 1983[Tamil Nadu Act 30 of 1983]; or[g]any corporate body constituted under any Actpassed by Parliament or the Legislative Assembly of thisState; or[h] any other corporation owned or controlled by theCentral Government or the State Government; or[i] any institution, concern or undertaking or,[j] any companySection 3(1): Punishment for committing mischief inrespect of property:- Whoever.-[i] commits mischief by doing any act in respect ofany property and thereby causes damage or loss to suchproperty to the amount of one hundred rupees or upwards;or[ii] .....[iii] ....."11. As such , a cumulative reading of Section 3(1) read withSection 2(4) of the Tamil Nadu Property (Prevention of Damage &Loss) Act would clearly indicate and exemplify that the accused andthe injured may be two individuals, so to say the person whoperpetrates the crime and the person who sustained damage can be https://hcservices.ecourts.gov.in/hcservices/ private parties and nowhere it is stated that such infliction ofcrime should be during the time of any rioting or politial upheavalor demonstration, dharna etc. As such I hold that in the facts andcircumstances of the case, the prosecution was justified inpressing into service Section 3(1) of the said Act.12. No doubt earlier the said Tamil Nadu Public Property(Prevention of Damage and Loss) Act has been meant for protectingthe public properties and if there is any damage to the publicproperties during any political upheaval, demonstrations etc., theaccused are punishable. But subsequently, the amendment is so wideenough to include even damages caused to the private individualparty by another private individual. As such, the finding of theMagistrate on that count is untenable and perverse, warrantinginterference in this revision. 13. As appositely and correctly highlighted by the learnedcounsel for the revision petitioner, P.W.3 is not stated to be aninterested witness. He, without any embellishment, detailed anddelineated, narrated and portrayed as to what happened actually.According to him A1 to A3 joined together in furtherance of theircommon intention, damaged the hut of P.W.1 and during cross-examination also apparently nothing has been highlighted as towhether his evidence is fraught with any falsity etc. As such, theMagistrate should not have in such a cryptic manner, in one linesimply brushed aside the evidence of P.W.3 as one not believable.Ofcourse, P.W.2 is the close relative of P.W.1. But the evidenceof P.W.3 coupled with the evidence of P.W.1 should have beenconsidered by the lower Court in the proper perspective and thattoo, keeping in mind the dictum of the Honourable Apex Court thatthe evidence of relative witness should not be discarded as such,if it is otherwise blemishness and free from doubt. 14. At this juncture, my mind is reminiscent and redolent ofthe following decision of the Honourable Apex Court:(2009) 2 Supreme Court Cases(Cri) 389 – GURDEV RAJ VS. STATEOF PUJAB, an excerpt from it would run thus:"14. It also cannot be said that since Rajani Balaand Pooja were closely related to deceased Bhushan Lata,their version could not have been believed. In ouropinion, the trial Court was wholly right in holding thatRajani Bala and Pooja were no doubt relatives of thedeceased but they could not be termed as 'interested'witnesses. The court was also right in further statingthat close relatives would be most reluctant to spare thereal assailant and would falsely implicate an innocentperson. After seeing the demeanour of witnesses, thetrial Court believed both of them. The High Court againconsidered their evidence and confirmed the findingrecorded by the trial Court. We see no infirmity in the https://hcservices.ecourts.gov.in/hcservices/ approach of the trial court as well as of the High Court.It, therefore, cannot be said that by believing these twowitnesses, any illegality was committed by the Courtsbelow."15. It is therefore clear from the Honourable Apex Court'sdecision on relative witness that simply because certain witnessesare related to the victim there is no hard and fast Rule that theirevidence should be discarded16. P.W.6 the police official concerned candidly andcategorically admits that soon after the occurrence, i.e. on11.3.2004 itself P.W.1 lodged the complaint with him and it isbecause of the fact that the police made some preliminary enquiriesthat there occurred the delay in registering the FIR. In such acase, P.W.1 cannot be blamed for the delay. But the Magistratetook it otherwise.17. From the fact that the coconut leaves removed from theroof of P.W.1's house were not found in damaged condition, itcannot be construed as a weak point on the prosecution side. I amfully aware of the fact that the revisional Court should notnormally re-evaluate the factual evidence. But the reasoningsgiven by the Magistrate in his judgement, inch by inch militateagainst the normal interpretation of evidence and approach, whichis expected of the trial Court and as such, the revisionaljurisdiction of this Court is attracted. 18. At this juncture, I call up and recollect the followingdecisions of the Honourable Apex Court:(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 under https://hcservices.ecourts.gov.in/hcservices/ Section 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."19. A bare perusal of the above decisions would exemplify anddemonstrate that the High Court, while exercising its revisionaljurisdiction is not expected to interfere with the finding of factarrived at by both the Courts below simply because one other viewis possible or a different view could be taken. The mandates ofthe Honourable Apex Court could be applied to the facts of thiscase and accordingly interference is warranted.20. In the result, the judgement of the lower Court is setaside and the matter is remitted back to the Magistrate Court toconsider the matter in the light of the discussion supra and theprecedents and the appropriate provisions of law. I make it clearthat simply because the matter is remitted back to the trial Courtit should not be taken as an indication that the case has beenremitted back only for the purpose of recording conviction and forimposing sentence. Untrammelled and uninfluenced by theobservations made by this Court in this order, the Magistrate is atliberty to decide the case independently and come to a conclusionas per law. The Magistrate is expected to dispose of the matterwithin three months from the date of receipt of copy of this order. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrarmsk https://hcservices.ecourts.gov.in/hcservices/ ToThe Additional District Sessions Judge, IV Fast Track Court, Poonamallee. Crl.R.C.No.543 of 2007MBS {CO}TP/28.8.2009.