THE HONOURABLE MR v. Kailasam2.Manoharan3.Rafig

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 28.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.1877 of 2003Velumani Gandhi .. Petitioner/Complainantvs.1.Kailasam2.Manoharan3.Rafig .. Respondents/AccusedPrayer: This Revisions Petition has been preferred against the order10.11.2003 made in C.M.P.No.3902 of 2003 on the file of the learnedDistrict Human Rights Judge, Coimbatore.For Petitioner : Mr.P.V.S.GiridharORDERThis revision has been preferred against the order passed by thelearned Human Rights Judge (District & Sessions Judge), Coimbatore.2.According to the revision petitioner, the petition filed by himunder C.M.P.No.3902 of 2003 under Section 2(d) of the Protection of HumanRights Act, 1993, was dismissed by the learned Human Rights Judge withoutconsidering the facts stated therein and also without examining thewitnesses cited under the complaint. 3.A perusal of the order of the learned trial Judge will go to showthat even according to the petitioner the occurrence had taken place on16.7.2003, but the complaint was preferred after a long delay. Thepetitioner has filed the complaint on 30.10.2003 i.e., about three monthsafter the occurrence. According to the petitioner, he was charged underNDPS Act for having found in possession of ½ kgs of ganja and a case hasbeen registered under Cr.No.111 of 2000 in C.C.NO.85 of 2003 and while hewas attending to the hearing of the said case he was threatened by A1-Sub Inspector of Police to admit the offence in C.C.No.85 of 2003 and onthe next hearing day i.e., on 16.7.2003 both the accused compelled him tosign in an unwritten paper. When this was questioned by his lawyerThenmozhi, the accused left the place. But when the lawyer went inside https://hcservices.ecourts.gov.in/hcservices/ the Court to prefer a complaint about the attitude of the accused againstthe petitioner, the accused assaulted him and dragged on him to the policestation in a jeep by saying that he is involved in an attempted murdercase which was subsequently charged under Section 302 IPC.4.The learned counsel appearing for the revision petitioner relyingon 1957 MLJ 157 (P.S.Ramaswami Nadar Vs. R.Viswanathan and another),would contend that even in the private complaint preferred by thepetitioner herein he has furnished the list of witnesses and withoutexamining the other two witness cited in his complaint the learnedJudicial Magistrate, after recording his sworn statement, has dismissedthe application, which is illegal. The facts of the above cited case isthat:"The petitioner in C.C.No.3971 of 1956 on the file ofthe Seventh Presidency Magistrate, Chennai, had preferred aprivate complaint under Section 200 of Cr.P.C., against theaccused, two in number under Section 420 and under Section 420r/w 109 IPC. In the cited case, the learned counsel, who appeared forthe petitioner, informed the court that there are some morewitnesses to be examined in the complaint and in spite of hisrepresentation the learned Magistrate has dismissed thecomplaint only on the basis of the sworn statement of thecomplaint. While condemning the attitude of the Magistrate,the learned Judge of this Court has observed as follows:-"The result is that when the complaint was presented, therewere two witnesses present along with the complainant, andunder Section 200, the Magistrate shall examine thecomplainant and the witnesses present (if any) on oath. Thesection is mandatory, and it is therefore obligatory on thepart of the Magistrate to examine not only the complainant,but also the witnesses who are present in Court. TheMagistrates in future will do well in asking the complainantas soon as he is examined on oath whether any witnesses arepresent in Court, and if witnesses were present, it is hisduty to examine them on oath; but if no witnesses arepresent, he will do well to mention in the order itself thatno witnesses were present according to the statement of thecomplainant or the advocate who appeared in Court. There isno such reference in the present case and very probably theMagistrate has overlooked the provisions of Section 200 asamended. According to the Section as it originally stood,it is enough if the Magistrate examined the complainant onoath. Under the new section, it makes it incumbent on theMagistrate to examine the witnesses who were present inCourt on oath, and he can apply section 203 only if afterexamining the complainant and witnesses who are present inCourt, he finds a sufficient ground for not proceeding withthe case." https://hcservices.ecourts.gov.in/hcservices/ While attacking the orders of the trial Court, the learned counsel for therevision petitioner would rely on AIR 1972 SC 1607 (Debendra NathBhattacharyya and others Vs. The State of W.B. and another), and wouldcontend that the Magistrate need not determine at the stage of issue ofprocess the correctness or the probability or improbability of individualitems of evidence on disputable grounds, but the existence or otherwise ofa prima facie case on the assumption that what is stated can be trueunless the prosecution allegations are so fantastic that they cannotreasonably be held to be true. 5.The facts of the case cited in 1957 MLJ 157 (P.S.Ramaswami NadarVs. R.Viswanathan and another) differs from the facts of the case on handbecause even though the complainant has furnished the list of witnesses inhis complainant, he has not filed any memo before the trial Court to showthat both the witnesses were present on the day of recording his statementi.e., on 03.11.2003. In this case no order of dismissal was passed afterrecording the sworn statement by the learned Human Rights Judge. On3.11.2003 the learned Judge has adjourned the case after recording thesworn statement of the complainant to 4.11.2003 and also from 4.11.2003 to7.11.2003 and subsequently to 10.11.2003, on which date only the learnedHuman Rights Judge has passed the impugned order, which is under challengein this revision. It is not the case of the complainant that in spite ofhis information to the learned Human Rights Judge, about the availabilityof the other two witnesses on 3.11.2003, 4.11.2003, 7.11.2003 and also on10.11.2003, the learned Judge ignoring the representations made by thecomplainant refused to examine the witnesses who were available in theCourt, and passed an order of dismissal. It is pertinent to note fromthe list of the witnesses furnished by the complainant in the complaintthat the second witness is an advocate viz. Mrs.Thenmozhi. It is no wherestated in the complaint that in the presence of those two witnesses citedin the complaint the learned Human Right Judge has passed an order ofdismissal. 6. The complaint under Human Rights Act by the complainant is that hewas assaulted by both the accused on 16.7.2003. In the complaint itself,he would admit that he was produced before the Magistrate for remand on16.7.2003 after the arrest and he was remanded to judicial custody in amurder case and that he was released on bail only after 90 days.This is the explanation given by the complainant for delay inpreferring the complaint after three months from the date of occurrence.But even after remand it is open to the complainant to prefer a complaintto the jail Superintendent to the effect that he was assaulted by theaccused (police officials) and also would have filed a petition to subjecthimself for treatment by the Medical Officer in the prison. But no suchstep was taken by the accused. It is on record that the accused is facingseveral criminal cases under NDPS Act and also under Indian Penal Code.Under such circumstances, I do not find any reason to interfere with thewell considered order of the learned Human Rights Judge. https://hcservices.ecourts.gov.in/hcservices/

7.In the result, the revision is dismissed confirming the order madein C.M.P.No.3902 of 2003 on the file of the District Human Rights Court,Coimbatore. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo,The Special Judge,District Human Rights Court, Coimabtore.1 cc to Mr.P.V.S.Giridhar Advocate SR.NO.38634SSV (co) RD 11.7.07Crl.R.C.No.1877 of 2003