The Madras High Court while allowing the petition said that at the stage of taking cognizance, the Magistrate cannot peruse the veracity of the witnesses and the duty of the Magistrate is whether any primacy facie material available to constitute the offence or not.

A Single Bench of Justice P Dhanabal passed this order while hearing a petition filed by Ilampiraiyan.

The Criminal Revision Case has been filed to set aside the order passed by the Judicial Magistrate Court, Rajapalayam, dated 08.04.2019.

The case of the Petitioner is that on 26.08.2018 at about 12.00 p.m, the petitioner was on the way to his house from Rajapalayam Town with his friend one Rajesh and at that time, one Pethi @ Thirumalai Raja the Sub-Inspector of Police, who is the first respondent and one Ayyappan, who were in vehicle check up in I.N.T.U.C Nagar bus stop, Rajapalayam and at the time, the said Rajesh who dropped the petitioner had gone to his village.

Thereafter, while the petitioner was walking on the way to his house, the second respondent intercepted the petitioner and sought to call his friend namely Rajesh. For that, the petitioner replied that he could not call his friend because he had no cell phone with him.

Thereafter, the first respondent asked about the petitioner’s village, name and caste. The first respondent scolded the petitioner with filthy language and abused his caste name and assaulted in the right side ear and vehemently pushed the face of the petitioner. When the same was questioned by the petitioner, the respondents 1 & 2 illegally took the petitioner to the police station and physically assaulted and thereby, he sustained injuries and there was bleeding in the ear, nose and eyes of the petitioner. After the custodial torture, the respondents 1 & 2 had severely humiliated the petitioner in the custody with derogatory words.

Thereafter, a false case was registered against the petitioner in case for the offences under Sections 294(b), 353, 506(i) of IPC.

Thereafter, the petitioner was taken to the 7th respondent hospital. At the time, the doctor, without seeing or providing any treatment to the petitioner, has given a medical certificate for remanding him in the said false case. Therefore, the petitioner filed a private complaint under Section 200 Cr.P.C, before the Judicial Magistrate, Rajapalayam. The Magistrate has dismissed the said application on 08.04.2019 by holding that there are contradictions between the statement of the witnesses. The Magistrate has not perused the documents filed by the petitioner with regard to the injuries sustained by him and stated that there are minor discrepancies in the statement of witnesses.

The counsel appearing for the petitioner contends that the respondents 1 to 6 assaulted the petitioner in the name of enquiry and thereafter, filed the false case against the petitioner. The 7th respondent, who is the doctor, has given a false certificate without examining the petitioner and therefore, he filed a private complaint before the Judicial Magistrate, Rajapalayam and the same was dismissed by the Magistrate on the ground that there are certain contradictions between the statement of witnesses. Those contradictions are minor contradictions. At the time of taking cognizance, the Magistrate need not look into the veracity of the witnesses. Already the police has foisted the false case against the petitioner and the same was also pending. The respondents have committed the serious offence and therefore, the petitioner has filed a private complaint before the Magistrate and the Magistrate without perusing the records and without analyzing the evidence and documents adduced by the petitioner, wrongly dismissed the petition. Hence, the order of the Magistrate is liable to be dismissed.

“The petitioner has filed a private complaint as against the respondents herein and therefore, the statement of witnesses was recorded. After recording the statement, the Magistrate dismissed the application by holding that there are major contradictions between the statement of witnesses. It is seen from the statement given by the petitioner that there are so many allegations as against the respondent and prima facie materials are available to take the cognizance and the Magistrate has failed to consider the statement of the petitioner and merely dismissed the application by holding that there are contradictions between the statement of witnesses. At the stage of taking cognizance, the Magistrate cannot peruse the veracity of the witnesses and the duty of the Magistrate is whether any primacy facie material available to constitute the offence or not.

As per the statement of witnesses, some offences are made out and thereby without considering the same, the Magistrate has dismissed the private complaint and not even discussed the documents filed by the petitioner and the injuries sustained by the petitioner. Therefore, the order of the magistrate is liable to be set aside.

From the judgment of the Court in Mukesh Jain S/o Prem Chand vs Balachander the Court noted that at the time of taking cognizance the Magistrate has to look into the complaint and other documents along with the sworn statement recorded by him. In the case on hand, the Magistrate has looked into the sworn statement above and failed to consider the complaint averments and documents. Therefore, in view of the said judgment and as discussed supra, the Court is of the opinion that the order passed by the Judicial Magistrate, Rajapalayam dated 08.01.2019 is liable to be set aside”, the Court observed while allowing the petition.

Accordingly, the Court set aside the order passed by the Judicial Magistrate, Rajapalayam dated 08.01.2019 and the matter is remanded back to the Magistrate, Rajapalayam for fresh consideration and the Magistrate is directed to pass orders after perusing the complaint and all the records and statement of witnesses.

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