ORDER

This petition has been filed to set aside the order passed in in Cr.M.P.No.

3256 of 2016 dated 10.02.2021 on the file of the learned Judicial Magistrate Court, Melur.

2.The petitioner herein is the respondent and the respondent herein is the petitioner in Cr.M.P.No.3256 of 2016. The respondent herein has filed a petition in Cr.M.P.No.3256 of 2016 to add the charge under Section 3(1) of TNPPDL Act and commit the case to the Court of Sessions.

3.A Brief substance of the petition in Cr.M.P.No.3256 of 2016 is as follows:

The prosecution has lodged final report against the respondent accused for the offence punishable under Sections 147, 447, 294(b), 506(ii) of IPC r/w. Section 3(1) of TNPPDL Act and Sections 120(b) and 149 of IPC. The Court has taken cognizance of the case only under Sections 147, 447, 294(b), 506(ii), 120(b) and 149 of IPC and taken the case on file as C.C.No.81 of 2013. The charges were framed against the respondent accused only for the offence under Sections 147, 447, 294(b), 506(ii), 120(b) and 149 of IPC. A perusal of the entire records reveals that a case under Section 3(1) of TNPPDL Act was made out which is triable only by the Court of Sessions and a charge under Section 3(1) of TNPPDL Act has to be framed and the case has to be committed to the Court of Sessions.

4.Brief substance of the counter filed by the respondent therein is as follows:

The chargesheet was filed against the respondent accused under Sections

147, 447, 294(b), 506(ii) of IPC and under Section 3(1) of TNPPDL Act r/w. Section 149 of IPC. But the case was taken only on file under Sections 147, 447, 294(b), 506(ii) of IPC and the case was posted for trial. There is no documentary evidence to attract an offence under Section 3(1) of TNPPDL Act. In survey No.91/1A2, 91/1A3 of Thirumohur village, 2587 square feet was alleged to have been purchased by the defacto complainant. But there was no stone pillars erected along the boundaries and there was no coconut saplings in that plot. The respondent accused never dumped waste materials in the property of the defacto complainant. Since the defacto complainant is a Senior Police Officer, using his official power, he has lodged a false complaint against the respondent. The property was kept as a vacant site and the same was in the peaceful possession of the defacto complainant. Instead of filing a petition before the Principal District Court, this petition was wrongly filed before the Magistrate Court and prayed the petition to be dismissed with costs.

5.After hearing both sides, the trial Court allowed the petition and committed the case to the Sessions Court. Against the same, the petitioner has preferred this revision case.

6.On the side of the revision petitioner, it is stated that the allegation made out against the petitioner is false and frivolous. There is no documentary evidence to attract the offence under Section 3(1) of TNPPDL Act. In survey No.91/1A2, 91/1A3 of Thirumohur village, no stone pillars was erected along the boundaries and there was no coconut saplings planted in the area. The petitioner has not dumped any waste material in the property. The petition was filed by the complainant without any supporting documents or statements. Instead of filing petition before the Principal Sessions Court, the complainant has filed this petition before the learned Judicial Magistrate, which is not maintainable. The impugned order was passed, when there was no change of circumstances in the case. Unless there is evidence or record to support the addition or alteration, the power to add or alter the charge cannot be exercised. There was no allegation under Section 120(b) of IPC. But, the Judicial Magistrate has framed a charge under Section 120 (b). The prosecution has failed to question the earlier endorsement of the learned Judicial Magistrate, Melur, while taking cognizance of the case on 11.07.2013. Without filing an appeal or revision, the doctrine of Functus officio will come into force.

7.On