Kanniappan vs State

S. Nagamuthu, J.—The Respondents 2 to 4 are the accused in C.C. No. 17 of 2007 on the file of the District Munsif cum Judicial Magistrate, Ilayangudi, facing prosecution for the offence punishable u/s 379 I.P.C. In the F.I.R., the name of the Petitioner was shown as one of the accused. However, on completing the investigation, the first Respondent laid the charge sheet omitting the Petitioner, since according to the first Respondent there were no materials collected to implicate the Petitioner herein.

From the records it is seen that P.W.1 was examined before the lower Court on 26.07.2002. In the Chief examination, he has said that he gave complaint against the Petitioner also. At that stage, the Chief examination was stopped at the request of the Assistant Public Prosecutor. Thereafter, a petition u/s 319(1) Cr.P.C was filed before the learned Magistrate by the Assistant Public Prosecutor in M.P. No. 5771 of 2007 to include the Petitioner as one of the accused. The learned Magistrate, by order dated 03.03.2008 has allowed the said application. Challenging the same, the Petitioner has come forward with this Revision Case.

I have heard the submissions of the learned Counsel for the Petitioner and the learned Government Advocate (Criminal Side) for the first Respondent. No notice is issued to Respondents 2 to 4 since the order that is going to be passed would not be prejudicial to them.

Admittedly, the Petitioner was shown as accused in the F.I.R. But, during the investigation, he turned out that he was not involved in the crime and therefore, in the charge sheet, his name was omitted. The learned Magistrate has taken cognizance and issued summons as against the Respondents 2 to 4 alone. Now, in the Chief examination of P.W.1, nothing has been said except stating that P.W.1 gave the complaint against the Petitioner also. I do not know as to why the Chief examination was abruptly stopped there at the request of the Assistant Public Prosecutor. It is needless to say that u/s 319(1) Cr.P.C, if any person is to be included as accused, the same should be made only on the basis of the evidence let in by the prosecution. In this case, P.W.1 has not been examined in full. As stated above, even the Chief examination was not completed. When the Chief examination is incomplete and without opportunity for cross-examination etc., the evidence of P.W.1 cannot be construed to be complete evidence for the purpose of Section 319 Code of Criminal Procedure Further, even in the evidence adduced in part in the Chief examination, P.W.1 has not at all stated anything against the Petitioner, except saying that the complaint was given against the Petitioner also, about which there is no dispute at all in this case. u/s 319 Cr.P.C, if only, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. As stated above, a cursory perusal of the evidence of P.W.1 recorded in part would make it manifestly clear that absolutely there is nothing in his evidence to make out even a prima facie case that the Petitioner has committed any offence. Thus, in my considered opinion, the order impugned in this case is not sustainable and therefore, the same is liable to be set aside.

Accordingly, this Criminal Revision Case is allowed and the order of the learned District Munsif cum Judicial Magistrate, Ilayangudi dated 03.03.2008 in Crl. M.P. No. 5771 of 2007 in CC No. 17 of 2007 is set aside. The connected M.P. (MD) No. l of 2008 is closed.