K.S. Dhandapani vs State

S. Nagamuthu, J.—On the information furnished by one Mohanambal @ Kamalam, the Respondent registered a case in Crime No. 473 of

2004 on 08.10.2004 against four named and ten unnamed accused for alleged offences under Sections 147, 447, 427, 294(b) and 506(ii) I.P.C.

In the said F.I.R., the Petitioner who is an Ex.MLA, was shown as the second accused. The allegation was that the named accused along with the

unnamed persons, formed an unlawful assembly, criminally trespassed into the land belonging to the de-facto complainant, caused damage,

criminally intimidated the defacto complainant and also abused the defacto complainant in filthy language.

On completing the investigation, the Respondent however filed final report against only four persons. The Petitioner was not arrayed as an

accused. Curiously, before taking cognizance on the said final report, the learned Magistrate did not issue notice to the defacto complainant as per

the law laid down by the Hon''ble Supreme Court in Bhagwant Singh Vs. Commissioner of Police and Another, . Thereafter, the learned

Magistrate framed charges against those persons, who were arrayed as accused in the final report. During trial, the defacto complainant was

examined as P.W.I and one Duraisamy was examined as P.W.2 and they were also cross-examined at length by the accused. In their deposition,

P. Ws.1 and 2 stated that the Petitioner was one among the accused who committed all the crimes. Based on the said evidence of P. Ws.1 and 2,

the learned Assistant Public Prosecutor, who was in charge of the case, filed Crl.M.P. No. 4053 of 2008 before the learned Judicial Magistrate,

u/s 319 of the Code of Criminal Procedure requesting the Court to issue summons to the Petitioner by adding him as an accused. The learned

Magistrate by order dated 01.07.2008 allowed the said petition. The Petitioner was aggrieved by the same. Therefore, the Petitioner filed Crl.R.C.

No. 973 of 2008 before this Court, challenging the said order.

This Court, by order dated 07.08.2008, set aside the said order mainly on the ground that it was a non-speaking order as the same did not

reflect the proper application of mind and the same was passed in a mechanical fashion. Consequently, this Court remanded the matter back to the

learned Magistrate for fresh orders in accordance with law as per the settled principles of law laid down by the Hon''ble Supreme Court in various

judgments.

Accordingly, when the matter was again taken up for hearing by the learned Magistrate, the Petitioner appeared before the learned Magistrate

voluntarily and filed a memo of objection. Very strangely, the learned Magistrate allowed the Petitioner to raise all his objections and also to submit

his arguments through a counsel. It is unfortunate that the learned Magistrate was not appraised of the legal position that while the matter is being

considered u/s 319 of the Code of Criminal Procedure, right of representation is not available to a proposed accused.

Before the learned Magistrate, yet another strange argument was advanced by the learned Assistant Public Prosecutor, Grade-I, who was

incharge of the case, inasmuch as he submitted that the Investigating Officer had intentionally omitted to include the name of the Petitioner in the

final report though there were materials collected during investigation pointing out the participation of the Petitioner in the commission of the crime.

The learned Assistant Public Prosecutor further submitted that based on the averments in the F.I.R. and in the statements of witnesses recorded u/s

161(3) of the Code of Criminal Procedure, the Petitioner needs to be impleaded as an accused u/s 319 of the Code of Criminal Procedure. I do

not understand as to how such an argument could be advanced by the learned Assistant Public Prosecutor before the said Magistrate when law is

well settled that while deciding a petition filed u/s 319 of the Code of Criminal Procedure, the learned Magistrate is required to consider only the

evidence of the witnesses recorded during trial alone. Had it been true that intentionally the name of the Petitioner was omitted in the final report, it

is not explained to the Court as to why the learned Assistant Public Prosecutor, Grade-I, did not request the learned Magistrate even at the initial

stage of taking cognizance to issue summons to the Petitioner also. It is also not explained to the Court as to why no further steps were taken by

the prosecution to array the Petitioner as an accused in the case, if it is their definite stand that enough materials had been collected by the

Investigating Officer during the course of investigation itself.

After hearing the above submissions, the learned Magistrate ultimately allowed the petition by order dated 29.09.2009, thereby adding the

Petitioner as one of the accused in the said case.

In this revision, the main contention of the learned Counsel appearing for the Petitioner is that the learned Magistrate has failed to consider the

earlier order passed by this Court in Crl.R.C. No. 973 of 2008 wherein, this Court directed the learned Magistrate to consider the question of

impleading the Petitioner as an accused in the light of the settled principles of law laid down by the Hon''ble Supreme Court in several judgments

more particularly in Anil Singh and Anr. v. State of Bihar and Ors. reported in (2008) 1 SCC (Cri) 708 and in Michael Machado and Another Vs.

Central Bureau of Investigation and Another, . The learned Counsel would further submit that the Trial Court has not applied the real test as laid

down in the above judgments that whether there is possibility of the accused being convicted at the conclusion of the trial from out of the materials

available on record viz., evidence recorded.

The learned Additional Public Prosecutor would submit that though it is true that the impugned order does not reflect the strict application of the

above principles laid down by the Hon''ble Supreme Court, on that score, the impugned order does not require any interference. 9.1 have

considered the above submissions.

Before deciding the legality and correctness of the order of the learned Magistrate, let me first analyze the law laid down by the Hon''ble

Supreme Court on this subject. The learned Counsel for the Petitioner placed much reliance on the judgment in Anil Singh and Anr. v. State of

Bihar and Ors. reported in (2008) 1 SCC 708, wherein, in paragraph Nos. 20 and 21, the Hon''ble Supreme Court has held as follows:

The Court''s power, as noticed hereinbefore, is not disputed. The learned Sessions Judge, however, as has been observed by the High Court,

proceeded on a wrong premise in holding that as no charge sheet was filed as against the Appellants by the police the same was not sufficient to

refuse to issue summons. The question, which was necessary to be posted in view of the propositions of law as noticed supra, was as to whether

any case has been made out for exercise of extraordinary jurisdiction by the Court keeping in view the fact as to whether the prosecution would be

able to bring home the charge. If the Court comes to the conclusion having regard to the materials on record, that the prosecution ultimately may

not be able to bring home the charge as against the persons against whom processes were to be issued, it would decline to do so. The Court must

also take into consideration the fact as to whether an appropriate case has been made out for exercise of the extraordinary jurisdiction.

It may be true that the Court at that stage may not enter into the merit of the matter. Its opinion in the nature of things would be a prima facie

one. But, the Court must also consider that the innocent persons may not be prosecuted. The Court is not bound by the opinion of the investigating

officer. It is required to apply the tests on the touchstone of the materials brought on record. A balance is required to be maintained. The Court

must pose unto itself a right question. It is required to scrutinise the materials more closely. A power u/s 319 of the Code of Criminal Procedure is

not to be exercised in a mechanical manner. Only because some evidence has been brought on record, the same by itself may not be a ground to

issue processes.

In Ram Pal Singh and Ors. v. State of Uttar Pradesh and Anr. reported in 2009 (2) SCC Cri Page 326, the Hon''ble Supreme Court in

paragraph Nos. 17, 18 and 19 has held as follows:

The ingredients of Section 319 are unambiguous and indicate that where in the course of inquiry into, or trial of, an offence, 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 he has committed.

All that is required by the Court for invoking its powers u/s 319 Code of Criminal Procedure is to be satisfied that from the evidence adduced

before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused.

It is also clear that the discretion is left to the Court to take a decision on the matter.

In the instant case, although, the Appellants were named in the FIR, they were not named as accused in the charge-sheet during the trial.

However, P.W.I in his evidence, has named the Appellants as persons who were involved in the incident causing the death of Brijesh Kumar Singh

and injuries to Manvender Singh. Despite the above, the trial Court, on two separate occasions, rejected the prayer made by Respondent 2 for

summoning the Appellants herein u/s 319 Code of Criminal Procedure. The High Court, after considering the evidence of P.W.I, Kamlesh Singh,

though it necessary for the Appellants to be summoned.

A perusal of the above Judgments of the Hon''ble Supreme Court would make it very clear that the test to be adopted is whether any case has

been made out for the Court to come to the conclusion, having regard to the materials on record, that the prosecution ultimately may be able to

bring home the charge as against the persons who are sought to be impleaded as accused.

A perusal of the impugned order would go to show that this test has not been applied by the learned Magistrate at all though the learned

Magistrate has referred to the evidences of P.W.I and P.W.2. But curiously the learned Magistrate has also relied on the statements of P. Ws.1

and 2 and other witnesses recorded u/s 161(3) of the Code of Criminal Procedure together with the evidence recorded. This, in my considered

opinion, is not at all correct. The Judicial opinion in this regard is uniform.

Vide Hukamaram and Others Vs. State of Rajasthan,

Gunaram Tanti and Another Vs. State of Assam, and

1998 (4) Cri 87 Panchadia Jay a v. State of Orrissa

As held by the Hon''ble Supreme Court, the lower Court ought to have looked into the evidence of P. Ws.1 and 2 to apply the above test and

to have given finding as to whether there is any possibility for conviction of the Petitioner at the ultimate stage of the trial of the case. Such specific

finding is missing in the impugned order though the conclusion of the learned Magistrate is based on the evidences of P.W.1 and P.W.2 also.

Now, let me look into the evidence of P. Ws.1 and 2. A perusal of the same would clearly go to show that P. Ws.1 and 2 have, in unequivocal

terms, deposed before the Court that the Petitioner also was one of the participants in the crime. If these evidences of P. Ws. 1 and 2 are believed

for any reason, certainly it will only result in conviction. Why the evidences of P. Ws.1 and 2 as against the Petitioner cannot be believed is a

matter for deep appreciation only at the time of trial. For this purpose, the learned Counsel would submit that subsequent to the original statement

recorded u/s 161(3) of the Code of Criminal Procedure, further statements were recorded by the Investigating Officer from these two witnesses

wherein they have stated that the Petitioner was not present at the time of occurrence and he had no role to play. In this regard, I have to state that

the said statements cannot be looked into at this stage. Of course, the Petitioner has got right to use these statements at the time of trial for the

purpose of contradiction u/s 145 of the Evidence Act. Even at that stage, the witnesses have got every right to explain the alleged contradictions.

More so, the contradictions are also to be proved by the Petitioner at the time of trial. Now at this stage, this Court cannot compare the evidence

of P. Ws.1 and 2 with that of their former statements recorded u/s 161(3) of the Code of Criminal Procedure to say that there are contradictions

and therefore, the implication of the Petitioner is false. Such course is unknown to criminal law at this stage.

To repeat, I have to point out that the statement made u/s 161 of the Code of Criminal Procedure can be used only for the purpose of

contradiction and not for any other purpose. If at all the same could be used for yet another purpose, it is only for the purpose of arriving at a

correct conclusion to frame appropriate charge against the accused. Simply because the Petitioner is now implicated as accused, it does not mean

that he has got no remedy to come out of the clutches of the criminal proceedings. On his appearance, he can very well make appropriate

application for discharge at the appropriate stage. He can make use of all the materials available on record for discharge or else, he can wait for

the trial to conclude to come out by means of an acquittal, if the prosecution fails to prove the charges against him.

The learned Counsel appearing for the Petitioner would however, invite this Court to look into two medical certificates and a photograph

relating to the Petitioner. The first certificate is dated 19.01.1994 wherein it is stated that the Petitioner was inpatient in a hospital in Chennai for a

period from 09.01.1994 to 19.01.1994. Another certificate dated 12.02.2010 also shows that he was hospitalised. The photograph of the

Petitioner filed along with the additional typed set of papers also shows that he has lost his right small finger. From these materials, the learned

Counsel would invite this Court to hold that me Petitioner would not have been present at the time of occurrence.

In my considered opinion, plea of alibi cannot be considered at this stage. It is for him to establish such plea of alibi at the time of trial. These

documents which are now filed as typed set cannot be looked into at this stage for any purpose. Therefore, the said argument is rejected.

Though it is true that the impugned order of the learned Magistrate does not satisfy the expected standards, as I have already indicated, for that

matter, the impugned order cannot be set aside so as to remit the matter back to the learned Magistrate for fresh orders as it is requested by the

learned Counsel for the Petitioner. If this Court is satisfied that the materials available by way of evidences of P. Ws.1 and 2 are not at all sufficient

to implead the Petitioner as an accused, certainly this Court would not have any hesitation to set aside the impugned order. When this Court is fully

satisfied that the materials available by way of the evidences of P. Ws.1 and 2 are sufficient for the limited purpose of impleading the Petitioner as

an accused, I am of the firm view that there is no need to remit the petition for fresh orders so as to enable the learned Magistrate to pass a

detailed order by applying the legal principles stated above. Such exercise, in my considered opinion, at this stage, is not at all required.

To put in a nutshell, though the order of the learned Magistrate, for some of the reasons stated in his order cannot be sustained, the ultimate

conclusion arrived at by the learned Magistrate to issue summons to the Petitioner u/s 319 of the Code of Criminal Procedure needs to be

sustained for the reasons that I have recorded supra.

In view of all the above, the revision fails and the same is accordingly dismissed. However, the Petitioner is at liberty to raise all the grounds

which have been raised in this petition and all the other defences available to him either at the time of framing of charge or during trial. The learned

Magistrate is directed to dispose of the case without getting influenced by any of the observations made in this order.