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Judgment
S.M. Sidickk, J.—This Criminal Revision Case is preferred by the First accused to set aside the order of the Judicial Magistrate, Srivaikuntam dated 4.8.1997 passed in Crl.M.P. No. 2959 of 1997.
The Revision Petitioner, who is the first accused in this case, filed a petition before the Judicial Magistrate, Srivaikuntam in Crl.M.P. No. 2959 of 1997 under S. 173(5) and (8) read with S. 239 of Cr.P.C. to discharge him from the case in C.C. No. 159/97 on the file of Judicial Magistrate, Srivaikuntam, and on consideration of the final report of the police and the documents sent with it and upon examination of the same and upon hearing both sides, the learned Judicial Magistrate, Srivaikuntam passed an elaborate order by stating that the charge against the first accused is not groundless, and prima facie there are grounds to proceed as against the first accused, and so the first accused cannot be discharged. Aggrieved against the said order dated 4.8.1997 in Crl.M.P. No. 2959 of 1997 in C.C. No. 159 of 1997, the first accused preferred this Criminal Revision case.
The prosecution case as set out in the Final Report of the police is as follows:- One Subbulakshmi wife of Subburaman of Tirunelveli was the victim of alleged rape committed by the 1st accused on 7.6.1984 which was pending trial against him on the file of the Assistant Sessions Judge, Tenkasi in S.C. No. 407 of 1993. It was brought to the notice of the High Court at Madras that the 1st accused, who was kept in Central Prison, Palayamkottai from 16.6.1996 on the execution of NBW issued against him, came out on bail on 16.7.1996, by producing a bogus High Court bail order in Crl.O.P. No. 4915 of 1996 dated 15.7.1996 before the Judicial Magistrate, Srivaikuntam. It was taken up by the High Court in Crl.O.P. No. 5968 of 1996 and Justice N. Arumugham delivered an order on 29.8.1996 and directed the Registrar of High Court, Chennai to lodge a complaint with the Crime Branch CID, Chennai against 1st accused and others for the offences under Ss. 120-B, 468, 471 and 476 of I.P.C. Accordingly the Additional Registrar (Judicial), High Court lodged a complaint with the Crime Branch CID, Chennai on 2.9.1996, which was registered in CB CID Madras Crime No. 31/96, and subsequently the case was transferred to Chidambaranar CB CID Unit on the point of jurisdiction and the same was registered in CNR CB CID Crime No. 1/96 and me investigation was taken up as per orders. The 1st accused joined in Tamilnadu Police as Sub-Inspector in the year 1962 and he was working as Inspector of Police, Law and Order Nanguneri, Tirunelveli district during the period from 1982 to 10.6.1984. He was promoted as Deputy Superintendent of Police on 9.11.1988 and was working in Protection of Civil Rights Wing of Madurai Division at Madurai during the period from 25.3.1991 to 16.6.1996. The 2nd accused R.M. Rajesh is the elder son of the 1st accused and he is a post graduate in Zoology and he is unemployed staying with his father. The 3rd accused Asirkoil Pitchai claimed himself to be working as an advocate''s Clerk in various Courts in Tirunelveli District. The 4th accused Sundanthiraraj is working as Office Assistant at Cathedral Higher Secondary School, Palayamkottai and he was doing business as a rubber-stamp maker and photograph framer in me name of Stella a frame Works at No. 24-A South Bazaar Street, Palayamkottai. The 5th accused Subramanian is working as a job Typist at room No. 43, Nellai Lodge, Tirunelveli junction, having his own English and Tamil Typewriters. The 6th accused Perumal is working as a Record Clerk in the Project, Planning and Design Division of P.W. D. at 105, Trivandram Road, Tirunelveli. The 7th accused is an Advocate practising in the Courts at Srivaikuntam and Tirunelveli from 1992. When me first accused was working as Inspector of Police, Law and Order, Nanguneri during the period from 1982 to 10.6.1984, on the evening of 7.6.1984 at his office cum residence at Nanguneri, the first accused allegedly committed offences punishable under Ss. 376, 201 and 341 of I.P.C. in respect of one Subbulakshmi. On the following day a complaint was preferred by the said Subbulakshmi against the 1st accused in respect of the said occurrence to the Superintendent of Police, Tirunelveli which has been referred to for enquiry and report to Revenue Divisional Officer, Cheranmahadevi. The Revenue Divisional officer, Cheranmahadevi conducted an enquiry and after completing the enquiry he filed a report. There was a protracted legal battle as a result of which the said report of the then Revenue Divisional Officer was quashed by the High Court, Chennai, and a fresh enquiry was ordered which was also found to have been challenged. The second report of the Revenue Divisional Officer had been forwarded to the Government and with necessary sanction, the succeeding Revenue Divisional Officer on the third occasion pursuant to the enquiry conducted filed a private complaint before the Judicial Magistrate, Nanguneri under S. 200 of the Code of Criminal Procedure against 1st accused for the offences punishable under Ss. 376, 201 and 341 of I.P.C, and cognizance of the said offences was taken by the said learned Magistrate before whom the 1st accused appeared thereafter. It was committed with the case records and relevant papers and accordingly the First Assistant Sessions Judge, Tirunelveli took the same on his file, but however it was later transferred to the file of the Assistant Sessions Judge, Tenkasi on administrative grounds. Further protracted legal battle was indulged at the trial Court as well as in the High Court after the examination of the prosecution witnesses commenced and ultimately the 1st accused was questioned by the learned trial Judge under S. 313 of Cr.P.C. Arguments on behalf of the prosecution as well as 1st accused were advanced and heard fully by the learned trial Judge and the case consequently was posted to 12.3.1996 for the pronouncement of Judgment. On 12.3.1996 the 1st accused did not appear before the learned trial Judge, who after dismissing a petition under S. 317 Cr.P.C. filed by the counsel for the 1st accused in Crl.M.P. No. 246 of 1996 dated 12.3.1996, issued a Non-Bailable Warrant.
Thereafter the 1st accused approached the High Court, Chennai to tide over the situation and filed a petition in Crl.M.P. No. 233 of 1996 and the High Court after hearing both the parties passed an order on 29.3.1996 with the direction to the 1st accused to appear before the trial Court on 8.4.1996. The 1st accused in pursuance of the direction of the High Court appeared before the trial Court on 8.4.1996 with his advocate, who filed three applications before the learned trial Judge. All the three petitions filed on behalf of the 1st accused were dismissed by the learned trial Judge. The Non-Bailable warrant was executed subsequently and accordingly the 1st accused was arrested and remanded to Judicial custody and consequently on 16.6.1996 the learned Assistant Sessions Judge at Tenkasi remanded the 1st accused to Central Prison, Palayamkottai and thus the 1st accused was in judicial custody at Central Prison, Palayamkottai from 16.6.1996. Between 9.7.1996 and 16.7.1996 Al to A7 at Palayamkottai Tenkasi, Tirunelveli, Srivaikuntam, Tiruchendur and other places in Tamilnadu were parties to a Criminal conspiracy having agreed to do or cause to be done illegal acts, to wit, to forge an order of bail, purporting to have been issued by the High Court, Chennai ordering the release on bail of the 1st accused on prescribed sureties fabricating such a forged bail order by typing the relevant portion of the false bail order as if they were typed by the concerned officials of the High Court by counter-feiting and affixing upon such forged bail order with rubber stamp impression purporting to be official seal of the High Court to commit the said forgery intending that the said forged bail order shall be used for the purpose of cheating the jurisdictional Magistrate competent to issue the order of release of the 1st accused to the concerned Jail authorities, to use the said forged bail order fraudulently and dishonestly as genuine, as a result of which the 1st accused got released from the Central Prison, Palayamkottai on 16.7.1996. Therefore Al to A7 appear to have committed offences punishable under S. 120B read with Ss. 466, 468, 471, 476, 420 and 109 of I.P.C. A1 and A2 appears to have committed offences punishable under Ss. 466 read with 109 I.P.C., 468 read with 109, I.P.C., 476 read with 109, 471 read with 466 and 109 and 420 read with 109 I.P.C. A3 appears to have committed offences punishable under Ss. 466, 468, 471 read with 466 and 109 I.P.C. 476 read with 109 I.P.C. A4 appears to have committed offences punishable under Ss. 476, 466 read with 109 I.P.C., 468 read with 109 I.P.C, 471 read with 466 and 109, I.P.C. and 420 read with 109 IPC. A5 appears to have committed offences punishable under Ss. 466, 468, 471 read with 466 and 109, I.P.C. and 420 read with 109, I.P.C. A6 appears to have committed offences punishable under Ss. 466, 468, 471 read with 466 and 109, IPC and 420 read with 109 of I.P.C. A7 appears to have committed offences punishable under Ss. 471 read with 468 and 420, I.P.C.
After the filing of the Final Report or charge sheet by the police, the police, the Revisional Petitioner, who is the first accused in this case, has filed an application before the Judicial Magistrate, Srivaikuntam to discharge him from the above case, under S. 173 (5) and (8) read with 239 of Cr.P.C., which was dismissed by the Magistrate. Aggrieved against the same the present Revision is filed.
On hearing the Learned Counsel for the Revisional Petitioner, the point that arises for determination is as to whether the order passed by the learned Judicial Magistrate Srivaikuntam dated 4.8.1997 in Crl.M.P. No. 2959 of 1997 in C.C. No. 159 of 1997 is legal and proper and to what relief the Revision Petitioner is entitled.
Point:- S. 173(5) of Cr.P.C. states that where a final Report is made ready after the completion of investigation, the Police officer shall forward the same to the Magistrate along with the Report all the documents on which the prosecution proposes to rely and the statements recorded under S. 161 of Cr.P.C. of all the persons whom the prosecution proposes to examine as its witnesses. It is only procedural law for filing the charge sheet. Therefore no relief can be granted under S. 173(5) of Cr.P.C. to the Revision Petitioner.
S. 173(8) of Cr.P.C. states that nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report has been forwarded by the Police to the Magistrate. In the present case there is no sufficient valid reason set out in the grounds to make further investigation in this case and S. 173(8) of Cr.P.C. has no application to the facts of the present case.
So the only provision of law that will have any bearing in this Revision case is S. 239 of Cr.P.C., which says that if upon considering the Final Report of the police and the documents sent along with it under S. 173 and after hearing both sides, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. The accused is entitled to be discharged under S. 239 of Cr.P.C. when there is no material at all on the basis of which it could be said that there is a prima facie case against him and the charges against the accused appear to be groundless. The order of discharge should not be very detailed, as a full-fledged Judgment of acquittal as if rendered on appreciation of evidence. All that is required under S. 239 Cr.P.C. is to see whether a prima facie case regarding the commission of certain offences is made out. The question whether the charges will eventually stand proved or not can be determined only after the evidence is recorded in the case. This is not me stage where the Court can go into the details or the pros and cons of the matter. This was obviously because this is not the stage when the Court could enter into the meticulous consideration of the evidence and materials. But it has to evaluate the materials on record to come to the conclusion that the charge against the accused is groundless. After perusing the statements of witnesses recorded under S. 161 Cr.P.C. if the Court was unable to find that the charges could be said to be groundless, then this is not a case which calls for interference with the order of the Magistrate. These are the legal principles relating to the provision of law contained in S. 239 of Cr.P.C. Bearing these legal principles, let us consider as to whether the charges against the 1st accused in this case are groundless.
Along with the final Report the police have filed a list of witnesses containing 28 names. Of them the statement of witnesses by name Subramanian, Paneerselvam Sudalaimuthu, Subbulakshmi, Subbaraman are relevant. A perusal of the copies of me statements filed along with the typed-set of papers with this Revision case and also the copy of the affidavit of Subbaraman will show prima facie that the charges against the 1st accused are not groundless and me accused has been implicated in the offences with which he has been charged in this case. In particular, the statement of Subbaraman along with the copy of me affidavit filed in the Contempt Application No. 311 of 1996 before the High Court, Madras will prima facie show that there are materials available on record to try the 1st accused for the offences with which he is charged, and the charges against the 1st accused are not groundless. At the initial stage of framing of a charge if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no ground for proceeding against the accused. In assessing this fact it is not necessary for the Court to enter into the weighing and balancing of the statements of witnesses and probabilities, but the Court has to evaluate the materials to find out if the facts emerging therefrom taken at their face value stabilize the ingredients constituting an Offence with which the accused is charged. Where the materials placed before the Court disclose grave suspicions against the accused, the Court will be fully justified in framing a charge and proceeding with the trial. The standard of test, proof and Judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of discharge or framing of charge under Ss. 239 and 240 of Cr.P.C. At this stage, even a strong suspicion founded upon materials like the statement of witnesses before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence. It cannot be expected even at this initial stage to accept all that the prosecution witnesses stated as gospel truth if it is opposed to common sense or the broad probabilities of the case. The Court is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged Offence. These are the well settled proposition of law as laid down by the Supreme Court in the decisions reported in State of Bihar Vs. Ramesh Singh, Union of India (UOI) Vs. Prafulla Kumar Samal and Another, ,, Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, , Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, and AIR 1996 SC 744 . A perusal of the statements of witnesses will show that there is a prima facie case against the Revision Petitioner.
On consideration of the materials on record in this case. I am satisfied that the charges against the 1st accused are not groundless and the order passed by the learned Judicial Magistrate, Srivaikuntam in Crl.M.P. No. 2959 of 1997 in C.C. No. 159 of 1997 on 4.8.1997 is legal and proper, and it does not call for any interference and the Revision petitioner/1st accused cannot be discharged from the case in S.C. No. 159 of 1997 as me charges against him are not groundless, and so I hold that the petitioner is not entitled to any relief in this Revision Case and hence this Criminal Revision Case has to be dismissed and consequently I answer this point as against the petitioner/1st accused.
In the result the Criminal revision case is dismissed and the order passed by the learned Judicial Magistrate, Srivaikuntam in Crl.M.P. No. 2959 of 1997 in C.C. No. 159 of 1997 dated 4.8.1997 is confirmed. Consequently the stay petition in Crl.M.P. No. 4022/97 is also dismissed.