Seeni Konar and another vs State by Inspector of Police, Masarpatti P.S. Tuticorin Dt. and another

Petitioners/proposed accused in S.C.No.34 of 1998 on the file of Principal Sessions Court, Tuticorin have preferred the revision aggrieved

against the orders passed in Crl.M.P.No.3616 of 2000 dated 30.10.2000.

The case in brief is as follows:

The first respondent after completing investigation, laid a charge against the second respondent/accused in S.C. No.34 of 1998 for an offence u/s

302, IPC and it is pending on the file of Principal Sessions Court, Tulicorin. P.W.1 Gurunathan is the first informant in Crime No.35 of 1997 and

on the basis of the complaint only, the first respondent investigated the case and filed the charge sheet. P.W.1 was examined as a witness in the

case and on the basis of the evidence, he mentioned the names of the petitioners/proposed accused and stated that they were also involved in the

commission of murder of deceased Adinaryanan on 23.4.1997. Thereafter, the first respondent filed a petition u/s 319 of the Code of Criminal

Procedure to implead the proposed petitioners also as accused in the case. The second respondent filed a counter and opposed the application

and thereafter, after hearing the parties, the learned Sessions Judge allowed the application filed by the prosecution and ordered issue of summons

to the petitioners herein, who were cited as witness No.15 and 16 in the charge sheet. Aggrieved by the said order only, the petitioners/proposed

accused have come forward with the present revision petition.

Heard the learned counsel of both sides.

The point that arises for consideration is whether the order passed by the court below is proper and correct?

Point: There is no dispute that the second respondent is facing prosecution for alleged offence u/s 302, IPC and P.W.1 Gurunathan is the

informant in the case. The evidence of P.W.1 was recorded and in the course of chief examination, P.W.1 mentioned the names of the petitioners

herein also and they are also involved in the commission of murder of deceased Adinarayanan on 23.4.1997. Based on the evidence of P.W.1 in

the chief examination, learned Public Prosecutor filed an application u/s 319 of the Code of Criminal Procedure to stop further proceedings in the

case until the other two accused also appear in the court.

Learned counsel for the petitioners contended that the court below has allowed the application u/s 319 of the Code of Criminal Procedure

without proper application of mind. P.W.1 is the first informant in Crime No.35 of 1997, wherein the complaint is a written one and the registration

of first information report was duly attested by Thalayari named Karuppasamy who also accompanied P.W.1. only during the course of evidence,

now P.W.1 is mentioning the names of the petitioners also involved in the crime, Perusal of the first information report and the subsequent 161,

Cr.P.C. statement recorded by the first respondent will clearly reveal that the petitioners were falsely implicated in the crime with ulterior motive.

Learned Public Prosecutor ought to have treated P.W.1 as hostile witness and proceeded with the trial in accordance with all. The finding of the

trial court has to be set aside in view of the recent decision of the Apex Court relating to Section 319 of the Criminal Procedure Code.

The alleged occurrence had taken place on 23.4.1997 and on the complaint of P.W.1, first information report has been registered. Admittedly,

neither in the first information report nor in the 161 Cr.P.C, statement of P.W. 1 or in any of the documents filed into the court, the involvement of

these petitioners is not mentioned. P.W.1 has given a written complaint before the police and it was attested by the Thalayari and he has not

mentioned about the involvement of the petitioners in the commission of the offence. Now, P.W.1 in the course of evidence stated that the

Inspector of Police Mr. Karpagavinayagam threatened him to write like this and so, he had written like that. It is pertinent to point out that even

assuming that the present version of P.W.1 is true, there is no explanation as to why P.W.1 has not complained about the alleged threatening by

the Inspector of Police for the last three years. If really Ex.P.1 has been drafted on the compulsion or advice of the Inspector of Police, nothing

prevented P.W.1 to report the same to the higher authorities or to the concerned courts. Only for the first time on 16.10.2000, he had disclosed

the names of these two accused in the course of evidence. In fact, P.W.1 also admitted in the course of evidence that even on the date of giving the

complaint, he knew fully well that the names of these two petitioners are not in the complaint. This admission of P.W.1 and the subsequent inaction

on his part for a period of three years if taken together would only lead to the irresistible conclusion that the petitioners have been now implicated

for obvious reasons.

Learned counsel for the petitioners relied on the decision reported in Micheal Machado v. Central Bureau of Investigation, 2000 MLJ 481

wherein it was stated as follows:

The basic requirements for invoking Sec. 319 of the Code of Criminal Procedure is that it should appear to the court from the evidence collected

during trial or in the inquiry that some other person who is not arraigned as an accused in that case has committed an offence for which that person

could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt from the evidence about the

involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected

regarding two aspects. The court must have reasonable satisfaction about the evidence of the witness that the other person could be tried along

with the already arraigned accused. The power given to the court is discretionary and the court must keep in mind the stage at which trial has

reached already, quantum of evidence collected till then, and amount of time spent by court for collecting such evidence.

I am of the view that the principle in this decision can be made applicable to the case on hand. Although P.W. 1 alone has been examine in the

case, if there is sufficient material to, proceed further against the petitioners, then there is no difficulty in impleading them as accused. As adverted

to neither in the first information report nor in the 161 Cr.P.C. statement, P.W.1 had failed to mention the names of these two persons a early as

1997. The present explanation put forward by P.W.1 putting the blame on the Inspector of Police cannot be accepted and acted upon. Under the

circumstances, I am of the view that the order passed by the court below is not proper and correct and based upon the evidence of P.W.1, the

prosecution need not have filed the application invoking Section 319 of Criminal Procedure Code. The Court should have waited till at least

examination of the other eye witnesses in the case and thereafter, if it was felt necessary, the Court could have passed appropriate orders and the

mode adopted by the prosecution as well as by the court is only hasty . Under the circumstance, I am of the view that the order passed by the

court below is liable to be set aside.

For the reasons stated above, the revision petition is allowed and the order passed by the court below dated 30.10.2000 is set aside and

Cr.M.P.No.3616 of 2000 is dismissed. After the completion of the evidence of eye witnesses, if the court feels that the petitioners also might have

involved in the commission of offence, it is open to the court below to pass appropriate orders in accordance with law. Consequently,

Crl.M.P.No.8462 of 2000 is closed.