State vs Pasupathy

R. Balasubramanian, J.—This revision is preferred by the State against the Order dated 3.5.1988 in Criminal Miscellaneous Petition No. 56

of 1988 in S.C. No. 235 of 1987 on the file of the Second Additional Sessions Judge, Tirunelveli discharging the ninth accused from that

proceedings exercising the power u/s 227 of the Code of Criminal Procedure.

A few facts are necessary to be stated for disposing this case. S.C. No. 235 of 1987 on the file of the Second Additional Sessions Judge,

Tirunelveli arise out of Crime No. 145 of 1985 on the file of the Ovary Police Station. This Complaint was given by one Chidambaranathan. This

complaint was lodged by him against five accused namely Suyambanandam, Sarkunam, Sekar, Durairaj and Ayyadurai. The sum and substance of

the allegation in the complaint is one Ramasamy Nadar left his garden house in the evening of 8.10.1985 for purchasing vegetables and then he did

not return till 8 a.m. on 9.10.1985. On this allegation, the complaint was lodged stating that the accused mentioned in that complaint and already

referred to above are responsible for his murder. This complaint was registered at 3 p.m. on 9.10.1985 in the said Police Station, as ""Suspicious

Death"". One Ganesan has signed at the foot of the complaint as a witness. Thereafter, the statements of the witnesses had been recorded by the

Investigating Officer u/s 161 of the Code of Criminal Procedure.

Not satisfying with the investigation done at this stage, one Mrs. Yogapathy who is the wife of the present respondent in this case filed a

complaint to the Inspector of Police, Thisayanvilai on 12.10.85 setting out certain more facts regarding the deceased Ramasamy Nadar. On

13.10.1985, the statement of Ganesan, who had already signed as a witness at the foot of the complaint in Crime No. 145 of 1985 on the file of

the Ovary Police Station was recorded. On the basis of the said statement of Ganesan, the Investigating Officer impleaded accused 6 to 9 also in

the said Crime number and filed a final report before the Court. After committal against all the 9 accused, the matter was taken up as S.C. No.

235 of 1987 on the file of the II Additional Sessions Judge, Tirunelveli.

Accused 8 and 9 filed an application before the learned II Additional Sessions Judge u/s 227 of the Code of Criminal Procedure stating that the

materials available in this case are not sufficient to proceed against them and on that ground prayed for discharge. The learned Sessions Judge,

after hearing the arguments of the counsel for accused 8 and 9 as well as the Public Prosecutor, who opposed the petition, held that the materials

available in this case make out a prima facie case to proceed against the eighth accused and dismissed the petition. As against the ninth accused,

the learned Sessions Judge had applied his mind to the entire records available in this case, that is, records produced by the Police along with the

final report as well as the records produced by ninth accused and came to the conclusion that the materials disclosed by the prosecution and the

defence, are not sufficient enough to proceed further as against the ninth accused and thus discharged him. This Order is challenged in this action.

I heard Mr. Babu Muthu Meeran, learned Government Advocate and Mr. N.T. Vanamamalai, learned Senior Counsel for the sole Respondent,

who is the ninth accused in the Sessions case. Mr. Babu Muthu Meeran, learned Government Advocate submitted that the learned Sessions Judge,

while passing the Order of discharge, has exceeded his jurisdiction u/s 227 of Code of Criminal Procedure and therefore the impugned Order is

liable to be set aside. He further submitted that the learned Sessions Judge had committed an error in analysing the evidence on record placed

before him by the prosecution to find out whether it would end in a conviction or not and therefore his entire approach is erroneous. Lastly, he

contended that it is not open to the Court exercising power u/s 227 of Code of Criminal Procedure to look into the documents produced by the

defence at that stage because it is too early to go into those documents. According to him, the defence documents are subject to cross-examination

by the investigating agency and therefore the defence documents should necessarily be excluded from consideration at the stage of exercising

power u/s 227 of the Code of Criminal Procedure.

Mr. N.T. Vanamamalai, learned Senior Counsel appearing for Mr. S. Mahimairaj, submitted that the impugned order does not suffer from any

illegality or infirmity and the approach of the learned Sessions Judge was proper and correct. According to him, the only material available in this

case against the ninth accused is the statement of Ganesan and if that statement is found to be suspicious and the materials available in this case

would ultimately create a serious doubt in the evidence that will be let in, then the Court would be justified in taking that aspect into account to

come to a decision whether the trial is necessary or not. The learned Senior Counsel also submitted that the power u/s 227 of Code of Criminal

Procedure to be exercised by the Court of Sessions is not an empty formality but it is a meaningful one. The Court of Sessions is not under a legal

obligation to just take-up every case put up before it for trial. On the other hand, the learned Senior Counsel submitted that Section 227 of the

Code of Criminal Procedure enjoins a duty upon the Court to conduct an enquiry at that stage though it may not be a detailed enquiry as the one to

be done by the Court at the end of the trial.

I have carefully considered the rival submissions made by the respective counsel and went through the Order passed by the learned Sessions

Judge and the reasons given by him. The complaint in Crime No. 145 of 1985 on the file of Ovary Police Station had beer, given by one

Chidambaranathan, who is none else than the close cousin of the deceased Ramasamy Nadar. In this complaint, there is no whisper about the ninth

accused at all. It must be noticed here at this stage that at the foot of this complaint, Ganesan, whose statement u/s 161 of the Code of Criminal

Procedure was recorded on 13.10.1985, had signed as a witness, acknowledging thereby that the averments contained in the complaint given by

Chidambaranathan were also known to him. If the impleading of the ninth accused also as an accused is decided in the background of all the

allegations contained in the complaint dated 9.10.1985 in Crime No. 145 of 1985 and the statement dated 13.10.1985 of Ganesan recorded u/s

161 of Code of Criminal Procedure, then it is possible for the defence Counsel to confront the said Ganesan, if he ultimately gives evidence in

Court in consonance with his statement u/s 161 of the Code of Criminal Procedure as to why he had not mentioned about the role played by the

ninth accused in Ex.P.1 or as to why he did not inform those facts to Chidambaranathan who laid the complaint itself. A reading of the statement of

Ganesan dated 13.10.1985 recorded u/s 161 of Code of Criminal Procedure reveals a number of details regarding the conspiracy that was stated

to have taken place on 5.10.1985 in the house of the ninth accused. If so much of details regarding the conspiracy in which a number of persons

have participated was very well known to Ganesan, then one, should naturally expect him to disclose that information directly to the police on the

date of giving the complaint or disclosed the same to Chidambaranathan who laid the complaint on 9.10.1985 in Crime No. 145 of 1985 before

the police. Surprisingly he has not done it and the reasons are obvious.

While passing the impugned order of discharge, the learned Sessions Judge had taken this aspect into account to decide whether the trial should

be preceded further even against the ninth accused also. In doing so, the learned Sessions Judge had gone through the statements of all the other

witnesses examined by the police u/s 161 of the Code of Criminal Procedure and found that in none of those statements, the ninth accused is

implicated. Besides, the learned Sessions Judge also looked into the document produced by the ninth accused showing that on 5.10.1985 when

the conspiracy was stated to have taken place, he was away on bandobust duty alongwith the higher officials. This defence document along with

the statements of all the other witnesses recorded u/s 161 of the Code of Criminal Procedure where there is no mention about the ninth accused at

all or the conspiracy, had gone into the mind of the learned Sessions Judge to pass the impugned order of discharge.

The arguments of the learned Government Advocate on the criminal side is that the enquiry to be conducted by the learned Sessions Judge u/s

227 of the Code of Criminal Procedure is a very limited one and he cannot at that stage go into the truth or otherwise of the materials placed

against the ninth accused is answered by the learned Senior Counsel Mr. N.T. Vanamamalai by citing the Judgment of the Supreme Court in Satish

Mehra Vs. Delhi Administration and Another, . A reading of the judgment of the Supreme Court makes it patently clear that the arguments of the

learned Government Advocate cannot stand a minute''s scrutiny at the hands of this Court. In that judgment, the Supreme Court had held as

follows:

(a) When the Judge is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the Court should not be wasted

for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future day.

(b) If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or

stop the proceedings at the stage of Section 227 of the Code of Criminal Procedure itself.

(c) Sessions Judge would be within his power to consider even materials which the accused may produce at the stage contemplated in Section 227

of the Code of Criminal Procedure.

It is also held that the object of providing such an opportunity as envisaged in Section 227 of the Code is to enable the Court to decide whether it

is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and save much human efforts and cost. If the

materials produced by the accused even at the early stage would clinch the issue, why should the Court shut it out saying that such documents need

be produced only after wasting a lot more time in the name of trial proceedings.

In the light of the judgment of the Supreme Court referred to above, if the Order impugned in this revision is decided, then it is clear that the

learned Sessions Judge had not committed any illegality or infirmity in passing the Order. The learned Sessions Judge applied his mind to the

materials available and found that the materials do not disclose the involvement of the ninth accused in this case. The learned Sessions Judge, after

noticing that the statements of all the witnesses recorded u/s 161 of the Code of Criminal Procedure except that of Ganesan, did not implicate the

ninth accused, applied his mind to the statement of Ganesan in the context of the other materials available in this case. In such analysis he came to

the right conclusion that Ganesan''s statement on the face of it cannot be accepted especially in view of the fact that he had signed as a witness at

the foot of Ex.P.1 thereby acknowledging that he is aware of the allegation made in the complaint. If the ninth accused is also put up for trial, it is

common knowledge that any prudent defence counsel would confront Ganesan, when he gets into the witness box about his failure to mention the

ninth accused''s involvements in the offence in Ex.P. 1 or his failure to inform at least Chidambaranathan, who gave the complaint, about this. Even

the Investigating Officer, when he gets into the box is likely to be examined on this aspect. Therefore, I feel that no useful purpose would be served

if the ninth accused is also forced to face the trial and ultimately gets an acquittal. I am fully satisfied from the materials available in this case and

brought up before me by way of a typed set of papers, that the reasons given by the learned Sessions Judge cannot be said to be erroneous and

illegal. For the reasons stated above, I am of the opinion that the order impugned in this revision does not call for any interference at the hands of

this Court.

Therefore, I hold that there are no merits in this revision and it deserves to be dismissed. Accordingly, the revision is dismissed. The Sessions

case is of the year 1987. It has been pending for almost 10 years. Therefore, the learned Sessions Judge, Tiruneveli is directed to take up this case

immediately, fix up an early date for the disposal 15 of the same and proceed with the trial day-today and send a report about the completion of

the same to this Court.