Muthaiah v. The Inspector Of Police
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 18.08.2021
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI Crl.RC(MD)No.359 of 2021 and Crl.MP(MD)Nos.3605 and 3607 of 2021 Muthaiah : Petitioner/10th Accused Vs.
The State by The Inspector of Police, Sempatti Police Station, Dindigul District.
: Respondent/Complainant Prayer: Criminal Revision filed under sections 397 and 401 of the Code of the Criminal Procedure, against the docket order, dated 23.12.2020 in SC No.131 of 2018 on the file of the Additional District Court, Dindigul, arraying the petitioner as 10th accused under section 319 of the Criminal Procedure Code. For Petitioner : Mr.D.Venkatesh For Respondent : Mr.RMS.Sethuraman Standing for State (Crl. Side)
O R D E R
This Criminal Revision is filed against the docket order, dated 23.12.2020 in SC No.131 of 2018 on the file of the Additional District Court, Dindigul, arraying the petitioner as 10th accused under section 319 of the Criminal Procedure Code. 2.It is seen from the records that on the complaint given by one Athiveera Pandiyan, on 07.09.2015, the respondent police registered a case in Crime No.294 of 2015 for the offence punishable under sections 147, 148, 341, 324 and 307 IPC and filed a final report as against 9 persons for the offence under sections 147, 148, 341 and 302 r/w 149 IPC before the Judicial Magistrate No.II, Dindigul. After committal proceedings, the case was taken on file in SC No.131 of 2018 on the file of the Additional District Court, Dindigul. On 23.12.
2020, when the case stood posted for framing of charges, the learned Judge based on FIR and the statement of witnesses, arrayed the petitioner as 10th accused by invoking section 319 of Criminal Procedure Code. Challenging the same, the petitioner is before this court. 3.Heard the learned counsel appearing on either side and perused the materials available on record.
4.The main contention raised on the side of the
petitioner/A10 is that it is settled principle of law that before arraying a person as an accused in the proceedings under section 319 of Cr.P.C, notice has to be issued and an opportunity of hearing has to be provided to the proposed person before passing any adverse order and in this case, the petitioner cannot be added as an accused before commencement of the trial and the trial court ordered to implead this petitioner as A10, at the stage of framing charges and prays that the Criminal Revision has to be allowed. In support of his contention, the learned counsel appearing for the petitioner/A10 submitted the following decisions:- (1)2006 CRI.L.J 2366(1) (Lok Ram Vs. Nihal Singh and another;
(2)2014 (1) MWN (Cr.) 242 (P.Raju and another Vs. State rep. by its Deputy Superintendent of Police CBI, Economic Offences Wing, Chennai).
5.On the other hand, the learned Standing Counsel appearing for the respondent/State submitted that the trial court after considering the relevant documents, has added the petitioner as A10 and posted the case for framing charges and prays for dismissal of the Criminal Revision.
6.In this case, at the time of FIR, the name of the petitioner/A10 was stated. But at the time of filing final report, the name of the petitioner/A10 was not mentioned in the final report.
7.At this juncture, it is pertinent to refer the decision reported in 2006 CRI.L.J 2366(1) (Lok Ram Vs. Nihal Singh and another), wherein it has been held in para 11 to 13 as follows:- "11.On a careful reading of Sec. 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge sheet or the case diary do not
constitute evidence. Of course, as evident from the decision reported in Sohan Lal and others v. State of Rajasthan, (AIR 1990 SC 2158) the position of an accused who has been discharged stands on a different footing.
12.Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it. If it is satisfied that any person other than accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court.
Under Sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub- section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.
13.It is to be noted that the trial court rejected the application only on the ground that the complainant was an interested witness and therefore, sufficient ground did not exist to take action against the accused persons. As noted above though the power is an extra-ordinary and is used only if compelling reasons exist; the factor which weighed is that the trial court does not appear to be relevant and, therefore, the High Court has rightly interfered in the matter. The impugned judgment does not suffer from any infirmity. However, we make it clear that we have not expressed any opinion on the merits of the case. Since the matter is pending long the trial court is requested to complete the trial as early as possible."
8.On careful perusal of the above decision, it was categorically stated that only on perusal of the evidence, the
court can implead the person, who was added as accused in the FIR. In this case, it is an admitted fact that no evidence was recorded. The trial court, at the time of framing charges, suo moto impleaded the petitioner as 10th Accused. Further, no notice was given to the petitioner/A10 to implead him and the trial court impleaded the petitioner/A10 not on the basis of the evidence. 9.Patently, the impugned order passed by the trial court is erroneous. The impugned order under section 319 of Cr.P.C has been passed not on the evidence available on record. This is against the mandate contained in Section 319 of Cr.P.C. In such view of the matter, the impugned order passed by the trial court cannot be allowed to sustain.
10.In the result, this Criminal Revision is allowed. The docket order, dated 23.12.2020 passed in SC No.131 of 2018 by the Additional District Court, Dindigul, arraying the petitioner as A10 is set aside. Consequently connected Miscellaneous Petitions are closed.
Sd/- Assistant Registrar (CS II) // True Copy // / /2021 Sub Assistant Registrar(CS) er Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To, 1.The Additional District Judge, Dindigul.
2.The Inspector of Police, Sempatti Police Station, Dindigul District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Crl.RC(MD)No.359 of 2021 18.08.2021 SB(07.09.2021) 4P 4C