The petition is filed under Section 482 Cr.P.C. to set aside the order
passed in Crl.M.P.No.2863(a) of 2007 in C.C.No.89 of 2006 on the file of the
learned Judicial Magistrate No.1, Sivagangai dated 14.12.2007.
2.The petitioner is belonging to Scheduled Caste community has married a
backward community women. Citing this, the petitioner family was not allowed to
celebrate Pongal festival in the Marakathoor Village, which was override by him
and his sister's husband Arumugam and due to some dispute between the said
Arumugam and the 2nd respondent, a case was registered in Crime No.89 of 2006.
The 2nd respondent was the de facto complainant who falsely implicated the
petitioner's name in the said case.
3.However, after investigation, the first respondent removed the
petitioner's name and the case was taken on file by the learned Judicial
Magistrate No.1, Sivagangai in C.C.No.89 of 2006. The 2nd respondent with an
intention to victimize the petitioner and his wife, has deposed before the
learned Judicial Magistrate, attributing certain allegations and on that basis,
the learned Judicial Magistrate had passed an order including the name of the
petitioner by his order dated 14.12.2007. The said order of the learned
Judicial Magistrate is not legal. Without applying his mind the learned
Judicial Magistrate has issued summons to the petitioner. Therefore, the
petitioner has come forward with this application for the relief as stated
supra.
4.The learned counsel for the petitioner would submit that originally a
case was registered against one Arumugam and Malaichamy in Crime No.29 of 2006,
however, a petition in Crl.M.P.No.2863(a) of 2007 was filed by the de facto
complainant, as P.W1 in his chief examination would implicate the petitioner
and his wife and that they are arrayed as accused in the criminal case and the
learned Judicial Magistrate, without applying his mind had included the
petitioner as accused in the said criminal case and issued summons. The learned
counsel further pointed out that there is no materials available against the
petitioner in the investigation and simply because of the deposition of the
P.W1, the petitioner has been implicated, which has to be set aside.
5.Heard the learned counsel for the petitioner and the learned Government
Advocate (Crl.side) for the 1st respondent.
6.The case has been registered in Crime No.29 of 2006 by the Sub Inspector
of Police, Kalayar Kovil, Sivagangai District on a complaint given by the 2nd
respondent and on that basis a case has been registered against one Arumugam and
Malaichamy and after investigation charge-sheet has been filed and the same has
been taken on file in C.C.No.89 of 2006 by the learned Judicial Magistrate No.1,
Sivagangai. A petition under Section 319(1) Cr.P.C. has been filed by the 2nd
respondent to include two more persons viz., Balakrishnan and Banumathy as co-
accused in the case based on the chief examination of P.W1, who implicated the
petitioner and his wife as accused. After a brief enquiry in that application,
the learned Judicial Magistrate found that the de facto complainant has already
mentioned the name of the petitioner in his complaint and in the chief
examination also P.W.1 would state that the said Balakrishnan and his wife have
criminally intimidated the de facto complainant and therefore, the learned
Judicial Magistrate has allowed that application and issued summon to the
petitioner. However, the prayer to include Banumathi has been negatived. The
said Balakrishnan is before us seeking the above relief.
7.The point for consideration is whether the learned Judicial Magistrate
is right in allowing the petition filed under Section 319(1) Cr.P.C. Based on
the subsequent statement in the chief examination of P.W1?.
8.Section 319(1) Cr.P.C. reads as follows:
319.Power to proceed against other persons appearing to be guilty of offence-
(1)Where, in the course of any 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 which he appears to have
committed.
9.In a decision of the Supreme Court reported in 2000 CRI.L.J. 1706
(Michael Machado and another Vs. Central Bureau of Investigation and another),
the Supreme Court has held as follows:
"The Court must have reasonable satisfaction from the evidence already collected
regarding two aspects while invoking power under S.319 to proceed against other
persons appearing to be guilty of offence. First is that the other person has
committed an offence. Second is that for such offence that other person could
as well be tried along with the already arraigned accused. But even then, what
is conferred on the Court is only a discretion as could be discerned from the
words "the Court may proceed against such person". The discretionary power so
conferred should be exercised only to achieve criminal justice. It is not that
the Court should turn against another person whenever it comes across evidence
connecting that another person also with the offence. Judicial exercise is
called for keeping a conspectus of the case, including the stage at which the
trial has proceeded already and the quantum of evidence collected till then, and
also the amount of time which the Court had spent for collecting such evidence.
It must be remembered that there is no compelling duty on the court to proceed
against other person."
10.In yet another decision of the Punjab and Haryana High Court reported
in 2004 CRI.L.J.3143 (Jarnail Kaur Vs. State of Punjab) it has held as follows:
7. ..... The legal position summoning an additional accused to face the trial
under Section 319, Cr.P.C. is well settled. The basic requirement for invoking
this section, as held by the Hon'ble Supreme Court in Michael Machado V. Central
Bureau of Investigation (2000) 2 Rec Cri R 75; (2000 Cri LJ 1706) is that it
should appear to the court from the evidence collected during the 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. ....
11.In the instant case, P.W1 has spoken about the involvement of the
present petitioner and his wife in his chief examination.In fact, he had already
implicated him in his complaint. The petitioner's name was dropped only after
the investigation and the charge-sheet was not filed against him. P.W1 had once
again dragged the name of the petitioner and his wife. The learned Judicial
Magistrate ought to have satisfied himself that the petitioner had committed
offence and for such offence the petitioner could as well tried along with
already arraigned accused. Simply because P.W.1 has spoken about the
petitioner, will not necessiate the court to include the name of the petitioner
with the said offences and the court ought to have satisfied itself with the
other available evidences before summoning the petitioner.
12.Therefore, the order passed by the lower court is erroneous and the
petitioner cannot be summoned to face the trial for the offence and the impugned
order passed by the learned Judicial Magistrate No.I, Sivagangai is without
application of mind and the same is liable to be quashed and accordingly,
quashed. Hence, the petition is allowed. Consequently, connected M.P.is
closed.
nbj
To
1.The Inspector of Police,
Kalayarkovil PS,
Sivagangai District.
2.The Judicial Magistrate No.1,
Sivagangai .
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.