Madras High Court
Gopal vs The State Rep. Inspector Of Police on 20 July, 2022
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
Crl.OP.No.16687 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl.O.P. No.16687 of 2022
Gopal .. Petitioner
Versus
The State Rep. Inspector of Police
Sholinghur Police Station
Ranipet District
(Crime No.308/2015) .. Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, to set aside the order passed by the Learned Judicial
Magistrate, Sholingur, Ranipet District in C.C.No.56/2018 dated 21.06.2022.
For Petitioner : Mr.V.Parthiban
For Respondent : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl. Side)
ORDER
This Criminal Original Petition is filed to quash the order dated 21.06.2022 passed by the learned Judicial Magistrate, Sholinghur issuing a direction to provide address to third party for the purpose of issuing a summons to include the name of the the petitioner as an accused under the https://www.mhc.tn.gov.in/judis Page 1 of 6 Crl.OP.No.16687 of 2022 provisions of the 319 of Cr.P.C.
The brief facts of the case are as follows:
2. Originally, the final report was filed against the A1 and A2. The evidenc of the PW1 before the Court indicate that A1 and A2 are the sons of the PW1 brother and the proposed accused is none other than the brother of the PW1. Further, it would indicate that there was some dispute over the property. When the PW1 visited the property of the two accused named in the final report, the proposed accused appears to have abused PW1 besides A1 and A2 had caused injury. Based on the above evidence, the learned Judicial Magistrate has directed to include the proposed accused as one of the accused under Section 319 of the Cr.P.C.
3. The learned counsel for the petitioner would submit that the proposed accused has been summoned merely on the basis of the chief examination. The learned Trial Court has not appreciated the overall evidences produced on record and though the powers under Section 319 of the Cr.P.C.can be invoked by the Court, summoning the person as accused is not an easy thing and only on proper satisfaction that there is an evidence to try the proposed accused, such person can be added as an accused. Hence, https://www.mhc.tn.gov.in/judis Page 2 of 6 Crl.OP.No.16687 of 2022 the contention that except stating that the proposed accused was present and also joined in abusing with the other accused, no other ground has been submitted, whereas, in the Accident Registrar Copy, he has specifically stated only two persons, the presence of the third party was never stated in the A.R.Copy and the FIR has also named only A1 and A2, these facts are not taken into consideration. Hence, submitted that the order passed by the Trial Court is not correct.
4. The learned Additional Public Prosecutor has not disputed with the factual aspects as narrated above. No doubt, the power vested under Section 319 of the Cr.P.C. can be exercised by the Court against the third party when it appears from the evidences that any person not being the accused had also committed the offences and such persons can also tried to be include with the accused, the Court can also proceed against such person for the the offence.
Though the person is not named in the FIR also can be added as an accused under Section 319 of the Cr.P.C. But, it is relevant to note that before taking any action, the learned Trial Court ought to have seen the evidence not only with the evidence of the PW1, but also the materials collected in this regard. Though the power is vested with the learned Magistrate, but, merely on the basis of some of an improbable evidence, one cannot be added as an accused. https://www.mhc.tn.gov.in/judis Page 3 of 6 Crl.OP.No.16687 of 2022 Though the power can be exercised on the basis of the evidence, before exercising such a power, the learned Magistrate ought to have seen whether the evidence discloses the complicity of person in commission of offence by considering the other available materials, which is not done in the present case and the power under Sec.319 of Cr.P.C. was exercised merely on the basis of an improbable evidence. In this regard, the Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others reported in (2014) 3 SCC 92 has held that material should disclose complicity of person in commission of offence which has to be the material that appears from the evidence during course of any inquiry into or trial of offence. For better appreciation, the relevant portion of the judgment is extracted below:
“ ..98. Power u/s 319 Code of Criminal Procedure is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant.It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing the offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of cross-
examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as https://www.mhc.tn.gov.in/judis Page 4 of 6 Crl.OP.No.16687 of 2022 exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes rebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power u/s.319 Code of Criminal Procedure. In Section 319 Code of Criminal Procedure, the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words “for which such person could be tried together with accused”. The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting u/s 319 Code of Criminal Procedure to form any opinion as to the guilt of the accused.”
5. Such view of the matter, this Court is of the firm view that the power exercised under Section 319 of Cr.P.C by the learned Judicial Magistrate is not correct and accordingly, the impugned order is liable to be set aside.
6. Accordingly, the order dated 21.06.2022 in C.C.No.56 of 2016 passed by the learned Judicial Magistrate, Sholinghur, Ranipet District is set aside and this Criminal Original Petition stands allowed. No costs.
20.07.2022 dhk https://www.mhc.tn.gov.in/judis Page 5 of 6 Crl.OP.No.16687 of 2022 N. SATHISH KUMAR, J.
dhk To,
1.The Judicial Magistrate Sholinghur, Ranipet District.
2.The State Rep. Inspector of Police Sholinghur Police Station Ranipet District
3.The Public Prosecutor High Court of Madras.
Crl.O.P. No.16687 of 2022
20.07.2022 https://www.mhc.tn.gov.in/judis Page 6 of 6