Madras High Court
Sundaramoorthy @ A.S.Moorthy vs State on 18 February, 2015
Author: C.T.Selvam
Bench: C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.02.2015
CORAM
THE HON'BLE MR.JUSTICE C.T.SELVAM
CRL.O.P.(MD)No.8331 of 2008
and
M.P.(MD)No.2 of 2008
Sundaramoorthy @ A.S.Moorthy .. Petitioner
.. Vs ..
1.State, rep. by the
Inspector of Police,
Kumbakkonam East Police Station,
Thanjavur District.
(Crime No.114/2003)
2.Indrani .. Respondents
Impleaded as per the orders of
the Hon'ble Court made in
MP(MD) No.1 of 2009 in
Crl.O.P.(MD) No.8331/2008 vide
orders dated 01.09.2009 by REJ
Criminal Original Petition filed under section 482 of the Code of
Criminal Procedure, praying to call for the records relating to S.C.No.406 of
2008 on the file of the Additional Sessions Judge cum Fast Track Court,
Thanjavur and to quash the same in pursuance of the Crime No.114 of 2003 on
the file of the respondent.
!For Petitioner : Mr.R.Shanmugasundaram
for Mr.D.Veerasekaran
^For 1st Respondent : Mr.K.Anbarasan
Government Advocate (Crl. Side)
For 2nd Respondent : Mr.P.Saravanan for
Mr.B.Pugalendhi
- - - - -
:ORDER
This petition has been filed under Section 482 Cr.P.C, praying to quash the proceedings in S.C.No.406 of 2008 on the file of the Additional Sessions Judge cum Fast Track Court, Thanjavur.
2.Heard learned Senior Counsel for petitioner, learned Government Advocate (Crl. Side) for the first respondent and also learned counsel for second respondent.
3.The case of the prosecution is that due to enmity between deceased Boopalan and the first accused Murugesan on account of not giving deceased's daughter Gandhimathi in marriage to the first accused, the first accused along with other accused murdered the deceased. Pursuant to complaint made by one Mahalingam a case in Crime No.114 of 2013 was registered for offences under Sections 120B and 302 I.P.C. Pursuant to investigation a charge sheet was filed informing commission of offences under Sections 147, 120B, 34, 342, 342 r/w 114, 302, 302 r/w 120B I.P.C. As the petitioner had not appeared before the trial Court the case against him was split up and the matter was tried in S.C.No.68 of 2008 on the file of Additional Sessions Judge, Fast Track Court No.1, Thanjavur and all but first accused were acquitted by the trial Court. There against the defacto complainant moved Criminal Revision before this Court and the same is still pending in Crl.R.C.(MD) No.892/2007. The first accused preferred Criminal Appeal (MD) No.490 of 2007 before this Court and under judgment dated 02.08.2012, such appeal was allowed and he stands acquitted.
4. Against N.B.W. issued against him by the trial Court, the petitioner has obtained orders of anticipatory bail in Crl.M.P.No.2093 of 2008 on the file of the Principal Sessions Judge, Thanjavur. The defacto complainant sought cancellation of bail granted in favour of the petitioner in Crl.O.P.(MD) No.6722 of 2008, which was dismissed on 01.09.2009. There against the defacto complainant moved the Supreme Court in Special Leave to Appeal (Criminal) No.9522 of 2009, which also was dismissed.
5. Learned Senior Counsel for petitioner submitted that the charge against the petitioner is of his having been party to the criminal conspiracy to do away with the deceased. The charge sheet informs that this petitioner while stationed at Dubai had caused the first accused to travel to India towards carrying out the heinous offence. The charge sheet also informs that he had been party to conspiracy when in India and that the murder of the deceased has been planned in meetings in several towns.
6.Learned Senior Counsel for petitioner also submits that when all the other accused in the case now stand acquitted, the judgment of acquittal against accused 2 to 9 having been rendered by the trial Court and that of first accused by Division Bench of this Court, this petitioner should not be required to undergo the rigour of trial. There absolutely is no possibility of conviction of the petitioner. The decision of the Delhi High Court in Sunil Kumar v. State (2000(1) Crimes 73) informs that where the other accused were acquitted on ground of insufficiency of evidence, the evidence adduced in the case was inseparable and indivisible, one of the accused could not be treated differently. Learned Senior Counsel submits that the charge framed against the petitioner is liable to be quashed. Reliance is placed on decision to similar effect Mohammed Ilias v. State of Karnataka (2001 (4) Crimes 417). Particular reliance was placed on judgment of this Court in Tamilmaran v. State ((2007) 1 MLJ (Crl) 1334, wherein it has been observed as follows:
"7. This Court is of the considered view that there is much force on the contention put forward by the learned senior counsel to the effect that the learned trial Judge having disbelieved the prosecution case in toto no useful purpose would be served by putting the petitioner to undergo the ordeal of trial on the basis of the very same set of evidence. It is also pointed out by the learned senior counsel that even the defacto complainant himself turned hostile giving a total go-by to his earlier version and there is no other material available on record to implicate the petitioner. The learned senior counsel has rightly placed reliance on the decision of the Delhi High Court in a case in Sunil Kumar v. State reported in 2000 (1) Crimes 73 wherein it is held as follows :
3. The question thus is as to whether in the face of the judgement of acquittal the petitioner should still be permitted to undergo the ordeal of a trial. In Sat Kumar v. State of Haryana (AIR 1974 SC 294), it was held that there is no rule of law that if the Court acquits some of the accused on the evidence of a witness raising doubt with regard to them the other accused against whom there is absolute certainty about his complicity in the crime based on the remaining credible part of the evidence of that witness must be acquitted. (See also Har Prasad v. State of Madhya Pradesh (AIR 1971 SC 1450), Makan Jivan v. State of Gujarat (AIR 1971 SC 1797), Mohd. Moin Uddin V. State of Maharashtra (1971 S.C.C. (Cri.) 617). But where the evidence against all the accused persons is inseparable and indivisible and if some of the accused persons have been acquitted, the remaining accused persons cannot be treated differently on the basis of the same evidence.
4. On perusal of the judgment of acquittal dated 19-1-1998, it appears that the deceased Balwan Singh met with a homicidal death owing to burn injuries sustained by him has not been disputed by the accused persons. The evidence against the accused persons mainly consists of the evidence of the eye-
witnesses, namely, Karan Singh (PW 2) and Smt.Asha Rani (PW-5) (Wife of the deceased Balwan Singh) besides the dying declaration (Ex.PW-13/A) of the deceased Balwan Singh. Both the said witnesses have not supported the prosecution case and so they have been declared hostile by the prosecution. Eliminating the evidence of the said eye-witnesses, there remains the dying declaration (Ex.PW.13/A) of the deceased Balwan Singh, which has been disbelieved by the learned Addl. Sessions Judge. It would, therefore, appear that the accused persons, namely, Jangli Tyagi, Balbir Singh, Anil Kumar Tyagi and Sushil Kumar Tyagi were acquitted on the ground of insufficiency of evidence. Thus, the evidence adduced in the case against all the accused persons is inseparable and indivisible and that being so the petitioner cannot be treated differently on the basis of the said evidence. In this view of the matter, there is no prospect of the case ending in conviction against the petitioner and the valuable time of the Court would be wasted for holding trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. If the Court is almost certain that the trial only would be an exercise in futility or sheer wastage of time, it is advisable to truncate or ship the proceedings at the stage of Section 227 of the Code itself."
8. Towards informing that pendency of revision against the acquittal of the other accused, at the instance of the defacto complainant, would be of no consequences, learned Senior Counsel refers to judgment of the Hon'ble Apex Court in K.Ramachandran v. V.V.Rajan ((2009) 14 SCC 569). He would pray that this Criminal Original Petition be allowed and the proceedings in S.C.No.406 of 2008 on the file of the Additional Sessions Judge cum Fact Track Court, Thanjavur be quashed.
9. Learned counsel for the second respondent/defacto complainant, upon instructions would submit that counsel earlier engaged by his party had not filed appeal against the judgment in Crl.A.(MD) No.490 of 2007 by way of SLP and having return of papers, intends to move Hon'ble Supreme Court against the Division Bench judgment of acquittal.
10. In K.Ramachandran v. V.V.Rajan ((2009) 14 SCC 569) the Hon'ble Supreme Court was dealing an appeal against judgment of the High Court in revision, where under the judgment of acquittal passed by the trial Court had been overdone. The fact that a petition seeking condonation of delay in filing appeal against acquittal by the trial Court been moved by the State and that had been dismissed was not to the knowledge of the learned Single Judge of the High court, passed the judgment in revision. The Hon'ble Supreme Court observed as follows:
"18. Though, we must say that an awkward situation has arisen wherein an appeal against the judgment had failed, though only on the question of limitation, yet, a revision against the same judgment, however, continued and was allowed also and all this happened because of the casual attitude on the part of the State Government as also the appellant-accused in not pointing out the proper facts to the Courts, both to the Division Bench as well as the learned Single Judge.
19. The question is undoubtedly important, and hence, though raised for the first time before us, we propose to decide the same. An incongruous situation has arisen where, though the appeal against the acquittal has been dismissed by not allowing the condonation of delay in filing the same, yet, the revision filed against the said judgment by the private complainant has not only survived but such revision has also been allowed.
20. We must observe that the Division Bench in not allowing the condonation of delay has effectively dismissed the appeal in the sense that it has not allowed the State Government to proceed with the appeal for which there was a provision. This was a prosecution not based on a private complaint but on the police report. Therefore, the State Government had a right under Section 378(2) CrPC to file an appeal and very conspicuously the private party did not have that right. The private complainant, therefore, could only excite the general powers of revision by the High Court.
21. Firstly, we must clarify that when the Division Bench considered the question of condonation of delay in filing the appeal against acquittal, though technically it was deciding the application under Section 378(3) CrPC, it was actually the whole appeal itself which was before it. In this behalf it will have to be seen that the limitation for filing such appeal at the instance of the State Government against acquittal is provided by Article 114 of the Limitation Act.
22. It is undoubtedly true that sub-section (3) of Section 378 CrPC specifically provides that the appeal under sub-sections (1) and (2) cannot be entertained except with the leave of the High Court and, therefore, an application for leave in such appeal filed by the State Government is a must. The limitation for filing the appeal is 90 days from the date of the order while the same article provides for 30 days of limitation from the date of grant of special leave. Therefore, what was before the High Court was the appeal itself and the petitioner prayed the condonation of delay of 801 days in filing the appeal against acquittal. When the High Court declined to grant that permission, it, in effect, refused to entertain the appeal against the order of the trial court, thus making it final.
23. Now, obviously, if the judgment was rendered final by the Division Bench of the High Court then there could not be any subsequent order to the contrary by the Single Judge even if the effect of the pendency of the revision was not brought to the notice of the Division Bench. There is no review power under the Criminal Procedure Code to the criminal court including the High Court. Such a review power exists only in this Court. As such, once the High Court had passed the order refusing the condonation of delay of appeal and thereby awarding the finality to the trial court?s judgment, that order could be considered and upset only by this Court on a proper appeal having been filed in this Court by the State Government. As against the State Government, the order of the trial court acquitting the appellant-accused had become final. Therefore, the only course left open then in law was to challenge that order refusing to condone the delay in filing appeal against acquittal.
24. It is an admitted fact that such appeal challenging the order passed by the Division Bench was never filed and the order of the Division Bench became final and has remained final till today. Under such circumstances, in our considered opinion, the revision against the same order could not have been entertained, much less allowed upsetting the finality of the trial court?s judgment, which finality was confirmed by the order of the High Court by refusing to condone the delay in filing the appeal against the same trial court judgment. That would be the true import of the appellate powers of the High Court.
....
31. All this would clearly suggest that once the appeal at the instance of the State has been dismissed, the complainant or the State could not ask for the revision of the judgment.
32. In this particular case, we are of the clear-cut opinion, that since the trial court?s judgment was given the effect of finality by the Division Bench of the High Court then the learned Single Judge of that Court could not have reversed that effect and upset that position. In this behalf, even sub- section (6) would, though not directly, support this view.
33. Sub-section (6) of Section 378 CrPC provides as under:
?378. (6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2).?
This would mean that if a case is instituted by the complainant and such leave is refused, even the State Government would be unable to pursue any appeal under sub-sections (1) or (2) against the impugned judgment of acquittal.
34. In effect if by sub-section (6), the finality attained by the dismissal of an application for special leave is confirmed by the court then that verdict would operate against the said judgment of acquittal being challenged even at the instance of the State Government. If this is the effect of the finality attained by the judgment, even in case of an offence which was tried on the basis of a private complaint, then there would be no reason not to give the same effect to the finality attained by the judgment of acquittal by reason of the order passed in appeal filed by the State Government.
35. Again, as we have already pointed out, the finality confirmed by the Division Bench should not be upset by the judgment of the Single Bench of the same Court. Such incongruous results would follow if we allow the revision to be entertained and decided.
11. In the instant case the trial Court has found unbelievable the prosecution case against other accused but insofar as A1 is concerned, it found him guilty and convicted him. On the appreciation of materials, the Division Bench of this Court found otherwise and in favour of A1. In the circumstances, it is only this petitioner who is to face trial. The allegation against him is under Section 120-B I.P.C. ie. a substantive offence of criminal conspiracy.
C.T.SELVAM, J.
sj
12.Conspiracy requires meeting of minds and in the least, of two persons. In the absence of any co-accused there would be no occasion to try the petitioner for such offence. For such reason and for the fact that except the first accused other accused were acquitted by the trial Court and the first accused stands acquitted by the Division Bench of this Court and the Hon'ble Apex Court in K.Ramachandran's case informs that in such event revision against the acquittal of the other accused would be of no consequence, I am inclined to allow this petition.
13. The proceedings in S.C.No.406 of 2008 on the file of the Additional Session Judge, Fast Track Court, Thanjavur are quashed. Consequently, connected M.P.(MD) No.2 of 2008 is closed.
18.02.2015 Index : Yes/No Internet: Yes/No sj To
1.The Additional Session Judge, Fast Track Court, Thanjavur.
2.Inspector of Police, Kumbakkonam East Police Station, Thanjavur District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court Madurai.
CRL.O.P.(MD)No.8331 of 2008and M.P.(MD)No.2 of 2008