Madras High Court
Sundari Annadurai vs The Principal Secretary on 10 December, 2015
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.12.2015
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
Crl.O.P.(MD) No.7331 of 2015
SUNDARI ANNADURAI ... Petitioner
-vs-
1. THE PRINCIPAL SECRETARY
HOME DEPARTMENT (COURTS),
SECRETARIAT, CHENNAI.
2. THE DIRECTOR GENERAL OF POLICE
OFFICE OF DGP, SANTHOME HIGH ROAD,
LAW AND ORDER, CHENNAI.
3. THE SUPERINTENDENT OF POLICE,
VIRUDHUNAGAR, VIRUDHUNAGAR DIST.
4. THE INSPECTOR OF POLICE,
SRIVILLIPUTHUR TOWN P.S.,
SRIVILLIPUTHUR SUB-DIVISION,
SRIVILLIPUTHUR, VIRUDHUNAGAR
(CR.NO.121/2007)
5. THE SPECIAL PUBLIC PROSECUTOR
VI, ADDITIONAL SESSIONS COURT,
MADURAI. INCHARGE OF SC 375/13.
6. A.KANNAN ... Respondents
(R6 is impleaded vide order dated 10.12.2015)
Prayer: Petition filed under Section 482 of Code of Criminal Procedure to
issue appropriate direction to the respondents 3 to 5 to initiate appropriate
proceedings against the witnesses in S.C.No.375 of 2013 on the file of the
1st Additional Sessions Court, Madurai to punish them under the relevant
process of law.
!For Petitioner : Mr.Veerakathiravan
^For R1 to R5 : Mr.C.Mayil Vahana Rajendran
Addl. Public Prosecutor
For R6 : Mr.V.Kathirvelu, Senior Counsel
For Mr.K.Prabhu
:ORDER
This petition has been filed seeking a direction to the respondents 3 to 5 to initiate appropriate proceedings against the witnesses in S.C.No.375 of 2013 on the file of the 1st Additional Sessions Court, Madurai to punish them under the relevant process of law.
2. The case of the petitioner in nutshell is as follows:
i) On 27.01.2007, her husband was brutally murdered by the accused persons with deadly weapons, pursuant to which, brother of the deceased lodged a complaint with the 4th respondent and a case in Crime No.121 of 2007 for offences under Sections 147, 148, 302, 307, 379, 109, 120(B), 149 and 212 IPC, has also been registered by the 4th respondent Police and the case was also committed to the Principal Sessions Judge, Srivilliputhur in S.C.No.150 of 2008.
ii) It is submitted that Accused Nos.8 to 11 had decided to do away with the life of the petitioner's husband due to some political motivations and A1 in this case executed their plan along with A2 to A7 and A12. Accused No.8, namely, Inbathamilan, was the Ex-Minister for Youth Welfare and Sports during 2001-2006, that A10 is the practising Advocate at Srivilliputhu Bar and that A11 is the Municipal Councillor of Srivilliputhur Municipality.
Since accused persons are very influential persons, they instill fear in the minds of the witnesses, thereby prevent them from deposing the truth. Above all, A8 to A8 are having close association with the local Subordinate Police Officials, which forced the petitioner to file a representation dated 16.01.2011 to the higher officials for appointment of Special Public Prosecutor and since no action was taken thereon, he filed a petition in Crl.O.P.11618 of 2011, seeking to appoint a Special Public Prosecutor to conduct the prosecution in S.C.No.150 of 2008.
iii) It is further submitted that consequently, the petitioner's son one Dhilipan Raja had filed a writ petition for mandamus praying for appointment of Special Public Prosecutor in W.P.(MD) No.9982 of 2012 and after clubbing the petition filed by the petitioner, a common order was passed by this Court, directing the authorities to appoint the Special Public Prosecutor for conducting trial. Though the Government Officials had appointed a Special Public Prosecutor in G.O.(D) 401 VIA Department dated 10.06.2013, they did not take any steps for transfer of the case and also for deputation of a higher police officials, not below the rank of a Superintendent of Police.
iv) It is the submission of the petitioner that the petitioner filed a writ petition in W.P.No.2675 of 2014 before this Court to entrust the case pending in S.C.No.375 of 2013 in Crime No.121 of 2007, which was disposed of by this Court with direction to the Superintendent of Police, Virudhunagar District to monitor the prosecution by deputing a Deputy Superintendent of Police to attend the trial proceedings. Subsequently, the petitioner also filed another petition in Crl.O.P.15431 of 2013 for transfer of the case in S.C.No.150 of 2008 from the file of the Principal Sessions Judge, Srivilliputhur to any other District Court, in which, the case was ordered to be transferred to the file of 1st Additional Sessions Court, Madurai in S.C.No.375 of 2013.
v) It is the further submission of the petitioners that because of accused persons' influence, the witnesses retracted their earlier statement and they had not spoken the truth before the Trial Court, which ended in accused favour. Therefore, this petition has been filed to punish the erring witnesses, namely, Dravida Mani Selvan (PW1), Jeyakumar (PW2), Sudarkani (PW3), Ilango Selvan (PW4), Ramar (PW5), Panthamuthu (PW6), Sundar Rajan (PW7), Karuppiah (PW8), Ganesamoorthi (PW9), Madasamy (Pw10), Ganesh (PW11) and Ganapathiappan (PW12).
3. The fourth respondent has filed a written submission by inter alia contending as under:
i) It is stated that during enquiry in connection with a case in Crime No.121 of 2007, it came to light that 12 accused persons were involved in the offence and 62 witnesses have been examined. Upon completion of investigation, a charge sheet was also filed before the Judicial Magistrate No.II, Srivilliputhur against 12 accused, which was taken on file in PRC No.26 of 2007 and was subsequently committed to the Court of Sessions, Srivilliputhur. While so, the petitioner filed a petition in Crl.O.P.(MD) No.11618 of 2011 for appointment of Special Public Prosecutor to conduct the prosecution in S.C.No.150 of 2008.
ii) It is further stated that based on the orders of this Court, one K.S.Prabakaran was appointed as a Special Public Prosecutor to conduct the case in S.C.no.150 of 2008. Thereafter, the petitioner filed another petition for transfer of the case, pursuant to which, the case was made over to the Additional Sessions Judge, Madurai, wherein 28 witnesses have been examined by the Trial Court. Pending the same, the petitioner has come forward with this petition.
iii) It is the stand of the respondents that after 5 rounds of litigation, the case was finally taken on its file in the year 2008 and that the petitioner has been filed repeated petitions to drag on the proceedings, which is clear case of abuse of process of law. The prayer sought in this petition is not maintainable, as in the midst of the trial, such relief cannot be asked for by filing complaint under Section 195 r/w 340 Cr.P.C.
Hence, it is prayed that this petition is liable to be dismissed.
4. The counsel for the petitioner has submitted that on account of the high influence of the accused persons, all the accused persons are turning hostile thereby, attempting to escape from the clutches of law. According to him, Section 195 of Cr.P.C. has to be read with Section 340 Cr.P.C. and the Court can initiate action against those witnesses based on the application filed under the relevant provisions of law at any time. He has further submitted that stringent action is required to be taken against the witnesses, who are deposing falsely, which will prevent other witnesses to make false statement before the Court.
5. Per contra, the Additional Public Prosecutor, appearing for the official respondents, would contend that as and when the Trial Court conducts the case, it is for the witnesses to make necessary statement and only after the Trial is over, in the event of the Trial Judge coming to the conclusion that there is a false statement, then suitable action can be initiated against the witnesses. He would further contend that Sub-section (1) of Section 340 Cr.P.C. contemplates holding of a preliminary enquiry and normally, a direction for filing of a complaint is not make during the pendency of the proceedings before the Court and this cannot be done at the stage, when the proceedings is concluded and the final judgment is rendered.
6. V.Kathirvelu, Senior Counsel, appearing for the impleaded respondent would submit that it is the petitioner, who only approached this Court for speedy trial by appointing a Special Public Prosecutor and transfer of the case from one Court to another. It is incorrect to state that there is a collusion nor witnesses have been purchased by threat. Even for the sake of argument if it is taken that the witnesses turn hostile, ultimately it is for the Trial Court to decide the case based on the materials available on record. He would also submit that even though there is no truth in the averment made by the petitioner, yet, the sixth respondent is ready co- operate with the trial of the case.
7. Heard the counsel on either side and perused the materials available on record.
8. A careful scrutiny of the affidavit and other documents would disclose that a criminal case has been pending in Crime No.121 of 2007 and at the instance of the petitioner, numerous petitions were filed for appointment of Special Public Prosecutor and for transfer of the case. At last, the case has been transferred to the file of 1st Additional Sessions Court, Madurai on the orders of this Court and the trial of the case is on its regular way. While so, the petitioner has filed this petition, for initiation of action against the witnesses owing to withdrawal of their previous statements in respect of the case in S.C.No.375 of 2013, pending on the file of 1st Additional Sessions Court, Madurai, under Section 195 r/w 340 Cr.P.C.
9. The Hon'ble Supreme Court in the case of Iqbal Sing Marwah and another vs. Meenakshi Marwah and another, reported in (2005) 4 SCC 370, has made it very clear that the course of making complaint regarding commission of an offence referred to under Section 195(1)(b) will have to be adopted only if the interest of justice requires and not in every case. The relevant observation made in the judgment is extracted as under:
"23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded.
24. There is another consideration which has to be kept in mind. Sub- section (1) of Section 340 Cr.P.C. contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a Court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which are time consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the Court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii)."
10. If the contention of the petitioner is accepted, then there is likelihood of Sessions case getting prolonged indefinitely. Moreover, the commission of offence for perjury to misguide the Court will be unearthed only at the end of the trial. It is not the real spirit of the legislature that each and every witness, who turns hostile or gives different versions, has to be punished under the penal provisions of law. In case the submission of the petitioner is accepted, there is every possibility of the accused coming forward with the similar petition and in that event, there could be no finality attained in the real issue and there will certainly be a total chaos and confusion in the administration of the justice. As held by the Hon'ble Supreme Court, only after the final verdict, action could be initiated against the witnesses, who give false statements during Trial and therefore, I find that there is no substance in the contention raised by the petitioner.
11. Hence, I am not inclined to grant the relief sought by the petitioner and the Criminal Original Petition is dismissed. Consequently, connected miscellaneous petition is closed.
12. However, this Court expects the Trial Court to conduct the case on day today basis and expedite the Trial so as to bring the issue to a logical end as expeditiously as possible. The Trial Court shall not adjourn the matter beyond five working days at any point of time.
13. It is pertinent to mention that the Special Public Prosecutor has been appointed by the Government at the request of the petitioner to conduct the trial without any favour or bias and it is the bounden duty of the Special Public Prosecutor to unravel the real truth at the time of cross- examination, act impartially and present the full facts, witnesses and evidence before the Court to enable the Court to decide the issue. Whenever the witnesses turn hostile, the petitioner also cannot say that they give contrary statement in the cross examination against the one given earlier under Section 164 Cr.P.C., as the same falls within the wisdom of the Special Public Prosecutor to elucidate the real truth from the mouth of the witnesses, who turn hostile, through his/her vast experience, during the cross examination.
To
1. THE PRINCIPAL SECRETARY HOME DEPARTMENT (COURTS), SECRETARIAT, CHENNAI.
2. THE DIRECTOR GENERAL OF POLICE OFFICE OF DGP, SANTHOME HIGH ROAD, LAW AND ORDER, CHENNAI.
3. THE SUPERINTENDENT OF POLICE, VIRUDHUNAGAR, VIRUDHUNAGAR DIST.
4. THE INSPECTOR OF POLICE, SRIVILLIPUTHUR TOWN P.S., SRIVILLIPUTHUR SUB-DIVISION, SRIVILLIPUTHUR, VIRUDHUNAGAR (CR.NO.121/2007)
5. THE SPECIAL PUBLIC PROSECUTOR VI, ADDITIONAL SESSIONS COURT, MADURAI. INCHARGE OF SC 375/13..