Madras High Court
Albert vs Dennis on 29 January, 2018
Author: P.N.Prakash
Bench: P.N.Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.01.2018
CORAM
THE HONOURABLE MR.JUSTICE P.N.PRAKASH
Crl.R.C.(MD)No.455 of 2006
and
M.P.(MD)No.1 of 2006
1.Albert
2.Martin Vincent :Petitioners/Petitioners/Accused
Nos.1 and 2
-Vs.-
1.Dennis
2.The State of TamilNadu represented by
Sub-Inspector of Police,
Puthukadai Police Station,
Kanyakumari District. : Respondents / Respondents /
Complainant
Prayer: Criminal Revision Case is filed under Section 397 r/w 401 Cr.P.C., to
set aside the order of the learned Assistant Sessions Judge, Kuzhithurai made
in Crl.M.P.No.59 of 2005 in S.C.No.40 of 2005 and allow Crl.M.P.No.59 of
2005.
!For Petitioners : Mr.N.Kamesh
for Mr.R.Devaraj
^For R-1 : Mr.K.Prabhu
For R-2 : Mrs.S.Bharathi,
Government Advocate (Crl. Side)
:ORDER
For the sake of convenience, the parties will be referred to by their name.
2. It is the case of Dennis that on 03.01.2002, around 08.00 p.m., he closed his shop; that thereafter, he was proceeding to his house and that five persons waylaid him and started assaulting him with an intention to murder him. Thereafter, they escaped. For this incident, he gave a complaint to the police, based on which, the police registered a case in Crime No.6 of 2002 for offences under Sections 341 and 323 IPC against only two accused namely, Albert and Martin Vincent. After completing the investigation in Crime No.6 of 2002, the police filed S.T.C.No.500 of 2002 against Albert and Martin Vincent for offences under Sections 341 and 323 IPC before the learned Judicial Magistrate-II, Kulithurai. Cognizance for the said offences has been taken and on the appearance of two accused, trial was held and both of them were convicted in S.T.C.No.500 of 2002 on 08.01.2004 and they were released under the Probation of Offenders Act. However, Dennis was not happy with the manner in which the police had taken up the investigation of the case and, therefore, he, simultaneously, filed a private complaint in Cr.M.P.No.1821 of 2004 before the learned Judicial Magistrate No.II, Kulithurai against five persons including Martin and Albert Vincent for the offences under Sections 147, 148, 323 and 307 r/w 149 IPC. Since it was a private complaint triable by the Sessions Court, the Magistrate took cognizance of the aforesaid offences after recorded the sworn statement of the complainant and his witnesses. On the appearance of the accused, the case was committed to the Court of Sessions under Section 208 Cr.P.C. and the same was numbered as S.C.No.40 of 2005. The learned Sessions Judge, Kanniyakumari made over the case to the Assistant Sessions Court, Kulithurai, for trial.
3. At that juncture, the accused namely, Albert and Martin Vincent filed Cr.M.P.No.59 of 2005 in Crime No.40 of 2005 under Section 227 Cr.P.C., for discharge, which came to be dismissed on 09.06.2006, challenging which, the present Criminal Revision Case has been filed and the same is pending till 2018.
4. Heard Mr.Kamesh, learned counsel appearing for the petitioners, Mr.K.Prabhu, learned counsel appearing for the first respondent and Mrs.S.Bharathi, learned Government Advocate (Criminal Side) appearing for the second respondent.
5. The learned counsel for the petitioners contended that for the occurrence that is said to have taken place on 03.01.2002 at 08.00 p.m., there cannot be two prosecutions as that would amount to double jeopardy. The learned counsel also placed strong reliance on Section 300 Cr.P.C. and Article 20 of the Constitution of India in support of his submission. He also took this Court to the evidence of Doctor Jeyalal, who was examined as fifth witness on behalf of the complainant before the Committal Court and who, in his evidence, has stated that the complainant suffered only simple injuries. Based on the submission, the learned counsel appearing for the petitioners contended that the police have rightly prosecuted the accused for the offence under Section 323 IPC. There are no materials to show that the accused had committed the offence under Section 307 IPC.
6. Per contra, the learned counsel appearing for the first respondent refuted the contentions.
7. This Court gave its anxious consideration to the rival submissions.
8. It is the specific case of Dennis that on 03.01.2002 around 08.00 p.m., he was waylaid by five persons, who brutally attacked him with the intention of committing his murder. However, the police, for reasons known to them, registered an FIR only against two persons and let off three others. Therefore, Dennis filed a private compliant against them in order to prove charges.
9. In the opinion of this Court, just because the police had prosecuted the accused for some lesser offences, the right of the complainant to prosecute the accused for graver offences cannot be taken away. The question of double jeopardy will not arise, because though the bone of contention is with regard to only one occurrence, yet the offences in the police report are different from the offences in the private complaint.
10. As regards the statement of Dr.Jeyalal that Dennis had suffered only simple injuries, that cannot be the sole reason for discharging the accused for the offence under Section 307 IPC, because, even if the victim had not suffered any injury, a charge under Section 307 IPC can be maintained. Therefore, the appreciation of evidence of Dr.Jeyalal in the right prospective can be done only by the trial Court and not by this Court. Since, there are prima-facie materials for framing necessary charges, this Court is of the view that this is not a fit case, in which, the accused can be discharged. This Criminal Revision Case is dismissed accordingly.
11. At this juncture, Mr.Sreenivasan, learned counsel contended that since Martin Vincent is an Army Man, his appearance before the trial Court may be dispensed with.
12. Accepting the submission, this Court directs the second petitioner to appear before the Trial Court for collecting the final report and other papers under Section 207 Cr.P.C., at the time of framing charges, for questioning under Section 313 Cr.P.C. and on the day of judgment. On all other dates, if the second petitioner files an application under Section 317 Cr.P.C., undertaking that he will not dispute his identity and that his counsel will cross-examine the prosecution witnesses on the day they are examined in chief, as held by the Hon'ble Supreme Court in Vinod Kumar vs. State of Punjab reported in 2015 (1) Scale 542, in his absence without adopting dilatory tactics, the Trial Court may liberally consider and entertain the same.
If the second petitioner absconds, a fresh First Information Report can be registered against him under Section 229-A of the Indian Penal Code. If the second petitioner adopts any dilatory tactics, he can be remanded to custody as laid down by the Supreme Court in State of Uttar Pradesh vs. Shambu Nath Singh [(2001)4 SCC 667]. However, the trial Court is directed to complete the trial in S.C.No.59 of 2005, within a period of six months from the date of receipt of a copy of this order. Whatever stated above is only for deciding the Criminal Revision Case and the trial Court shall proceed with the trial purely on merits without in any manner being influenced by what is stated above. Consequently, connected Miscellaneous Petition is closed.
To
1.The learned Assistant Sessions Judge, Kuzhithurai.
2.The Sub-Inspector of Police, Puthukadai Police Station, Kanyakumari District.
3.The Government Advocate,
Madurai Bench of Madras High Court,
Madurai. .