Madras High Court
Sellamuthu vs State Rep.By
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A. No.184 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 17.08.2020
DELIVERED ON 14.10.2020
CORAM:
THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR
Crl.A.No.184 of 2020
1.Sellamuthu
S/o.Mariappan.
2.Tamilmaran
S/o.Periyakaruppan ...Appellants
-Vs-
1.State rep.by
Deputy Superintendent of Police,
CBI, SCB, Chennai.
2.Samikannu
S/o.Chellakannu ... Respondents
Prayer: Criminal Appeal filed under Section 14 A (1) of Scheduled Castes &
Scheduled Tribes Prevention of Atrocities, Act, 1989, to call for the records in
S.C.NO.03 of 2019 on the file of the learned Special Court for Trial of Cases
SC/ST (POA) Act, Cuddalore Division, Cuddalore and set aside the order dated
13.02.2020 in Crl.M.P.No.13 of 2020.
For Appellants : Mr.N.R. Elango
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Crl.A. No.184 of 2020
Senior counsel for Raj Tilak
For Respondents : Mr.K.Srinivasan,
Special Public Prosecutor [for R1]
Mr.K.Thilagaeswaran [for R2]
*****
JUDGMENT
The appellants, who are arrayed as A.15 and A.14 in S.C.No.3 of 2019 on the file of Special Court for trial of cases SC / ST (Prevention of Atrocities Act), Cuddalore Division, Cuddalore, for offences punishable under Sections 217, 218 IPC and under Section 4 of SC/ST (Prevention of Atrocities Act), 1989, have filed this appeal, seeking to set aside the order dated 13.02.2020 passed in Crl.M.P.No.13 of 2020 in S.C.No.3 of 2019.
2. The contention of the appellants is that the appellants are arrayed as A.15 and A.14 respectively in S.C.No.3 of 2019. Initially, the appellants were charged for offences u/s.217, 218 IPC and under Section 4 of SC/ST (Prevention of Atrocities Act), 1989. Thereafter, P.W.1/de facto complainant had belatedly filed a petition under Section 216 Cr.P.C. for adding the charges against the accused A.14 and A.15 also for offence under Section 3 (2) (i) of SC / ST (Prevention of Atrocities Act), 1989. The trial Court, by order dated 13.02.2020, accepting the contention of P.W.1 had allowed the petition and http://www.judis.nic.in 2/28 Crl.A. No.184 of 2020 added the charges against the accused A.14 and A.15 under Section 3 (2) (i) of SC / ST (Prevention of Atrocities Act), 1989. Challenging the same, the present appeal is filed.
3. The case of the prosecution is that on a complaint filed by K.Ashokan, Village Administrative Officer, Kuppanatham Village, a case in Crime No.356 of 2003 was registered on 17.07.2003, by the Virudhachalam Police for offences punishable under Sections 147, 302 and 201 IPC, against 8 persons out of which four from the SC / ST Community and four from the Vanniyar Community. The case is that the daughter of the 1st accused was studying B.Com through Correspondence Course in Annamalai University and P.W.1/ Samikannu's son Murugesan was studying Chemical Engineering in Annamalai University, both developed love affair with each other. The girl belongs to Vanniyar community and the boy belongs to SC community. On 05.05.2003 both of them eloped, got married and they were living together. On 03.07.2003, whereabouts of them were found and on 08.07.2003 both of them were brought forcibly and administered poison by the accused. P.W.1's son was also inflicted with cut injury on his jaw and neck and earlier to it, he was brutally attacked. Both the young couples died due to the forcible poisoning and later their bodies were burnt to destroy evidence. This had taken place on 08.07.2003 and no http://www.judis.nic.in 3/28 Crl.A. No.184 of 2020 complaint was lodged to the Viruthachalam Police Station. Later, on the complaint given by the Village Administrative Officer, a case was registered against eight persons out of which four from the SC / ST Community and four from the Vanniyar Community. With an intention to close the case, and do give a decent burial persons from both community were made accused. Only on 17.07.2003, A.15 / Sub-Inspector of Police, the 1st appellant herein, who is the Investigating Officer and A.14 / Inspector of Police, the 2nd appellant, registered an FIR in Crime No.356 of 2003. Initially the case was registered for offence under Section 147 , 302 and 201 IPC. During the pendency of the trial, Ilayaperumal, Kannadhasan and C.Ayyasamy filed petitions in Crl.O.P.Nos.31572, 31850 & 31851 of 2003 before this Court. This Court transferred the investigation in Crime No.356 of 2003 to CBI. On 21.05.2004, CBI registered the case as RC.No.3(S)/2004/CBI/SCB/Chennai and took the investigation. During investigation, it revealed 13 persons were involved in the commission of the above offence. On 21.01.2005, CBI filed a charge sheet as per Section 173 Cr.P.C., before the jurisdictional Court i.e., Chief Judicial Magistrate, Chengalpet, against A1 to A13 for the offences punishable under Sections 120 B r/w. 147, 347, 364, 302 and 201 IPC and under Section 3(1)(X) and 3(2)(V) of SC/ST (Prevention of Atrocities) Act, 1989. The officials of Virudhachalam Police Station viz., Tamilmaran, the Sub Inspector of Police http://www.judis.nic.in 4/28 Crl.A. No.184 of 2020 [A14] and Sellamuthu, The Inspector of Police [A15], the appellants herein, failed to act on the complaint given by the mother of the deceased Murugesan and also being public servants, maliciously formed incorrect records and showed false recovery with an intention to save the real accused persons from legal punishment. Hence, they were charged for offences punishable under Sections 217 and 218 IPC. As far as the accused in Crime No.356 of 2003, A.Anbalagan [A4], Illyaperumal [A5], Kannadhasan [A6], and C.Samikannu [A7,] were concerned, they got discharged since there was no evidence against them. Thereafter, the case was taken cognizance by the Principal District and Sessions Court, Cuddalore, in S.C.No.185 of 2010 and trial commenced and during pendancy of trial, slew of petitions were filed. The particulars of the same are given below:
SL. DATE PARTICULARS
NO
27.04.2014 W.P.No.9681 of 2010 filed before Hon'ble High Court for further fair 1 investigation by advocate Sh.K.Thilageeswaran.
17.12.2014 W.P.No.9681/2010 dismissed by Hon'ble High Court. 19.06.2014 Cr.M.P.No.2870/2014 P u/s. 227 Cr.P.C. filed by A12 Sh.K.Ramdass and A13 Sh.N.Chinnadurai before Court of District and Sessions Judge, Cuddalore.
18.04.2015 CMP.No.2870/2014 dismissed by Court of District and Sessions Judge, Cuddalore.
214.07.2015 Cr.R.C.No.716/2015 filed in Hon'ble High Court of Madras. 01.06.2017 Hon'ble High Court dismissed Cr.R.C.No.716/2015. Hon'ble High Court ordered charges to be framed immediately and trial to be completed within 4 months.
14.07.2017 Charges were framed against the accused and trial proceedings were http://www.judis.nic.in 5/28 Crl.A. No.184 of 2020 SL. DATE PARTICULARS NO fixed from 28.08.2017 and trial commenced on 28.08.2017. 30.08.2017 Cr.M.P.No.3747/2017 filed by CBI before learned Principal Sessions Judge, Cuddalore to cancel bail of Accused and CBI informed about the
3. threats faced by the witnesses.
01.09.2017 Cr.M.P.No.3785/2017 filed by CBI before learned Principal Sessions Judge, Cuddalore u/s.309 Cr.P.C. for adjournment till disposal of Cr.M.P.No.3747/2017.
01.09.2017 Both Cr.M.P.No.3747/2017 and 3785/2017 dismissed. 21.09.2017 Cr.M.P.No.4100/2017 filed by CBI u/s. 311 Cr.P.C. before learned Principal Session Judge, Cuddalore to summon Smt.Chinnapillai as Prosecution Witness.
22.09.2017 Cr.M.P.No.4111/2017 filed by PW1 Samikannu u/s.311 Cr.P.C. before learned Principal Sessions Judge, Cuddalore to summon 4 Smt.Chinnapillai as Court Witness.
09.10.2017 Common order – C.M.P.Nos.4100/2017 allowed and Smt.Chinnpillai to be examined as Prosecution witness. Cr.M.P.No.4111/2017 dismissed. 27.10.2017 Cr.O.P.No.22051/2017 and Cr.M.P.No.12950/2017 dismissed by Hon'ble High Court of Madras upholding the common order passed by learned Principal Sessions Judge, Cuddalore.
08.12.2019 PW.49 Chinnapillai was examined.
27.09.2017 W.P.No.25903/2017 under Article 226 of Constitution of India filed by advocate Sh.P.K.Illavarasan before Hon'ble High Court. 20.12.2017 W.P.No.493/2018 and 592/2018 filed by G.Muthukumaran, advocate 5 before Hon'ble High Court. Stay was granted by Hon'ble High Court.
27.06.2019 Final Order passed in W.P.Nos.25903/2017, 493/2018, 592/2018 and related WMP Nos.
18.12.2017 Cr.M.P.No.5601/2017 in S.C.No.185/2019 before learned Principal Sessions Judge, Cuddalore (Cr.M.P.No.13/2020 in S.C.No.03/2019 before Special Court for Trial of SC/ST Act cases, Cuddalore) filed by P.W.1 Sammikannnu for addition of charges against A.14 6 Sh.Tamilmaran and A.15 Sh.Sellamuthu U/S. 3(2)(i) of SC/ST Act, 1989.
13.02.2020 Learned Special Court of SC/ST Act, Cuddalore ordered for addition of charges u/s.3(2)(i) of SC/ST Act, 1989. Appeal in the same is before this Hon'ble Court.
7 26.06.2019 Cr.M.P.NO.5500/2019 was filed by A4 Ayyasamy to recall PW14 Amarvathy and it is still pending.
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4. It is further submitted that the Principal District and Sessions Court, Cuddalore, framed charges against the accused persons on 14.07.2017. The examination of witnesses commenced on 28.07.2017 and the details are as follows:
Sr. Name PW LW Gist Date of
No. (S/Sh./Smt.) No. No. Examination
1. Samikannu 01 01 Supported Prosecution 28.08.2017
S/o Chellakannu
2. Velmurugan 02 02 Supported Prosecution 28.08.2017
S/o Samikannu
3. Palanivel 03 03 Supported Prosecution and 28.08.2017
S/o Samikannu Hostile during cross
examination by A4 Ayyasamy
4. Lalitha 04 09 Supported Prosecution 29.08.2017
W/o. Paneer Selvam,
SRO Office
5. Muniyappan 05 10 Supported Prosecution 29.08.2017
S/o Chinnaiyan Pillai
SRO Office
6. Srinivasan 06 07 Hostile 29.08.2017
S/o Selvaraj
7. Ashok Kumar 07 08 Hostile 29.08.2017
S/o Ramalingam
8. Venkadachalapathy @ 08 11 Supported Prosecution 30.08.2017
Venkatesh
S/o. Samikannu
9. Asokan 09 27 Hostile 06.09.2017
S/o.Vaidialingam
10. Janakiraman 10 28 Hostile 06.09.2017
S/o.Ranganathan
11. Chandra Sekran 11 30 Hostile 06.09.2017
S/o.Govindasamy
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Sr. Name PW LW Gist Date of
No. (S/Sh./Smt.) No. No. Examination
12. Narayana Samy 12 31 Hostile 06.09.2017
S/o.Prasuraman
13. Shiva bala Gangadharan 13 32 Hostile 06.09.2017
S/o.Rajangam
14. Pattusamy 14 21 Hostile 06.09.2017
S/o.Thangaraj
15. Thamizharasi 15 22 Hostile with regard to A4 and 06.09.2017
W/o.Mayavel A9
16. Amravathi 16 24 Hostile 12.09.2017
W/o.Ramachandran
17. Paneer Selvam 17 18 Supported Prosecution 12.09.2017
S/o.Kothandaraman
18. Venkatesan 18 25 Hostile 12.09.2017
S/o.Kaliaperumal
19. Kasinathan 19 33 Hostile 12.09.2017
Sa/o.Kathirvel
20. Mayavel 20 23 Supported Prosecution 12.09.2017
S/o.Logidasan
21. Arumugam 21 35 Eye Witness, Statement 13.09.2017
S/o.Muthuvel u/s.164 Cr.P.C.was recorded,
but turned Hostile
22. Seyatharasan 22 36 Statement u/s.164 Cr.P.C. was 13.09.2017
S/o.Samikannu recorded but turned hostile
regarding kidnapping of
Kannagi.
23. Saroja 23 37 Statement u/s.164 Cr.P.C.was 13.09.2017
W/o.Raju recorded but turned hostile.
She identified Ayyasamy and
other accused during IT
parade but turned Hostile
regarding kidnapping of
Kannagi.
24. Indrani 24 38 Statement u/s.164 Cr.P.C.was 13.09.2017
W/o.Viswanath recorded but turned hostile.
She identified Ayyasamy and
other accused during IT
parade but turned Hostile
regarding kidnapping of
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Crl.A. No.184 of 2020
Sr. Name PW LW Gist Date of
No. (S/Sh./Smt.) No. No. Examination
Kannagi
25. Shivasankar 25 40 Hostile 13.09.2017
S/o. Kliaperumal
26. Subramani 26 42 Statement u/s.164 Cr.P.C. 14.09.2017
S/o.Thangavel was recorded but turned
hostile
27. Arumugham 27 43 Hostile 14.09.2017
S/o.Thangavel
28. Gopal @ Chettiar 28 48 Hostile 14.09.2017
S/o.Rajalingam
29. Anbazhagan 29 54 Supported Prosecution 15.09.2017
S/o.Annamalai
30. Prabhu 30 49 Hostile 15.09.2017
S/o.Kathirvel
31. Velmurugan @ Velu 31 53 Hostile 15.09.2017
S/o.Subramani
32. Asokan 32 60 Statement u/s.164 Cr.P.C. was 18.09.2017
S/o.Kuppusamy VAO recorded and he supported the
Prosecution case
33. Kannadasan 33 56 Hostile 18.09.2017
S/o.Thagarasu
34. Jayaraman 34 62 Statement u/s.164 Cr.P.C.was 18.09.20
S/o.Govindasamy VAO recorded and he supported the
Prosecution case.
35. Geetha 35 57 Supported Prosecution 18.09.2017
W/o.Paneerselvam
36. Illanijiyam 36 58 Hostile 18.09.2017
S/o.Kasinathan
37. Arjunan 37 59 Hostile 18.09.2017
S/o.Kaliaperumal
38. Sundara Pandian 38 66 Supported Prosecution 19.09.2017
S/o.Subbaiah, then Head
Constable
Virudhachalam PS.
39. Ramamurthy 39 67 Supported Prosecution 19.09.2017
S/o.Ulaganathan then
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Sr. Name PW LW Gist Date of
No. (S/Sh./Smt.) No. No. Examination
Head Constable
Virudhachalam PS.
40. Anthony Samy 40 75 Hostile 20.09.2017
S/o.Soosai Rathinam
41. Anwar Baig 41 70 Hostile 20.09.2017
S/o.Kabar Baig
42. Ramalingam 42 71 Hostile 20.09.2017
S/o.Azhagan then SI
Virudhachalam PS.
43. Krishanamurthy 43 73 Hostile 20.09.2017
S/o.Chandrakesan then
Gr.I PC Virudhachalam
PS
44. Dhanabal 44 74 Supported Prosecution 20.09.2017
S/o. Vadivel then SI
Avinankudi PS
45. Rajendran 45 78 Recorded 164 Cr.P.C. 21.09.2017
S/o.Rajangam then statement of witnesses and
Judicial Magistrate supported Prosecution case
(Padaiyachi)
46. Ravindran then Judicial 46 79 Conducted IT Parade of the 21.09.2017
Magistrate, Tambaram accused persons in Central
(Thevar) Prison, Chennai and supported
Prosecution case.
47. K.Rajendran 47 77 Hostile 21.09.2017
S/o.V.Kannan
48. Ari Shankar 48 72 Supported Prosecution 21.09.2017
S/o.Krishnan then HC
Virudhachalam PS
(Pattinavar)
49. Chinnapillai 49 -- 08.12.2017
W/o.Samikannu
50. K.Subbian 80 To be examined
Inspector of Police
CBI/SCB/Chennai
54. V.T.Nandakumar 81 To be examined
DSP/CBI/SCB/
Chennai
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5. Learned Special Public Prosecutor (CBI cases) submitted that a Special Court for SC / ST (Prevention of Atrocities Act), Cuddalore, was newly constituted and on 18.12.2019, the case was transferred to the Special Court. In this case, so far 49 witnesses have been examined and only two investigating officers are remaining to be examined.
6. From the evidence of P.W.32, K.Ashokan, Village Administrative Officer, Kuppanatham village, it is clearly established that the appellants coerced P.W.32 in preparing false extra judicial confession of Duraisamy [A1] (Ex.P.9), following it with a false complaint Ex.P.11 as against 8 people including the 2nd respondent herein and 2 others who belong to SC Community. PW.32, in his evidence before the trial Court, admitted that the complaint (Ex.P.11) is a created document and false extra judicial confession of Duraisamy [A1], (Ex.P.9) was prepared. P.W.32 was pressurized by the appellants, made to copy and submit the records in his handwriting which was earlier prepared by the Viruthachalam Police and the same confirmed by P.W.32 in his 164 Cr.P.C. statement before the Chief Judicial Magistrate, Chengalpet. Both the extra judicial confession and the FIR were used in evidence projected in the charge sheet, taken on record as P.R.C.No.18 of 2003 http://www.judis.nic.in 11/28 Crl.A. No.184 of 2020 and filed before the Judicial Magistrate, Viruthachalam.
7. The learned Senior counsel for the appellants submitted that P.W.1 - Swamikannu and his group are inimically disposed against the appellants. They have been making wide allegations against the appellants. In continuation to the same, they have given an exaggerated version to the respondent / CBI and they are motivated witnesses. With venom, the petition has been filed before the trial Court belatedly without giving any reason. The trial Court failed to consider these aspects, the preparation of F.I.R would not amount to creation of false evidence. F.I.R is nothing but written form of statement / complaint given to the police which was registered. If at all there is any factual discrepancy in the F.I.R, at the most, it can be stated that there is some flaw in the investigation and no way it can be said that it is a creation and fabrication of false evidence. In this case, no statements were recorded under oath which was throttled, falsely recorded. The appellants are already facing trial for offences under Sections 3 (2) (i) of SC / ST (POA) Act. He further placed reliance on the judgment of Apex Court in the case of P.Kartikalakshmi Vs. Sri Ganesh and another reported in (2017) 3 SCC 347, wherein the Apex Court had summarized the principles and held that alteration of charge under Section 216 Cr.P.C., is the exclusive right of the Court, neither the defacto complainant nor the accused nor http://www.judis.nic.in 12/28 Crl.A. No.184 of 2020 the prosecution can seek addition or alteration by filing any application as a matter of right. The Senior Counsel further relied on the decision in Central Bureau of Investigation Vs. Karimullah Osan Khan reported in (2014) 11 SCC 538 and made emphasis on para 16 and 17, which is extracted below:-
“13. The Privy Council, as early as in Thakur Shah v. Emperor AIR 1943 PC 192, spoke on alteration or addition of charges as follows :
“The alteration or addition is always, of course, subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred.”
14. Section 216 CrPC gives considerable powers to the Trial Court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add any charge, subject to the conditions mentioned therein. The expressions “at any time” and before the “judgment is pronounced” would indicate that the power is very wide and can be exercised, in appropriate cases, in the interest of justice, but at the same time, the Courts should also see that its orders would not cause any prejudice to the accused.”
8. Learned Special Public Prosecutor submits that occurrence took place http://www.judis.nic.in 13/28 Crl.A. No.184 of 2020 on 08.07.2003, wherein two persons were administered poison and done to death and their bodies were burnt. These facts were known to the Inspector of Police, Viruthachalam, who visited the scene of occurrence on the same day. Further, Chinnamal mother of Murugesan, made complaint to the respondent police on the same day, which was not registered. Later only on 17.07.2013 complaint was registered against 8 persons in Crime.No.356 of 2003 by the Sub-Inspector of Police [A.14] and investigation was carried out by the Inspector of Police [A.15], who are the appellants herein. He further submitted that some of the accused filed a discharge petition which came to be dismissed and against which, filed revision petition in Crl.R.C.No.716 of 2015. This Court by order dated 01.06.2017 dismissed the Criminal Revision Petition and gave a direction to the trial Court to dispose of the S.C.No.185 of 2010 within a period of four months. In yet another proceeding in W.P.No.9681 of 2010, the First Bench of this Court, by order dated 17.12.2014, directed the trial Court to conclude the trial within a period of one year. Similarly, in another proceedings, the Division Bench of this Court in W.P.No.25903 of 2017 had given a direction for protection of the witnesses and also re-iterated the earlier orders of this Court to complete the trial within the specified time. These directions have been given years before. Despite the same, the accused in this case, by filing one petition or other, have been successfully dragging on the trial. This appeal is http://www.judis.nic.in 14/28 Crl.A. No.184 of 2020 yet another ploy to drag on the proceedings. On perusal of materials, the trial Court had given a reasoned order which need not be inferred with. Further, he sought a direction to the trial Court to complete the trial within a specified time.
9. The 2nd respondent / de facto complainant filed a counter along with typed set of papers. The defacto complainant was initially shown as A7 in Crime No.356 of 2003 and investigated by the appellants herein. The 2nd respondent / de facto complainant along with his group were arrested and they were in confinement. The appellants herein who are the Sub-Inspector of Police and Inspector of Police of Viruthachalam Police Station were aware about the occurrence on 08.07.2003. In fact, both the appellants visited the scene of occurrence and made observations and enquiry and thereafter, at the instance of the dominant community people, they left the scene of occurrence to give a quietus to the occurrence. Later when the local Media and the press started to highlight the happenings, the appellants made it appear that the case has been registered and investigation was done in a proper manner. Four persons from the dominant community and four persons from the uppressed community were shown as an accused in Crime No.356 of 2003. The daughter of A1 and the son of 2nd respondent who were studying together in Annamalai University, were forcibly administered poison, done away, for the sole reason that they both http://www.judis.nic.in 15/28 Crl.A. No.184 of 2020 belong to different community and loved eachother, more particularly, since the deceased Murugesan hailed from SC community which was not acceptable by the parents and clan of Kannagi. Hence, both were torched and forcibly administered poison and done to death and thereafter, to screen the offence and to destroy the evidence, the bodies of both Murugesan and Kannagi were burnt, nobody was informed and thereafter, on 17.07.2003, based on the extra judicial confession given by A1 in this case, the VAO lodged the complaint and produced the accused. Thereafter, the case in Crime No.356 of 2003 for offence under Sections 147, 302, and 201 IPC came to be registered and investigated by the appellants herein.
10. P.W.32, K.Ashokan, Village Administrative Office, Kuppanatham village, in his evidence, had clearly deposed that producing of A1 and extra judicial confession is a stage mannered one, created at the instance of the appellants herein, P.W.32 Village Administrative Officer was forced, compelled to write what was prepared earlier in his handwriting and submit to them. He admits that on the day of complaint i.e. 17.07.2003, he was under
Suspension. Added to it, P.W.1 Samikannu father of Deceased Murugesan, P.W.15 Tamizharasi sister of the deceased Murugaesan, P.W.49 - Chinnapillai mother of the deceased Murugesan and wife of P.W.1, all informed about the http://www.judis.nic.in 16/28 Crl.A. No.184 of 2020 occurrence. They lodged a complaint to the appellants on 08.07.2003 which was refused and they were chased away from the police station. Further they were threatened, that they would be also included as accused in this case. As stated, P.W.1 was made as an accused in Crime No.356 of 2003. Thereafter, only on the intervention of this Court, P.W.1 and his relatives could be saved.
The appellants, created and projected a extra judicial confession, forced P.W.32 to write the complaint and registered the complaint Ex.P.9 and F.I.R – ExP.11. They have created forged and fabricated documents with the sole purpose to rope in P.W.1, Illaiyaperumal, Kannadasan and Samikannu who all belong to SC community and to save the person from other group. Innocent persons were falsely implicated in this case by creating false evidence. He further relied upon the decision of Ratanlal Vs. Prahlad Jat and Others reported in (2017) 9 SCC 340 and Arumugam Servai Vs. State of Tamilnadu, reported in 2011 (6) SCC 405, in support of his contention further prayed that occurrence took place in the year 2003 and it is almost 17 years from the date of occurrence, the case is being delayed and protracted for one reason or other.
The 2nd respondent had to fight it out at each stage to get justice and prays for dismissal of the appeal with a direction to conclude the trial within a time bound manner.
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11. On perusal of materials, it is seen that the occurrence took place on 08.07.2003 and a complaint came to be registered only on 17.08.2003 after a delay of 10 days. The case in Crime No.356 of 2003 for offence under Sections 147, 302 and 201 IPC was initially registered and investigated by the appellants herein who are the Sub Inspector of Police [A.15] and the Inspector of police, [A.14], Virudhachalam Police Station, within whose jurisdiction the occurrence had taken place. In this case, the two youngsters, namely, Murugesan and Kannagi were done to death and their bodies were burnt with a sole intention to destroy evidence. The case initially projected by the appellants is that as though Duraiswamy [A1] had given a confession to K.Ashokan P.W.32 Village Administrative Officer and terming it as an extra judicial confession, F.I.R has been registered in this case. Four persons from each group have been made as an accused with an intention to close the case and thereby both the groups go scot-free from committing two murders. Some of the accused, who belong to suppressed community, had approached this Court and this Court directed transfer of investigation and directed CBI to investigate the case and thereafter, CBI, during investigation, had collected materials against 15 persons, who had participated in the commission of offence. As far as these appellants are concerned, they are arrayed as A.14 and A.15, they have been charged for creating false evidence.
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12. As stated above for one reason or other, the above case has been protracted, despite the directions of the Division bench and Single Bench of this Court to complete the trial within a certain period. The time stipulated by this Court already elapsed, but, still the case is pending.
13. The petition filed by the 2nd respondent is maintainable as held by Apex Court reported in 2016 [6] SCC 105 [Anant Prakash Sinha Vs. State of Haryana and another], wherein it is held that if there is defect or something is left out on material available on record and charges have left out to be framed, the trial Court has authority to alter the charge. The only obligation is that no prejudice is caused to the accused.
14. In this case, on the materials brought on record, it is necessary that charges have to be altered and by altering the charges no prejudice would be caused to the appellants. The gravamen of charge under Section 218 and 3 (2) (1) are almost identical. The only qualification under section 3 (2)(1) is that the false evidence is against any member of schedule caste community. In this case, admittedly the respondent and other two persons namely Illaiyaperumal and Kannadasan are from schedule caste community who were falsely made as http://www.judis.nic.in 19/28 Crl.A. No.184 of 2020 accused in Crime No.356 of 2003 based on the alleged extra judicial confession.
15. P.W.32 had clearly stated the manner in which Ex.P.9 and Ex.P.11 came into existence. Likewise P.Ws'.15 & 49 have clearly stated about they approaching the appellants herein, for lodging the complaint on the murderous death of Murugesan to the appellants herein on 08.07.2003 which was not entertained and they were chased away, threatened if they further pursue, they would be made as accused. Added to it, P.W.1 and other two persons of his clan were made as accused in Crime No.356 2003 for a major and grievous offence under Section 302 IPC. Thus the gravamen of charge under Section 217, 218 IPC and corresponding charge of 3 (2) (1) in the SC / ST Act are one and the same. Further Section 20 of SC / ST Act over rides other laws. In this case by altering the charge the ingredients are couched with a qualification, hence there is no prejudice caused to the appellants.
16. Though citation relied on by the learned counsel for the appellants in P.Kartikalakshmi Vs. Sri Ganesh and another reported in (2017) 3 SCC 347, the judgment was delivered on August 12, 2014. Thereafter, the judgment reported in (2016) 6 SCC 105 [Anant Prakash Sinah @ anant sinah Vs. State http://www.judis.nic.in 20/28 Crl.A. No.184 of 2020 of Haryana and another] was delivered on 04.03.2016. For the sale of clarity the observation made therein at para 18 is extracted here:-
“16. From the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC.”
17. In view of the same, the judgment of Anant Prakash Sinah has to be followed which is at a later point of time. This Court is consistently following the same.
18. This Court in the case of K.Ravichandran Vs. Superintendent of http://www.judis.nic.in 21/28 Crl.A. No.184 of 2020 Police, Erode reported in 2019 (2) LW 313 following the Anant Prakash Sinah @ anant sinah Vs. State of Haryana judgment had held that though it is an exclusive domain for the Court to alter or add any charge, it is always open to the prosecution or the victim to pin point those materials before this Court to enable the Court to take the decision under Section 216 Cr.P.C.
19. The Code of criminal procedure is only a procedure code devised to subserve the ends of justice and not to frustrate them on mere technicalities. On these principles the Apex Court in the case of Shanthakumari Vs. State of Jammu and Kashmir reported in (2011) 9 SCC 234 has held as follows:
“17.Like all procedural laws, the Code of Criminal Procedure is devised to subserve the ends of justice and not to frustrate them by mere technicalities. It regards some of its provisions as vital but others not, and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby. It places errors in the charge, or even a total absence of a charge in the curable class. That is why we have provisions like Sections 215 and 464 in the Code of Criminal Procedure, 1973.”
20. In view of the same, this Court finds that alteration of charges by the trial Court on the petition of the 2nd respondent is permissible and the order of http://www.judis.nic.in 22/28 Crl.A. No.184 of 2020 the trial Court in Crl.M.P.No.5601 of 2017 is perfectly correct, does not need any interference. In view of the same, the order of the trial Court is sustained and the appeal filed by the appellants is hereby dismissed.
21. The trial Court is reminded, the duty cast on it in completing the trial within specified time, more so in the cases of SC & ST Act. The Apex Court in the case of State of U.P. Vs. Shambu Nath Singh and Others reported in JT 2001 (4) SC 319, has given guidelines, the relevant portion is extracted herein:-
“Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with immunity. Even when witnesses are present cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a special reason for bypassing the mandate of Section 309 of the Code.
If any court finds that the day to day examination of witnesses mandated by the legislature cannot be complied with due to the non co-operation of accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party http://www.judis.nic.in 23/28 Crl.A. No.184 of 2020 who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case.) The time frame suggested by a three-Judge Bench of this court in Rajdeo Sharma vs. State of Bihar {1998 (7) SCC 507} is partly in consideration of the legislative mandate contained in Section 309(1) of the Code. This is what the Bench said on that score:
The Code of Criminal Procedure is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses in spite of repeated opportunities. Section 309(1) Cr.P.C. supports the above view as it enjoins expeditious holding of the proceedings and continuous examination of witnesses from day to day. The section also provides for recording reasons for adjourning the case beyond the following day. In Rajdeo Sharma (II) vs. State of Bihar {1999 (7) SCC 604} this Court pointed out that the trial court cannot be permitted to flout the mandate of Parliament unless the court has very cogent and strong reasons and no court has permission to adjourn examination of witnesses who are in attendance beyond the next working day. A request has been made by this Court to all the High Courts to remind all the trial judges of the need to http://www.judis.nic.in 24/28 Crl.A. No.184 of 2020 comply with Section 309 of the Code. The request is in the following terms:
We request every High Court to remind the trial judges through a circular, of the need to comply with Section 309 of the Code in letter and spirit. We also request the High Court concerned to take note of the conduct of any particular trial judge who violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as the law permits”
22. The occurrence has taken place in the year 2003 and 17 years have since passed and till now the case is at the stage of trial for examination of P.W.50 and 51 the Investigating officers. Despite the direction of this Court, on earlier three occasions, to complete the trial within a stipulated period, the same had not been complied with. The approach of the trial Court in permitting protraction of trial is deplorable. In view of the same, trial Court is directed to conduct trial on a day-to-day basis and complete the trial within a period of two months and render Judgment in S.C.No.3 of 2019 from the date of receipt of this order and to report compliance.
14.10.2020 http://www.judis.nic.in 25/28 Crl.A. No.184 of 2020 Internet: Yes Index : Yes/No Speaking/Non Speaking order bri http://www.judis.nic.in 26/28 Crl.A. No.184 of 2020 To
1.The Deputy Superintendent of Police, CBI, SCB, Chennai.
2.The Special Court for Trial of Cases SC/ST (POA) Act, Cuddalore Division, Cuddalore http://www.judis.nic.in 27/28 Crl.A. No.184 of 2020 M.NIRMAL KUMAR., J.
bri Pre-Delivery order in Crl.A.No. 184 of 2020 14.10.2020 http://www.judis.nic.in 28/28