Madras High Court
Krishnammal vs The Revenue Divisional Officer on 18 March, 2008
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/03/2008 CORAM THE HONOURABLE Mr.JUSTICE A.SELVAM Criminal Revision Case No.653 of 2007 Krishnammal ... Petitioner/LW2 Vs. 1.The Revenue Divisional Officer, Tuticorin, Tuticorin District. ... Respondent/complainant 2.M.Somasundaram 3.Jeyasekaran 4.Joseph Raj 5.Pichaiah 6.Chellathurai 7.Veerabagu 8.Sivasubramanian 9.Subbiah 10.Rathinaswamy 11.Balasubramanian ... Respondents/accused Criminal Revision Case has been filed under Section 397 read with 401 of the Code of Criminal Procedure, against the order dated 30.07.2007 passed in Cr.M.P.No.268 of 2007 in S.C.No.223 of 2006 by the Additional Sessions cum Fast Track Court No.I, Tuticorin. !For petitioner ... Mr.R.Anand ^For 1st respondent ... Mr.L.Murugan, Government Advocate, (Criminal Side) For respondents ... Mr.K.Jeganathan 2 to 11 :ORDER
Challenge in this criminal revision case is to the order dated 30.07.2007 passed in Criminal Miscellaneous Petition No.268 of 2007 in Sessions Case No.223 of 2006 by the Additional Sessions cum Fast Track Court No.I, Tuticorin.
2.The revision petitioner herein as petitioner has filed the present petition under Section 193 read with 319 of the Code of Criminal Procedure, praying to include the Sub-Inspector by name Ramakrishnan as one of the accused, wherein it has been stated that the petitioner is the wife of the deceased by name Vincent. The husband of the petitioner has been murdered in police lockup. The Sub-Inspector of Police by name Ramakrishnan has also involved in the occurrence. The petitioner and other witnesses have stated in their statements, given before the Revenue Divisional Officer to the effect that the Sub-Inspector of Police, Ramakrishnan has also attacked the husband of the petitioner. But, unfortunately, the Sub-Inspector of Police by name Ramakrishnan has not been included in the final report. Under the said circumstances, the present petition has been filed so as to include him as one of the accused.
3.On the side of the first respondent, a counter has been filed, wherein it has been specifically stated that only after taking evidence about the complicity of the Sub-Inspector by name Ramakrishnan, he can be included as one of the accused under Section 319 of the Code of Criminal Procedure and therefore, the present petition is not legally maintainable and altogether the same deserves dismissal.
4.The Court below, after scrutinising the rival contentions raised on either side, has dismissed the petition mainly on the ground that under Section 193 of the Code of Criminal Procedure, the Sub-Inspector by name Ramakrishnan, cannot be included as one of the accused. Against the order of dismissal, the present criminal revision case has been filed at the instance of the petitioner.
5.Before perpending the rival submissions made by either counsel, it has become indefeasible to narrate something about the factual aspects relating to Sessions Case No.223 of 2006. The specific case of the prosecution is that the husband of the petitioner by name Vincent has been taken to Thalamuthu Nagar Police Station and the present accused have attacked him and due to overtacts committed by the accused, the said Vincent has passed away. The prosecution has shown ten persons as accused. After investigation, a final report has been filed and the same has been committed to the Court of Sessions, Tuticorin Division and subsequently transferred to the file of the Court below. In the Court below, the present petition has been filed so as to include the said Sub- Inspector by name Ramakrishnan as one of the accused.
6.The learned counsel appearing for the revision petitioner has repeatedly contended that the husband of the revision petitioner by name Vincent, has been illegally taken to Thalamuthu Nagar Police Station and detained there and all the police personnel including the Sub-Inspector of Police by name Ramakrishnan, have attacked him and thereby caused fatal injuries on his person and he subsequently succumbed to injuries and the concerned Revenue Divisional Officer has conducted a detailed enquiry and he has come to a definite conclusion that the police personnel are solely responsible for the death of the said Vincent, but, the Revenue Divisional Officer has failed to include the Sub-Inspector of Police by name Ramakrishnan as one of the accused and in order to include him as one of the accused, the present petition has been filed, but, the Court below without considering the available records, has erroneously dismissed the petition and therefore, the impugned order passed by the Court below is liable to be set aside and the petition is liable to be allowed.
7.Per contra, the learned counsel appearing for the respondents 2 to 11 has sparingly contended that as per the provision of Section 193 of the Code of Criminal Procedure, the Sub-Inspector of Police by name Ramakrishnan cannot be included as one of the accused at this stage and the Court below after evaluating the rival contentions raised on either side, has rightly dismissed the petition and therefore, the impugned order passed by the Court below is not liable to be interfered with.
8.The learned counsel appearing for the respondents 2 to 11 has accentuated the Court to look into the Section 401 (1) & (2) of the Code of Criminal Procedure. Before analysing the argument advanced by the learned counsel appearing for the revision petitioner, the Court has to look into Sections accited by the learned counsel appearing for the respondents. Section 401(2) of the Code of Criminal Procedure reads as follows;
"No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence."
9.The provision of Section 402 of the Code of Criminal procedure, should be read along with Section 401(1) of the said Code, wherein it is stated as follows;
"In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court in its discretion exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392."
10.From the close reading of the provision of Sub-sections (1) & (2) of Section 401, the Court can easily discern that the High Court by using its discretion can call for any record so as to pass suitable order by exercising its power of revision and the order passed under Section 401(1) shall not be prejudice to the accused or other person and he should be given an opportunity of being heard either personally or by pleader.
11.Here, the legal position is entirely different from the legal position involved in Sub-section (1) & (2) of Section 401 of the said Code. Therefore, Sub-sections (1) & (2) of Section 401 of the said Code, have no application to the present case.
12.The only legal point that comes up for consideration in the present criminal revision case is;
"Whether a Court of Session can summon a person whose complicity in the commission of crime can prima facie be gathered from the material available on record?"
13.The Court below has dismissed the petition mainly on the ground that under Section 193 of the Code of Criminal Procedure, the Sub-Inspector by name Ramakrishnan, cannot be included as one of the accused and at the most, he can be included under Section 319 of the Code of Criminal Procedure, on the basis of evidence let in on the side of the prosecution.
14.Before analysing the above legal aspect, it would be more useful to look into the alleged complicity of the said Sub-Inspector in the commission of crime. In fact, the Revenue Divisional Officer has examined all the connected witnesses. The revision petitioner herein has filed an affidavit to the Revenue Divisional Officer, wherein it has been stated that after knowing the fact that her husband has been taken by the police, she has gone to police station and enquired her husband and he told that through out night, he has been beaten by the Sub-Inspector by name Ramakrishnan and other Police Constables. The witnesses viz., Damodharan, Sankaran, Muthuraj, Iyappan, Muthu and Ramakrishnan have also stated in their affidavits to the effect that the Sub- Inspector by name Ramakrishnan has also involved in the alleged commission of offence. Therefore, it is pellucid that the Sub-Inspector by name Ramakrishnan has also involved in the crime.
15.As stated earlier, the Revenue Divisional Officer has conducted a detailed enquiry and submitted his report, wherein it has been clearly stated that the deceased has sustained 38 injuries and further it is stated that the deceased has passed away while he has been in police lockup and only due to attacks made by the police personnel, the deceased has passed away. But, unfortunately, the Sub-Inspector by name Ramakrishnan, has not been arrayed as one of the accused.
16.Even at the risk of jarring repetition the Court would like to point out that the only legal question involves in the present criminal revision case is;
"Whether the Sub-Inspector by name Ramakrishnan can be included as one of the accused by invoking Section 193 of the Code of Criminal Procedure?"
17.The learned counsel appearing for the revision petitioner has accited various decisions. The first and foremost decision is reported in 1993 Supreme Court Cases (Criminal) 470 (Kishun Singh and others Vs. State of Bihar) wherein the Honourable Apex Court has held that once the Court takes cognizance of the offence, it becomes the Court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the Court's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance.
18.The second decision is reported in 2004 (13) Supreme Court Cases 9 (Dharam Pal and others Vs. State of Haryana and another) wherein the Larger Bench of the Honourable Apex Court has held that the Sessions Court has power under Section 193 of the Code of Criminal Procedure to take cognizance of the offence and summons other persons whose complicity in the commission of the trial can prima facie be gathered from the material available on record. In this decision, the view taken in 1993 Supreme Court cases (Criminal) 470 (Kishun Singh and others Vs. State of Bihar) has been accepted by the Larger Bench of the Honourable Apex Court.
19.The third decision is reported in 1995 Supreme Court Cases (Criminal) 306 (Nisar and another Vs. State of Uttra Pradesh) wherein also the Honourable Apex Court has held that once the case is committed to the Court of Session, bar under Section 193 is lifted and the Court of Session can summon any person whose complicity in the commission of the crime can prima facie be gathered from the material on record.
20.The fourth decision is reported in 1998 Supreme Court cases Criminal 1554 (Ranjit Singh Vs. State of Punjab) wherein also the Honourable Apex Court has held that the Court purporting to act under Section 319 need not wait till the entire evidence has been collected. If however the Sessions Judge notices from the materials produced the positive involvement of any person, he can invoke the inherent or revisional power of the High Court to summon such a person before the evidence stage.
21.From the cumulative effects of the decisions referred to supra, the Court can easily discern that;
(a) Once a particular case has been committed to the Court of Session, the bar created under Section 193 of the Code of Criminal Procedure is lifted and the Court of Session is having unfettered power to summon any person whose complicity in the commission of the crime can prima facie be gathered from the material on record.
(b)The Court of Session can invoke the inherent or revisional power of the High Court to summon a person whose positive involvement in a crime can be gathered from the material on record, before reaching the stage of evidence.
(c)Once the Court take cognizance of the offence a primordial duty is cast upon the Court to find out the real culprit and if the Court comes to a conclusion that besides the persons put up for trial by the police, some others are also involved in the commission of the crime, it is the duty of the Court to summon them to face trial along with the accused already named.
(d)As per the provision of Section 193 of the Code of criminal Procedure, the Court of Sessions is having unfettered power to summon any person whose involvement in the commission of crime is prima facie appeared from the available records.
22.In the instant case, it has already been stated that the revision petitioner and the other witnesses viz., Damodharan, Sankaran, Muthuraj, Iyappan, Muthu and Ramakrishnan, have clearly stated in their statements about the involvement of the Sub-Inspector by name Ramakrishnan in the commission of crime. But, unfortunately, the Revenue Divisional Officer has failed to include him as one of the accused and in order to rectify the error committed by the Revenue Divisional Officer and also to bring the Sub-Inspector of Police by name Ramakrishnan as one of the accused, the present petition has been filed by the revision petitioner. But, the Court below without looking into the correct legal position invovles in the present case, has erroneously dismissed the petition. Therefore, the dismissal order passed by the Court below is totally erroneous and the same is liable to be set aside and in view of the discussion made earlier, it is very clear that the argument advanced by the learned counsel appearing for the revision petitioner is really having subsisting force and whereas the argument advanced by the learned counsel appearing for the respondents 2 to 11 is sans merit.
23.In fine, this criminal revision case is allowed and the order passed in Criminal Miscellaneous Petition No.268 of 2007 in Sessions Case No.223 of 2006 by the Additional Sessions cum Fast Track Court No.I, Tuticorin is set aside and the petition filed in Criminal Miscellaneous Petition No.268 of 2007 in Sessions Case No.223 of 2006 is allowed and the Court below is directed to include the Sub-Inspector of Police by name Ramakrishnan as one of the accused in Sessions Case No.223 of 2006.
gcg To
1.The Additional Sessions Judge (Fast Track Court No.I), Tuticorin.
2.The Public Prosecutor, The Madurai Bench of Madras High Court, Madurai.
3.The Revenue Divisional Officer, Tuticorin, Tuticorin District.