Madras High Court
State Rep. By vs S.Sridhar on 23 November, 2022
Author: G.Ilangovan
Bench: G.Ilangovan
Crl.R.C.(MD).No.412 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.11.2022
CORAM
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.R.C.(MD).No.412 of 2021
State rep. By
Additional Superintendent of Police,
CBI/SCU.V/SC-II/New Delhi. ... Petitioner/Complainant
Vs.
1.S.Sridhar
2.K.Balakrishnan
3.P.Raghu Ganesh
4.S.Murugan
5.A.Samadurai
6.M.Muthuraja
7.S.Chelladurai
8.X.Thomas Francis
9.S.Veilmuthu ... Respondents/Accused
PRAYER : Criminal Revision Case filed under Section 397 r/w 401 of
Criminal Procedure Code, to call for the records pertaining to the order passed
in Crl.M.P.No.178 of 2021, dated 24.03.2021 on the file of the learned I
1/17
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD).No.412 of 2021
Additional District and Sessions Judge, Madurai and set aside the same and
also to direct the trial Court to add the charge against the accused 1 to 9 for the
offence under Section 120B of IPC and also add the charges for A1-u/s.182,
193, 211, 218 of IPC for 2 counts, for A3-u/s. 182, 193, 211, 218 of IPC for 2
counts, for A4-u/s.193, for 2 counts, for A6-u/s.182, 193, 211, 218 of IPC for
2 counts, for A8-u/s 201, 302 r/w 34 of IPC for 2 counts and also include add
the charges 2 to 6 and 8 for 2 counts.
For Petitioner : Mr.C.Muthu Saravanan
Special Public Prosecutor for CBI cases
For R1 : Mr.S.Sridhar R1, Party-in-person
For R2 : Mr.Sabbani Karbura Jothi
For R3 : Mr.R.Murugan
For R4 & R6 : Mr.G.Mariappan
For R5 : Mr.R.L.Dilipan Pandian for Mr.P.Rajkumar
For R7 : Mr.S.Siva Suriya Naraynan
For R8 : Mr.S.Muthumohan
For R9 : Mr.S.Sivakumar
ORDER
This Revision Case has been preferred against the order that was passed by the trial Court rejecting the petition, which was filed by the revision petitioner under Section 216 Cr.P.C. for addition or alteration of charges. 2/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021
2.The facts in brief:
The respondents are facing the following charges on the basis of the final report that was submitted by the revision petitioner before the concerned Court.
i) 1st Charge framed against the accused No.1 to 9 for the offence under Section 342 of IPC (2 counts),
ii) 2nd Charge framed against the accused No.1 to 7 & 9 for the offence under Section 201 of IPC,
iii) 3rd Charge framed against the accused No.4 for the offence under Section 182 of IPC,
iv) 4th Charge framed against the accused No.3 for the offence under Section 193 of IPC,
v) 5th Charge framed against the accused No.3 & 4 for the offence under Section 211 of IPC,
vi) 6th Charge framed against the accused No.3 & 4 for the offence under Section 218 of IPC,
vii) 7th Charge framed against the accused No.1 to 7 & 9 for the offence under Section 302 of IPC (2 counts),
viii) 8th Charge framed against the accused No.8 for the offence under Section 302 r/w 109 of IPC.3/17
https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 2.1. The above said charges were framed on 10.03.2021. For better understanding the revision petition, let me reproduce the entire proceedings and the order dated 10.03.2021, passed by the trial Court, read as follows:
“S.C.No.470/2020 – A1 to A9 produced. The counsel for the 1st accused represented that 2 days time alone given for perusing the documents. The copies for the 1st accused were given on 11.11.2020. In spite of a long duration, the 1st accused has not come forward to engage a counsel. It is the bounden duty of the parties to the case to perform their part of duty in the earliest possible opportunity inspite of lapse of several months after furnishing the copies, the 1st accused has not chosen to engage a counsel. Now the request on the part of the 1st accused to grant more time to peruse the documents inspite of several months under the guise of stating that he has engaged his counsel recently is not sustainable one. The counsel for A2 represented that the charges can not be framed during the pendency of 2 memos filed by the prosecution is pending. The counsel for 3rd accused represented that the copies of some documents have to be furnished and Cr.M.P.No.161/2021, u/s. 207 Cr.P.C. was filed and the same has been dismissed today. Cr.M.P.No. 165/2021, u/s. 227 Cr.P.C. for discharging the 3rd accused filed and dismissed. Without going through the copies of all 4/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 documents, the 3rd defendant could not have filed the petition u/s. 227 Cr.P.C. Therefore, the factum of filing the Cr.M.P.No.165/2021 itself indicates that the 3rd accused has gone through all the particulars in the case. The arguments of accused No.4, 5, 6 and 8 heard. No representation for Accused No.7 and 9. Therefore, it is deemed that the accused No.7 and 9 have also put forth their part of arguments in the case. It is argued that two memos filed by the prosecution wherein, permission for further investigation has been sought for. At the time of framing charges it is needless to expect the result of the order that would be passed in those memos. The charges can be framed only on the basis of available materials. The framing of charge can not be postponed for awaiting the documents that would be produced by the prosecution in case of order if any passed on those memos. Hence, the memos can be ordered for or against even after framing charges. Therefore, the pendency of the memos can never be a bar to frame charges. On perusal of records the accused 1 to 9 have been charge sheeted u/s 120 B IPC. The criminal conspiracy should have taken place prior taking the deceased persons from their shop. No materials available to frame charge u/s. 120 B IPC. On perusal of records and hearing the prosecution and A2 to 6 and 8. The charges u/s 342 (2 counts) IPC against A1 to 9, u/s. 201 IPC against A1 5/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 to A7 and A9, u/s. 182 IPC against A4, u/s. 193 IPC against A3, u/s. 211 and 218 IPC against A3 and A4, u/s. 302 r/w 34 (2 counts) IPC against A1 to A7 and A9 and u/s. 302 r/w 109 IPC against A8 framed and read over and explained to A1 to A9 and they denied the charges. When questioned A1 to A9 regarding the offences, they pleaded not guilty. Issue summons to L.W.1 – 5. Call on 17.03.2021. A1 to A9 Remand Extended till then. Objection for memos by then.” 2.2. After the above said order, Crl.M.P.No.178 of 2021 was filed by the prosecution on 17.03.2021, stating that the following charges were omitted to be framed and so the trial Court must add and alter the charges.
For A1 to A9 – U/s 120 B of IPC, For A1 – U/s. 182, 193, 211, 218 of IPC for 2 counts, For A3 – U/s. 182, 193, 211, 218 of IPC for 2 counts, For A4 – U/s. 193 of IPC for 2 counts, For A6 – U/s. 182, 193, 211, 218 of IPC for 2 counts, For A8 – U/s. 201, 302 r/w 34 of IPC for 2 counts.
That petition was heard and the following Docket order has been passed by the trial Court.
6/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 “Counter of A1, A3, A4 and A8 filed. A7 filed memo stating that A7 adopts the counter of A1. A5 and A6 filed memo stating that they are adopting the counter of A3. The counsel for A2 endorsed that A2 has adopted the counter of A3 and 4. The counsel for A9 submitted oral objections to this petition.
Heard both sides. This petition has been filed by the prosecution for framing additional charges that the charges u/s. 182, 193, 211 and 218 IPC have not been framed against A1, A3 and A6 and the charges against A4 u/s. 193 was not framed for 2 counts and charge u/s. 201, 302 r/w 34 IPC, were not framed against A8. It is contested by the accused persons that neither the prosecution nor the CBI can approach the court for altering or adding to charges. As per S.216 of Cr.P.C, the charges can be altered or added to at any time before pronouncement of the Judgment. If necessary the charges will be altered or added to at any time before pronouncement of the Judgment and the petition to that effect is totally unnecessary. Therefore it is held that this petition deserves to be dismissed at this stage.
In the result, the petition is hereby dismissed.” 7/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 The legality of this order is called in question by the revision petitioner in this matter.
3. Heard both sides.
4. A simple point has been raised. But the respondents argued at length by taking this Court to the facts and circumstances of this case to point out a fact that absolutely there is no possibility for any criminal conspiracy between the accused persons to cause murder of the deceased; they also taken a stand that some of additional charges that sought to be framed now are also barred under Section 195(1)(b) of Cr.P.C.
5. Per contra, the revision petitioner challenged the above said order on two grounds. The first ground is that the trial Court has recorded a finding that the prosecution has no right to file any petition under Section 216 Cr.P.C. to alter or add the charges. According to the revision petitioner, it is patently illegal in view of the subsequent Judgments of the Honourable Supreme Court against view in the case of P.Karthikalakshmi Vs. Sri Ganesh and another, 8/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 reported in (2017) 2 SCC (Cri) 84. Even though in the judgment of P.Karthikalakshmi's case, the right of the prosecution and the complainant are disputed as the case may be has been rejected out right. But in the judgment, which was rendered by the Honourable Supreme Court in the case of Anant Prakash Sinha Alias Anant Sinha Vs. State of Haryana and another, reported in (2016) 2 SCC (Cri) 525, it has been held that the informant or the prosecution has got right to inform the Court about the omission or alteration of the charges as the case may be.
6. It is further contended that the Honourable Supreme Court has rendered the Judgment in Anant Prakash's case on 04.03.2016, whereas, the Judgment in P.Karthikalakshmi's case was rendered on 12.08.2014. The Judgment of Anant Prakash's case has been uniformly followed by this Court also in the case of K.Ravichandran Vs. The Superintendent of Police, Erode District, Erode & Others, reported in 2019-2-L.W. (Crl.) 313, in the case of Sellamuthu and another Vs. State Rep. by Deputy Superintendent of Police, CBI, SCB, Chennai and another, in Crl.A.No.184 of 2020 dated 14.10.2020, in the case of Rajendran Vs. State rep. by The Inspector of Police, 9/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 Papanasam Police Station, Thanjavur District, in Crl.O.P.(MD).No.2635 of 2019 dated 19.03.2019. So According to the counsel for the revision petitioner, a patent illegality has been committed by the trial Court in rejecting the petition that was filed by the revision petitioner on the ground of maintainability. According to him, to this illegality extend, the matter must be remanded back to the trial Court by setting aside the order.
7. Per contra, it is contended on behalf of the respondent to the effect that the order is only an interlocutory in nature and the trial Court has not shut the door for either altering or adding of the charges. The concluding portion of the order clearly shows that it is only an interlocutory order and no prejudice or right is affected. It is also submitted that the P.Karthikalakshmi's case and Anant Prakash's case are clearly distinguishable in nature and the learned counsel for the respondents also took me to the possible prejudice that will be caused to the accused in the event of alteration or addition of new charges, since major portion of the trial process is also over.
8. It is also contended that ever since from the date of arrest, they are in 10/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 custody and they co-operating fully with the trial Court to complete the process of trial as directed by this Court repeatedly. According to the learned counsel for the respondents at the length of this time, it is not proper either for this Court or for the prosecution to seek alteration or addition of charges.
9. When these argument was advanced, the learned counsel for the revision petitioner would submit that even though the above said order has been passed, during the pendency of the trial process, further investigation was undertaken and supplementary final report has also been filed before the concerned trial Court. So in the light of the supplementary final report, it is the duty of the trial Court to alter or add appropriate charges. According to him, a direction may be issued to the trial Court in this regard.
10. So the question, which arises for consideration, is whether the revision itself is maintainable and whether the request that has been made by the revision petitioner can be complied.
11. No doubt that the concluding portion of the Docket order has not 11/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 shut the doors of the parties, since it is also stated that it is the duty of the Court to frame, add or alter the appropriate charges, even before pronouncement of judgment. That power cannot be stated that, it has been wrongly exercised. This shows that it is only an interlocutory order, against which, the revision will not lie.
12. This Court would have dismissed the revision on the question of maintainability itself. But, as I mentioned earlier, the counsel for the revision petitioner has stated that the trial Court has dismissed the petition filed by the prosecution on the ground of maintainability, questioning the very right of the prosecution to file this petition. When we read this order, we can say that the trial Court can finally disposed the matter in so far as the revision petitioner's right is concerned. On that ground, revision is very well maintainable, though not on the concluding portion of the order. The order of the trial Court can be split up into two parts.
13. As I mentioned earlier, the first part deals about the maintainability of the petition and the second part deals about the right and power of the Court 12/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 to act in this regard. In respect of the first portion of the order, even though it is not very explicit in the order, it is implied that the right of the revision petitioner to maintain the petition has been rejected.
14. Therefore, in the light of the latest judgment of the Honourable Supreme Court as well as the orders of this Court, it is seen that not only the prosecution, even the victim or the complainant got every right to maintain such a petition. That can be taken only as aiding or helping the Court as pointed out by this Court in the above said cited judgments.
15. Therefore, I am of the considered view that this portion of the order of the trial Court is liable to be set aside by observing that the petition that was filed by the revision petitioner is very well maintainable and the trial Court ought not to have dismissed the petition on that ground.
16. So far as the revision against the concluding portion of the Docket order is concerned, it is not maintainable. Since it is only an interlocutory order. Moreover, in the light of the supplementary final report that has been 13/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 filed by the prosecution, it is the duty of the Court to find out or decide whether any additional charges or alteration charges are required. No direction is required from this Court, since the trial Court is duty bound to take that point into account, for which, both parties may also given opportunity to put forth their points.
17. Even when the matter was heard, it was clarified to the parties to the effect that no positive direction will be given or issued by this Court to frame a particular charge, add or alter the charges, since the materials have not been placed before this Court and no additional ground has also been made in this regard in the revision. It is only a subsequent happening before the trial Court. So no direction is required in this regard also. The learned counsel for the respondents also pointed out the defect in the petition that was filed by the revision petitioner before the concerned Court. According to him, on going through the entire records, it was found that on 10.03.2021 itself, the trial Court has come to the conclusion that no charges under Section 120 B IPC can be framed, since no materials have been placed before this Court and that order was not challenged. But instead, the petition has been filed on 14/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 17.03.2021 to enter into the trial through back door. No doubt that by filing the above said petition, the revision petitioner wanted the trial Court to review the order that was passed on 10.03.2021. It is not permissible under law. Whatever it may be, we may not go into the above said technical issue, now in the changed scenario. I am of the considered view that the revision can be disposed of with the following orders.
1) The order of the trial Court that the petition filed by the revision petitioner under Section 216 Cr.P.C, is not maintainable, since it has no right, is set aside and it is clarified that the petition is very well maintainable.
2) So far as the concluding portion of the above said order is concerned, the revision is dismissed on the ground that it is only an interlocutory order.
3) In the light of the changed scenario and circumstances, on the basis of the filing of the supplementary final report, the trial Court may proceed in accordance with law, of course, by offering an opportunity to both sides and decide as to whether to add or alter the charges as the case may be. As observed above, it is the duty of the trial Court to decide 15/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 and proceed in accordance with law, in the light of the filing of the supplementary final report.
18. In the result, this revision petition is partly allowed to the extend as stated above.
23.11.2022 Index : Yes / No Internet : Yes / No TM Note: Issue Order copy on 24.11.2022.
To:
1.The I Additional District and Sessions Judge, Madurai.
2.The Special Public Prosecutor for CBI Cases, Madurai Bench of Madras High Court, Madurai.
3.The Superintendent of Prison, Central Prison, Madurai.
Copy to:
1.S.Sridhar, (1st Accused / 1st Respondent / Party-in-Person) Central Prison, Madurai.
Through the Superintendent of Prison, Central Prison, Madurai.
16/17 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).No.412 of 2021 G.ILANGOVAN,J.
TM Crl.R.C.(MD).No.412 of 2021 23.11.2022 17/17 https://www.mhc.tn.gov.in/judis