Rajesh @ Rajeshkumar v. State Rep.By

ORDER This petition has been filed to set aside the order in Crl.M.P.No.238 of 2021, dated 30.04.2021, passed under Section 319 of the Code of Criminal Procedure, thereby adding the petitioner as an accused in S.C.No.109 of 2014 on the file of the learned Additional District & Sessions Judge Fast Track Mahila Court, Tiruvarur.

¶2The case of the prosecution is that the first accused fell in love with the deceased. He used to pick the deceased from her work place and spend time with her. He was already married person. Subsequently, the deceased was fixed with one Gopi for marriage. Even then, the first accused continued to harbour his intentions to have sexual intercourse with her. When the deceased fiance went abroad on employment, the first accused devised a plan to have sexual intercourse with her.

¶3On 25.12.2012 at about 7.45 p.m., the first accused had picked the deceased in his motorcycle and stopped his motorcycle near the railway track stop signal at Tirupanaiyur and dragged the deceased to there. After consuming alcohol, he asked for sexual intercourse. When the deceased refused and tried to escape, the first accused had taken her near banyan tree and tied her hands and gagged her mouth with her shawal and committed rape on her and the deceased had strangulated with her shawl. Thereafter, the first accused thrown her body near by the railway track.

¶4On the complaint, the first respondent registered an FIR and after completion of investigation, filed final report for the offence under Sections 376, 302 and 301 of IPC, as against the first accused. It was taken cognizance by the trial Court and commenced the trial. While examining the third respondent as P.W.2, she deposed about the involvement of the petitioner along with the first accused. After chief examination of P.W.2, the third respondent filed an application under Section 319 of Cr.P.C., and the same was allowed and implicated the petitioner as second accused and issued summon. Aggrieved by the same, the petitioner filed this present petition.

¶5The learned Senior Counsel appearing for the petitioner submitted that there is absolutely no oral or material evidence to implicate the petitioner as an accused in this case. The third respondent filed petition for transfer of investigation before this Court in Crl.O.P.No.3792 of 2013 and this Court by an order dated 22.08.2013, dismissed the transfer petition and directed the first respondent to complete the investigation and filed final report within a period of two months. This Court observed that the said petition was filed merely on assumption that some other persons also would involve in committing murder. Therefore, this Court dismissed the petition for transfer of investigation.

5.1. He further submitted that after filing of final report, while it was pending for committal in P.R.C.No.5 of 2014, once again the third respondent filed petition before this Court in Crl.O.P.No.30262 of 2014 for seeking further investigation. It was also dismissed by this Court by an order dated 18.12.2014, on the ground that third respondent failed to make out any worthy point considering for further investigation. Once again, the third respondent filed petition before this Court in Crl.O.P.No.15127 of 2018 for direction to direct the trial Court to treat her statement to be given in S.C.No.109 of 2014 as her first statement. It was also dismissed by this Court by an order dated 11.06.2018 and observed that it is always open to the petitioner to give evidence before the trial Court and it is open to the trial Court to invoke Section 319 of Cr.P.C., if there are credible and reliable materials against the person who was not arrayed as an accused. Further, the third respondent did not even whisper about the documents which were marked as Ex.P.2 to Ex.P.7, while seeking transfer of investigation, further investigation and in the petition to treat her statement, to be recorded, as her first statement.

5.2. That apart, the trial Court without considering the procedure to be followed while invoking 319 of Cr.P.C., mechanically implicated the petitioner as an accused and issued summon. Even according to the prosecution, the third respondent was examined only in chief. The provision under Section 319 of Cr.P.C., can be invoked after evidence which means chief examination and cross examination of the witnesses. He also relied upon the judgment of the Hon'ble Supreme Court of India reported in (2023) 5 SCC 406 in the case of Juhru & ors Vs. Karim & ors., which reads as follows:- "17. It is, thus, manifested from a conjoint reading of the cited decisions that power of summoning under Section 319 Cr.P.C. is not to be exercised routinely and the existence of more than a prima facie case is sine quo non to summon an additional accused. We may hasten to add that with a view to prevent the frequent misuse of power to summon additional accused under Section 319 Cr.P.C., and in conformity with the binding judicial dictums referred to above, the procedural safeguard can be that ordinarily the summoning of a person at the very threshold of the trial may be discouraged and the trial court must evaluate the evidence against the persons sought to be summoned and then adjudge whether such material is, more or less, carry the same weightage and value as has been testified against those who are already facing trial. In the absence of any credible evidence, the power under Section 319 Cr.P.C. ought not to be invoked". Accordingly, the trial Court must evaluate the evidence against the person sought to summoned and then adjudge whether such material, more or less, carry the same weightage and value as has been testified against those who are already facing trial.

5.3. He also submitted that the petitioner had lost his opportunity to put forth his defence. If the investigation officer examined the petitioner, he would have placed all the defence before the investigating officer in order to disprove the allegations against him if any. Therefore, the order passed by the Session Court cannot be sustained and it is liable to be dismissed.

¶6Per contra, the learned Government Advocate (Crl. Side) submitted that this Court categorically observed in Crl.O.P.No.15127 of 2018, the grievance of the third respondent is that the investigation has not be conducted properly and that the investigation officer has left out the petitioner as an accused. Further, observed that it is open to the third respondent to give evidence before the trial Court and it is open to the trial Court to invoke the provision under Section 319 of Cr.P.C., if credible and reliable materials against the persons who was not arrayed as an accused.

6.1. He further submitted that after deposition of P.W.2 and after marking the documents Ex.P.2 to Ex.P.7 viz., the complaints which were lodged by the third respondent, the trial Court rightly implicated the petitioner as an accused and issued summon. Before adding an accused, the proposed accused cannot be given opportunity to put forth his defence. Only after adding as an accused, he can be given opportunity of defence. Therefore, it will not amount to violation of principal of natural justice. In support of his contention, he relied upon the judgment reported in (2014) 3 SCC 92 in the case of Hardeep Singh Vs. State of Punjab & ors., in which the the Hon'ble Supreme Court of India held that under Section 319 of Cr.P.C., a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) of Cr.P.C., the proceedings against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

6.2. He also relied upon the judgment of the Hon'ble Supreme Court of India reported in 2023 LiveLaw (SC) 576 in the case of Yahodhan Singh & ors Vs. The State of Uttar Pradesh & anr., which held as follows :- "32. Merely because in certain proceedings the persons summoned had been provided an opportunity of being heard cannot be the same thing as stating that it is a mandatory requirement or a precondition that at the time of summoning a person under Section 319 of the Cr.P.C., he should be given an opportunity of being heard. That is not the mandate of law inasmuch as Section 319 clearly uses the expression "to proceed" which means to proceed with the trial and not to jeopardise the trial at the instance of the persons) summoned by conducting a mini trial or a trial within a trial thereby derailing the main tral of the case and particularly against the accused who are already facing trail and who may be in custody. A person who is summoned in exercise of the power under Section 319 Cr.P.C. cannot hijack the trial so to say and deviate from its focus and take it to a tangent in order to bolster his own case in a bid to escape trial. All that is contemplated when a person is summoned to appear is to ascertain that he is the very person who was summoned and if any summoned person fails to appear on the given date. On the appearance of the summoned person, no procedure of an inquiry or opportunity of being heard is envisaged before been added as an accused to the list of accused already facing trial unless such a summoned person had already been discharged, in which event, en inquiry is contemplated as discussed above. Thus, the contention that a summoned person must be given an opportunity of being heard before being added as an accused to face the trial is clearly not contemplated under Section 319 Cr.P.C. It is also observed by this Court in Hardeep Singh that such a summoned person can assail a summoning order before a superior Court and will also have the right of cross examining the witnesses as well as can let in his defence evidence, if any."

6.3. Thus, it is clear that the later entry of a person summoned in exercise of power under Section 319 of Cr.P.C., is only to face the trial along with other accused. This being a salutary provision in order to meet the ends of justice, the same cannot be diluted by importing within the scope of Section 319 of Cr.P.C., principles of natural justice which in any case would be followed during the trial. Hence, he prayed for dismissal of the present petition.

¶7Heard the learned counsel appearing on either side and perused the materials placed before this Court.

¶8On perusal of the deposition given by the third respondent before the trial, she alleged that on 23.12.2012 at about 9.45 p.m., the petitioner along with the first accused had attempted to kidnap the deceased. It is also relevant to extract the portion of evidence of the third respondent who has examined as P.W.2 as follows:- @vdf;F 2 bgz; gps;isfs;/ Kjy; bgz; bgah; tp$p/ ,uz;lhtJ bgz; gps;is bgah; mk;K (v) tpkyh/ 23/12/2012k; njjp vd; kfs; jpUthU:hp cs;s kjh; nygpw;F ntiyf;F brd;wJ/ ,ut[ 09/00 kzpahfpa[k; vd; kfs; tPl;ow;F jpUk;g tutpy;iy/ ,ut[ 09/45 kzpf;F tPl;ow;F te;jJ/ Vd; nyl;lh tUfpwha; vd;W vd; kfsplk; nfl;nld;/ mjw;F vd; kfs; rd;dhey;Y}hpy; vd; kfs; g!; Vw epd;wnghJ vk;/vy;/V Mirkzp kfd; uhn$c&;Fkhh; vd;gtUk; mtUila gpuz;l; Kusp vd;gtUk; Fonghijapy; fhiu bfhz;L te;J epWj;jp v';fnshL gLf;fntz;Lbkd;W Twp

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¶9That apart, on perusal of Ex.P.6, revealed that the deceased herself lodged complaint before the Sub Inspector of Police, Nannilam Police Station, alleging that on 23.02.2012 at about 9.15 p.m., when she was returning from employment to home, the petitioner and the first accused came there in a white colour Bolero car and attempted to kidnap the deceased and they also scolded her with filthy language. After raising alarm, they escaped from the place of occurrence.

¶10On perusal of Ex.P.2 revealed that on 27.12.2012, the third respondent lodged complaint before the Superintendent of Police, Thiruvarur District and requested for fair and proper investigation and made specific allegations as against the petitioner and A1. On perusal of Ex.P.4 dated 02.01.2013, also clear that the third respondent made specific allegations that the petitioner and other accused viz., A1 are the reason behind the entire crime and wanted to take appropriate action as against them.

¶11It is also seen from the petition filed by the third respondent for transfer of investigation in Crl.O.P.No.3792 of 2013, it was filed on the ground that the first respondent failed to add the petitioner as an accused. However, this Court dismissed the said petition only on the ground that the third respondent filed petition for transfer of investigation on suspicious ground and without any specific allegations. Even after completion of investigation, while the matter was pending for committal, the third respondent sought for further investigation in Crl.O.P.No.30262 of 2014. Finally the third respondent filed petition to take her statement as first of it, in which also she categorically averred specific allegations as against the petitioner. It shows that the third respondent repeatedly knocking the doors of this Court for fair and proper investigation. Therefore, the trial Court rightly add the petitioner as an accused and issued summons. This Court finds no infirmity or illegality in the order passed by the trial Court.

¶12Accordingly, the Criminal Original Petition stands dismissed. Consequently, connected miscellaneous petitions are closed.

06.11.2023 Internet: Yes Index : Yes/No Speaking/Non Speaking order rts To

¶1The Additional District & Sessions Judge Fast Track Mahila Court, Tiruvarur.

¶2The Inspector of Police, Nannillam Police Station, Tiruvarur District.

¶3The Public Prosecutor, Madras High Court, Chennai.

G.K.ILANTHIRAIYAN. J, rts Crl.O.P.No.8899 of 2021 and Crl.M.P.Nos.5777 & 5779 of 2021

06.11.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.11.2023 CORAM: THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN and Crl.M.P.Nos.5777 & 5779 of 2021 Rajesh @ Rajeshkumar ...Petitioner Vs. 1. State Rep. by Inspector of Police, Nannillam Police Station, Tiruvarur District. 2. Murali 3. Kalaiselvi (R3 impleaded as per order dated 18.08.2023 in Crl. M.P.No.11257 of 2023 in Crl.O.P.No.8899 of 2021) ... Respondents Prayer: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to call for the records and set aside the order in Crl.M.P.No.238 of 2021, dated 30.04.2021 passed under Section 319 of the Code of Criminal Procedure adding the petitioner as an accused in S.C.No.109 of 2014 in the Court of the Additional District & Sessions and Fast Track Mahila Judge, Tiruvarur. For Petitioner : Mr.R.John Sathyan Senior Counsel For Mr.Swami Subramanian For Respondents For R1 : Mr.Mr.A.Gopinath Government Advocate (Crl. Sdide) For R3 : Mr.P.Vinod Kumar For Ms.V.Mythili