State v. K.P.S.Jayachandran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02.07.2008CORAMTHE HONOURABLE MR.JUSTICE T. SUDANTHIRAMCrl.R.C.No.731 of 2006and M.P.No.1 of 2006State rep. by The Deputy Superintendent of PoliceErode TownErode District(Erode North Police Station)Crime No.167 of 2003...PetitionerVersusK.P.S.JayachandranInspector Of PoliceFormerely Erode North Police StationErode District ...RespondentCriminal revision petition preferred against the Order dated28.04.2006 in Crl.M.P.No.415 of 2006 in P.R.C.No.10 of 2005, onthe file of the Judicial Magistrate -I, Erode.For Petitioner : Mr.P.Kumaresan Additional Public ProsecutorFor Respondent : Mr.R.ShanmughasundaramSenior Counsel for Mr.L.BaskaranJUDGMENTThe revision petitioner herein filed a final report before thelearned Judicial Magistrate-I, Erode, against five accused inwhich the respondent herein is the fifth accused, for offencesunder Sections 364, 302 r/w 34, 201, 203, 218, 465 and 471 IPC.The 5th accused /respondent herein filed a petition under Section218 and 223(d) Cr.P.C before the learned Magistrate inCrl.M.P.No.415 of 2006 praying for discharge and the said petitionwas allowed on 28.04.2006 and subsequently the case was ordered tobe committed to the Sessions in respect of only the accused 1 to4. Aggrieved by the order of the learned Magistrate for notcommitting the 5th accused along with the other accused to theSessions Court, this revision petition has been preferred. https://hcservices.ecourts.gov.in/hcservices/

2. The final report was filed against accused 1 to 3 for thealleged offences under Sections 364 and 302 r/w 34 and 201 IPC andagainst the 4th accused for the alleged offence under Section 203IPC and against the 5th accused/respondent herein for the allegedoffence under Sections 218, 465 and 471 IPC. 3. The learned Magistrate discharged the 5th accused statingthat the 5th accused cannot be tried along with the other accused1 to 4 and also directed the police to file a separate finalreport against the 5th accused after the trial in respect ofaccused 1 to 4 comes to an end. 4. The case of the prosecution is that A.1 and A.2 decidedto murder the deceased with the help of A.3 and brought thedeceased near a well and A.3 caught hold of the neck of thedeceased, A.2 put a rope around the neck and strangulated him andpushed him down and A.1 caught hold of the legs of the deceasedand A.3 stabbed on his neck indiscriminately with the knife, thenA.1 to A.3 knowing that the offence of murder have been committedto cause disappearance of the evidence, tied a stone on the deadbody with a rope and threw the body into the well. The caseagainst the 4th accused is that during the course ofinvestigation, the 4th accused gave a false information to theinvestigation officer and before the learned Magistrate.5. The case against the 5th accused/respondent herein is thathe being an Inspector Of Police, Erode North Police Station,during the course of investigation prepared the statement under161(3) Cr.P.C of some of the witnesses in a manner which he knowsto be incorrect, in order to save the real accused from legalpunishment and he also prepared observation mahazar of the sceneof occurrence with the forged signature of one Nagaraj.6. Mr.P.Kumaresan, learned Additional Public Prosecutorfurther submitted that the 5th accused falsely implicated threeinnocent persons as the accused in the murder case leaving thereal accused and he put up a stock witness and fabricated theevidence against the innocent persons and the signature of thewitnesses in the observation mahazar were forged one and as such,the discharge of the 5th accused is against law. 7. The learned Additional Public Prosecutor further submittedthat the Magistrate has erroneously discharged the 5th accused bygoing to the merits of the case for which he had no power. 8. The learned Additional Public Prosecutor further submittedthat the learned Magistrate has no authority to split the case andhe ought to have committed the 5th accused also to the SessionsCourt along with the other accused. He relied on the decisionof the Honourable Supreme Court reported in 1978 Crl.L.J. 642(Amrit Nahata v. Union of India), wherein it is stated as follows:"3. Secondly, it is not open to the committal courtto launch on a process of satisfying itself that a prima https://hcservices.ecourts.gov.in/hcservices/ facie case has been made out on the merits. Thejurisdiction once vested in him under the earlier Codebut has been eliminated now under the present Code.Therefore, to hold that he can go in to the merits evenfor a prima facie satisfaction is to frustrate theParliament's purpose in remoulding S.207-A (old Code)into its present non-discretionary shape. Expeditionwas intended by this change and this will be defeatedsuccessfully, if interpretatively we hold that a dressrehearsal of a trial before the Magistrate is in order.In our view, the narrow inspection hole through whichthe committing Magistrate has to look at the caselimits him merely to ascertain whether the case, asdisclosed by the police report, appears to theMagistrate to show an offence triable solely by theCourt of Session. Assuming the facts to be correct asstated in the police report, if the offence is plainlyone under S.201 IPC., the Magistrate has simply tocommit for trial before the Court of Session."9. Mr.R.Shanmugha Sundaram, learned Senior Counsel appearingfor the respondent submitted that the police had filed the finalreport by clubbing different offences committed in differenttransactions which is illegal and hit by misjoinder of charges andmisjoinder of persons. Joint trial of the 5th accused along withthe other accused would cause prejudice to him. The learnedSenior Counsel further submitted that the allegation made againstthe 5th accused would come into picture only when the trialagainst the other accused concluded in the Sessions Court and asfar as the charges levelled against the 5th accused are onlytriable by Magistrate, whereas the charges levelled against theother accused in a different transactions are exclusively triableby the Sessions Court. 10. The learned Senior Counsel further pointed out that fromthe final report in which it is stated that "during the course ofthe investigation in this case from 26.09.2003 to 19.06.2004, A.5being a public servant entrusted with the work of investigation asInspector of Police, Erode North Police Station, prepared thestatements under Section 161(3) Cr.P.C of 1)Shajahan .............................., in a manner which he knewto be incorrect with the intention that those statements couldsave the real accused from legalpunishment........................" By pointingout this, thelearned Senior Counsel submitted that even according to the finalreport, the alleged act of the 5th accused is independent to theact and occurrence of murder.11. Reliance was also placed in the decision of the HonourableSupreme Court reported in 1975 SCC (Cri) 16 (The Superintendentand Remembrancer of Legal Affairs, West Bengal v. Md.Samsuddin andOthers), wherein it has been observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "8. Looking at the plain language of these twosub-sections it is patent that the Magistrateconducting the inquiry proceedings can discharge theaccused only if he is of the opinion that the evidenceproduced before him and the documents referred to inSection 173 of the Code "disclose no grounds forcommitting the accused person for trial". Thejurisdiction of the inquiring magistrate is thus of alimited character. He has, undoubtedly, got to siftand weigh the evidence but that exercise is solelydirected to finding whether the prosecution has madeout a prima facie case. So long as there is evidencewhich, if believed, would sustain the conviction ofthe accused, it is the duty of the magistrate tocommit the accused to the Court of Sessions, unless hecomes to the conclusion that the offence disclosed bythe evidence is such as may be tried by himself or bysome other magistrate. This limitation stems from thefact that a magistrate acting under Chapter XVIII ofthe Code does not try the accused but merely inquiresinto the case against him. Sifting and weighingevidence to determine the guilt is the function andprivilege of the Court which tries the accused. Thatexplains why this Court held in Thakur Ram v. Stateof Bihar (1966) 2 SCR 740) that where two views of theevidence are possible, it is not for the committingCourt "to evaluate the evidence and strike a balance"before deciding whether or not to commit the accusedto the Court of Sessions. An order of discharge canbe passed by the committing Magistrate only if thereis no evidence at all on which to base the conviction.In Bipat Gope v. State of Bihar, the order ofdischarge was held to be in excess of jurisdictionbecause the Magistrate, instead of finding whether theevidence is believed would establish a prima faciecase, went further to disbelieve the evidence by anelaborate and painstaking process of examination ofevidence in aid of which he brought to bear his ownappraisal by considering inconsistencies andimprobabilities.9. The Magistrate in the discharge of hisfunction under sub sections (6) and (7) of Section207-A, cannot certainly act as a mere automaton. Hehas a judicial, not a ministerial, duty to perform andtherefore he cannot act as a post-office for onwardtransmission of the case. He must apply his mind tothe evidence in order to determine whether thatevidence makes out a prima facie case against theaccused. Thus, the committal proceedings go beforethe Sessions Court not in a virgin form but with thejudicial imprimatur of the magistrate that prima facieevidence is such as may justify the conviction of theaccused. https://hcservices.ecourts.gov.in/hcservices/

12. This Court considered the submission made by both partiesand perused the copy of the final report.13. As far as the 5th accused/respondent herein is concerned,he is said to have committed an offence while investigating thecase as an investigating officer. In the main occurrence ofmurder and with regard to the causing disappearance of evidence ofmurder he is not involved. Only in the process of investigation,5th accused is said to have prepared the false document. Thequestion arises is that if that be the case, whether the 5thaccused also should be tried along with other accused in the sametrial or he may be tried separtely for the alleged offencecommitted.14. Section 223 of the Code of Criminal Procedure reads asfollows:223. What persons may be charged jointly:- Thefollowing persons may be charged and tried together,namely:-(a) persons accused of the same offencecommitted in the course of the same transaction;(b) persons accused of an offence and personsaccused of abetment of, or attempt to commit, suchoffence;(c) persons accused of more than one offenceof the same kine, within the meaning of section 219committed by them jointly within the period of twelvemonths;(d) persons accused of different offencescommitted in the course of the same transaction;(e) persons accused of an offence whichincludes theft, extortion, cheating, or criminalmisappropriation, and persons accused of receiving orretaining, or assisting in the disposal or concealmentof, property possession of which is alleged to havebeen transferred by any such offence committed by thefirst-named persons, or of abetment of or attempting tocommit any such last-named offence;(f) persons accused of offences underSections 411 and 414 of the Indian Penal Code (45 of1860) or either of those sections in respect of stolenproperty the possession of which has been transferredby one offence;(g) persons accused of any offence ChapterXII of the Indian Penal Code (45 of 1860) relating tocounterfeit coin and persons accused of any otheroffence under the said Chapter relating to the samecoin, or of abetment of or attempting to commit anysuch offence; and the provisions contained in theformer part of this Chapter, so far as may be, apply toall such charges:Provided that where a number of persons arecharged with separate offences and such persons do not https://hcservices.ecourts.gov.in/hcservices/ fall within any of the categories specified in thissection, the Magistrate may, if such persons by anapplication in writing, so desire, and if he issatisfied that such persons would not be prejudiciallyaffected thereby, and it is expedient so to do, try allsuch persons together."15. As per the above Section, with regard to the facts of thiscase, it is not possible to say 5th accused has committed the sameoffence or he abeted or attempted to commit such offence, orcommitted the offence in the course of the same transaction.Prima facie it appears that the 5th accused cannot be tried alongwith the other accused in this case. This court also feels that ifthe 5th accused is tried along with other accused, there is apossibility of prejudice being caused either to prosecution or thedefence. 16. Considering with regard to the power of the learnedMagistrate whether he was proper in splitting up the case anddischarging the accused. The decision cited by the learned SeniorCounsel appearing for the respondent herein/5th accused, it iscase wherein committal proceedings was taken as per the procedureof the old Code under Section 207-A Cr.P.C, 1898 (old Code).17. As per the procedure in the old Code, under Section 207-A(4), the Magistrate was empowered to take the evidence of thewitness and by Sub section (5), the accused was given liberty tocross examine the witness. Therefore, at that time, the committalproceeding was done only after taking evidence and not merely byreferring to the documents referred under Section 173 of the Code.18. The position now as per the new Code is entirelydifferent. In the decision of the Honourable Supreme Courtreported in 1994 SCC (Crl.) 772 (Raj Kishore Prasad v. State ofBihar and another), it has been held as follows:"8..... Proceedings before a Magistrate underSection 209 Cr.P.C are patently not trial proceedingsand were never considered so at any point of timehistorically. There has never been any doubt on thataccount. Before the amendment of the Code ofCriminal Procedure in the present form, commitmentproceedings had the essential attributes of anenquiry and were termed as such. How do theycontinue to be so is the core question to determineand spell out the powers of the Magistrate underSection 209 Cr.P.C. If proceedings under section 209Cr.P.C continue to be an inquiry, Section 319 Cr.P.Cwould be obviously attracted, subject of course todecide whether the material put forth by theinvestigation could be termed as evidence, asotherwise no evidence is recordable by a Magistratein such proceedings. https://hcservices.ecourts.gov.in/hcservices/

9. While enacting the Code of CriminalProcedure, 1973, the prefactory note beforeParliament containing Objects and Reasons gave outthe chances proposed to be made with a view to speedup the disposal of criminal cases. Item (a)specially provided the preliminary inquiry whichprecedes the trial by a Court of Session, otherwiseknown as committal proceeding, is being abolished asit does not serve any useful purpose and has been thecause of considerable delay in the trial of offences.10. The Law Commission beforehand in its 41stReport while recommending change on the subjectopined as follows:17.11 Where the case (whether instituted on a policereport on complaint) relates to an offence triable bythe Court of Session, the Magistrate has to send upthe case to the Court of Session. Since an inquiryby the Magistrate is not contemplated in the schemewhich we propose in regard to such offences, theprovision in this respect can take a simple form andcan be placed in this chapter as forming part of thecommencement of proceedings before Magistrates. Itwill be convenient to refer to this process ascommitment of the case to the Court of Sessionalthough the procedure is radically different fromthe commitment proceedings at present provided inChapter 18.(ii)214. (Section 209) Preliminary inquires byMagistrate in cases exclusively triable by the Courtof Session are being dispensed with as such aninquiry has served no useful purpose and, on thecontrary, it involves a great deal of infructuouswork causing delay in the trial of serious cases.The abbreviated form of inquiry provided for by theamendments made in 1955 and contained in Section 207-A has been the subject of controversy and opinion isalmost unanimous that this procedure while solving noproblems, created fresh problems. Preliminaryinquiries are, therefore, being dispensed withincases triable by a Court of Session. However, toperform certain preliminary functions like grantingcopies, preparing the records, notifying the publicprosecutor, etc., provision is being made that theMagistrate taking cognizance of the case will performthese preliminary functions and formally commit thecase to the Court of Session. As regards privatecomplaints in cases triable exclusively by a Court ofSession the inquiry into the complaint by theMagistrate under the existing Section 202 will servethe purpose of a preliminary scrutiny. SOR Gaz. ofIndia 10-12-1970, Pt.II, Section 2, Extra., p.1309(1320). (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/

11. The present Section 209 is thus the productof the aforesaid expert deliberation followed bylegislative exercise. It is thus to be seenprominently that preliminary inquiries then known ascommittal proceedings have been abolished in casestriable by a Court of Session. The functions left tobe performed by the Magistrate, such as grantingcopies, preparing the records, notifying the publicprosecutor etc. are thus preliminary or ministerialin nature. It is of course true that the Magistrateat that juncture takes cognizance of a sort, but thatis solely to perform those preliminary functions as afacilitator, towards placement of the case before theCourt of Session, rather than being an adjudicator.It is thus manifest that in the sphere of the limitedfunctioning of the Magistrate, no application of mindis required in order to determine any issue raised,or to adjudge anyone guilty or not, or otherwise topronounce upon the truthfulness of any version. Therole of the Magistrate thus is only to see that thepackage sent to the Court of Session is in order, sothat it can proceed straightaway with the trial andthat nothing is lacking in content, as perrequirements of Sections 207 and 208 of the Code ofCriminal Procedure. Such proceedings thus, in ouropinion do not fall squarely within the ambit ofinquiry as defined in Section 2(g) of the Code ofCriminal Procedure, which defines that inquiry meansevery inquiry, other than a trial, conducted underthis Code by a Magistrate or Court, because of theprelude of its being subject to the context otherwiserequiring. As said before, the context requires theproceedings before a Magistrate to be formal, barelycommittal in that sense, and that any notion basedupon the old state of law of its being an inquiry towhich Section 319 could get attracted, has been doneaway with. Therefore, it would be legitimate for usto conclude that the Magistrate at the stage ofSection 209 Cr.P.C is forbidden to apply his mind tothe merit of the matter and determine as to whetherany accused need be added or subtracted to face trialbefore the Court of Session."19. The decision of the Honourable Supreme Court reported in1975 SCC (Crl.) 16 (The Superintendent and Remembrancer of LegalAffairs, West Bengal v. Md.Samsuddin and Others) is not applicableto the cases coming under new criminal procedure code, 1973. Thecontention of the learned Additional Public ProsecutorMr.Kumaresan is to be held correct.20. In view of the ratio laid down by the Honourable SupremeCourt reported in 1978 Crl.L.J 642 and 1994 SCC(Crl.)772, thecommittal Court has no power to discharge the accused. Thelearned Magistrate has no power either to add any one as accused https://hcservices.ecourts.gov.in/hcservices/ or to delete any one of the accused. Absolutely there is noprovision for the accused to file any discharge application beforethe committal court and for the court to deal with it. It is onlyeither for Sessions Court to discharge the accused or for HighCourt to quash the proceedings on merits. 21. In the above said circumstances, it is to be held thatapplication filed by respondent/5th accused before the committalcourt was not maintainable and as such the order of dischargepassed by the learned Magistrate is illegal. Therefore, the orderpassed by the learned Magistrate is liable to be set aside.22. Though there is an illegality in the order passed by thelearned Magistrate by discharging the accused, now this Courthaving taken the matter and going through records and consideringthe case on merit and as already held above in paragraph-15, thatas per Section 223 Cr.P.C., the 5th accused/respondent hereincannot be charged jointly along with the other accused, this Courtexercising its inherent power under Section 482 Cr.P.C as itbecomes necessary at this stage in the interest of justicedirects the police to file a separate final report against the 5thaccused as early as possible and proceed against him according tolaw.23. With the above observations, the criminal revisionpetition stands disposed of.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ksrTo1.Judicial Magistrate-I,Erode.2. do thro the Chief Judicial Magistrate, Erode3.The Deputy Superintendent of PoliceErode Town, Erode District(Erode North Police Station)4. The Public Prosecutor, High Court, Madras.1 cc to Mr.L. Baskar, Advocate, SR. 344471 cc to Public Prosecutor, High Court, Madras, SR. 34426Crl.R.C.No.731 of 2006LA (CO)kk 11/7