1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal R.C.(MD)No.502 of 2011 Jeyalaximi .. Petitioner/Petitioner/Witness Vs. 1.State rep by The Inspector of Police, Puliyampatti Police Station, Cr.No.25 of 2007, Thoothukudi District. ..1st Respondent/Respondent/Complainant 2.Chithivinayagamoorthy @ Moorthy .. 2nd Respondent/Respondent/Accused Prayer: Petition filed under Sections 397 r/w 401 Cr.P.C., against the order passed by the Sessions Judge (Mahila Court) Tirunelveli, dated 08.06.2011 in Cr.M.P.No.646 of 2010 in S.C.No.342 of 2009. For Petitioner : Mr.P.Ramasamy For 1st Respondent : Mr.A.Kandasamy Government Advocate. For 2nd Respondent : Mr.P.Samuel Gunasingh ORDER The petitioner is the defacto complainant. The second respondent is the accused. Charges framed against the accused under Sections 376, 417 and 506 (i) IPC. The trial commenced trial in the case and 10 witnesses have been examined so far. At that time, the defacto complainant, filed a petition before the Court below under Section 216 Cr.P.C praying the Court to frame charge against the accused under Section 313 IPC alleging that on the scrutiny of final report and other documents filed by the prosecution, the offence under Section 313 IPC is being made out against the accused and hence a charge may be framed under Section 313 IPC. 2.In the counter affidavit filed by the accused the above said allegation is denied. It is further stated that only if the pregnancy was terminated without consent of a woman, the offence would be made out and the submissions and other evidence would indicate that the termination of pregnancy was performed with her consent; that the de-facto complainant has filed an application through a private counsel for which she is not entitled; that she may engage a counsel to assist the Public Prosecutor and hence, the petition is not maintainable. 3.After hearing both the parties, learned Sessions Judge, Tirunelveli has dismissed the application accepting the contentions of the accused. Hence, the petitioner has come before this Court. 4.Learned counsel for the petitioner would contend that since the Public Prosecutor has not taken any steps to file any application, the de-facto complainant was forced to file the application through a private lawyer that she is entitled to file the application which is https://hcservices.ecourts.gov.in/hcservices/ 2 maintainable; that even prior to the pronouncement of the final judgment in this case, the Sessions Judge has discussed about the merits with regard to the charge to be framed under Section 313 IPC which shows prejudged opinion; that those findings are to be eschewed and that the petition may be allowed. 5.Per contra, learned Government Advocate would submit that whatever be the merits in this case, learned Assistant Public Prosecutor would take proper steps; that the de-facto complainant cannot file an application thorough independent lawyer and that the request of the petitioner is not sustainable in law. 6.Learned counsel for the second respondent accused would contend that no provision empowers the petitioner to file any application that any advocate could be appointed only to assist the public prosecutor, that as per the settled principles, only after the oral evidence in the case were recorded and if anything transpires in the oral testimonies of the prosecution witnesses, then the Public Prosecutor can take steps to pray the Court to alter charges under Section 216 Cr.P.C., and the present request of the petitioner may be turned down. 7.As regards the locus standi of the petitioner to file the present petition, there is no provision in any statute entitling the de-facto complainant to engage a lawyer on her own accord and to file any application. At the most, she can engage a lawyer to assist the prosecutor and whatever she wants to say can be addressed to the Court through Public Prosecutor. Filing of application by any of the witnesses including the de-facto complainant independently, without reference to the Public Prosecutor is alien to law. Hence, the petitioner has no locus standi to file the present application. 8.Insofar as the termination of pregnancy is concerned, learned counsel for the second respondent would say that neither the second respondent nor her father has stated that the pregnancy was terminated without consent of the lady. He further says that proper analysis of the evidence on record would show that there is no ground either alter the charge already framed or to frame fresh charge under Section 313 IPC. 9.In support of his contentions, he placed reliance upon a decision of this Court reported in (2008) 1 MLJ (Crl) 287 (V.R.Eswaramoorthy Vs.Suriya Chakra Spinning Mills Pvt. Ltd., by its Managing Director and others) in which the learned Judge after following various decisions of the Hon'ble Apex Court has observed that the trial Court can alter or add a charge only on the basis of the evidence adduced before it and not on the basis of any other materials which do not constitute evidence. If there is any material either in the complaint or in the evidence adduced during the course of trial, it is open to the trial Court to frame a new charge. It is his contention that no witness has stated that pregnancy was terminated without the consent of the woman and hence, there is no need to frame new charge under Section 313 IPC. In my considered view, that the petitioner is not competent to file independent application. As far as the observations touching the merits of the matter by the learned Sessions Judge are concerned, they shall not influence the trial Court on future occasions, in any case, if there is any possibility for framing any other fresh charge, on the basis of oral evidence on record. https://hcservices.ecourts.gov.in/hcservices/ 3 10.In view of the above said circumstances, this Court is of the considered opinion that the present petition is not maintainable. Hence, it is liable to be dismissed and the order passed by the Court below, has to be confirmed. 11.In the result, this criminal revision petition is dismissed. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar (C.S) To 1. The Inspector of Police, Puliyampatti Police Station, Thoothukudi District. 2. The Sessions Judge (Mahila Court), Tirunelveli. 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. + 1 cc to Mr.P.Ramasamy, Advocate, SR No.22817 Criminal R.C.(MD)No.502 of 2011 and MP(MD)No.1 of 2011 13.07.2011 sms RJ/28.7.11 3p/5c https://hcservices.ecourts.gov.in/hcservices/