IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.02.2008 CORAM: THE HONOURABLE MR. JUSTICE K.MOHAN RAM Criminal Revision Case No.1757 of 2007 and M.P.No.1 of 2007 Thumburaj ... Petitioner -Vs.- State of Tamilnadu, rep by Inspector of Police, Economic Offences Investigation Branch, CCIW CID (Rural), Coimbatore District. ... Respondent Prayer : Criminal Revision Case filed under Sections 397 and 401 of the Criminal Procedure Code seeking to set aside the order passed by the Special Court / Chief Judicial Magistrate, Coimbatore in Crl.M.P.No.703 of 2006 in Spl.C.C.No.84 of 2002, dated 17.07.2007 and issue summons to P.W.7 to P.W.10 and P.W.12 and array them as accused in the case. For Petitioner : Mr.R.N.Amarnath For Respondent : Mr.Hasan Mohamed Jinnah Government Advocate (Crl. Side) - - - O R D E R The above revision is directed against the order dated 17.07.2007 dismissing the Crl.M.P.No.703 of 2006 in Spl.C.C.No.84 of 2002 on the file of the Special Court/Chief Judicial Magistrate, Coimbatore. 2. The petitioner who is the first accused in Spl.C.C.No.84 of 2002 is facing trial for the offences under Sections 420 r/w 109, 465 and 471 IPC. After examination of witnesses was over and just before the examination of the Investigating Officer, the petitioner had filed Crl.M.P.No.703 of 2006 under Section 319 of the Cr.P.C. to add P.W.5, P.W.6 and P.W.8 viz., Uche Gowder, Chinnasamy and Venkata Subramanium as the accused in the case and summon them to face the trial. https://hcservices.ecourts.gov.in/hcservices/ 3. The case of the petitioner is that P.W.5 Uche Gowder was the Co-operative Sub-Registrar during the relevant period and it is evident that P.W.5 is the person authorised to prepare the feasibility report viz., Ex.P.18 and without the feasibility report a proposal for Co-operative Society cannot be sent and therefore he was one of the person behind the entire events which culminated in getting the Society registered and there is sufficient evidentiary details in respect of his complicity in the crime and as such he should be arrayed as an accused. Similarly, P.W.8 is the person who has prepared Ex.P.39 and also recommended for establishing the Society. There is complicity on the part of the P.W.6 also in the establishment of the Society as he had prepared Exs.P.33 to 37 and Ex.P.25 and therefore P.W.5, P.W.6 and P.W.8 have individually and collectively aided in the establishment of the Co-operative Society and the answers elicited from them in their cross examination reveals their connivance or complicity in the crime and therefore they have to be arrayed as accused. 4. The said petition was opposed by the respondent by filing a detailed counter statement inter alia contending as follows: P.W.5 Uche Gowder was the Co-operative Sub Registrar at the Office of the Assistant Director of Khadhi and Village Industries, Tirupur during the period from 05.04.91 to 29.02.92; He signed in the office copy of the feasibility report only on 10.05.91 but the Assistant Director Tr.Ayuthiraman (A2) sent the proposal along with a false feasibility report to the Chief Executive Officer on 28.03.91 for obtaining prior permission for the registration of the Society; Uche Gowder joined only on 05.04.91 at the Office of the Assistant Director; The feasibility report was sent to the Chief Executive Officer before his joining i.e. on 28.03.91. Further the feasibility report was not written by him and he only signed in the report as per the instructions of the Assistant Director Tr.Ayothiraman. 5. It is further contended in the counter statement that the petitioner gave an application on 19.03.91 to the second accused Tr.Ayothiraman, Assistant Director of Khadhi and Village Industries, Tirupur for registration of the Society and the same was received by the second accused on 22.03.91. But even before that A2 directed the witness Chinnasamy who is an Assistant in his Office to put up a note for sending the proposal for obtaining prior permission from the Chief Executive Officer, Khadhi and Village Industries Board, Chennai for organising the Society; the second accused sent the proposal on 28.03.91 to the Chief Executive Officer and he attached a copy of the feasibility report with the proposal. The Office copy of the feasibility report was dictated by the second accused. The 6th witness Chinasamy who is an Assistant https://hcservices.ecourts.gov.in/hcservices/ in the Office of the Assistant Director (A2) has prepared the note as per the instructions of the second accused as it was his bounden duty to prepare notes as per the instructions of the Assistant Director. But he did not know about the actual facts about the application of the petitioner and other connected facts. 6. It is further contended in the counter statement that witness No.8 Venkitasubramaniam the then Regional Deputy Director of Khadhi and Village Industries, Tirupur who has forwarded the proposal of the Assistant Director (A2) to the Chief Executive Officer for the registration of the society and beyond that the 8th witnesses has not done anything. It is further contended that there is absolutely no evidence on record to implicate the witnesses M.R.Uche Gowder, Chinnasamy and Venkata Subramanium as accused in the case. It was further contended that since earlier petition filed for similar relief was dismissed by the Trial Court and the same was confirmed by the High Court, the present petition is not maintainable. 7. The learned Magistrate on a careful consideration of the materials on record held that there is no evidence to array the witnesses M.R.Uche Gowder, Chinnasamy and Venkata Subramanium in the case, dismissed the petition. Being aggrieved by that the petitioner is before this Court in the above criminal revision. 8. Heard Mr.R.N.Amarnath, learned counsel appearing for the petitioner and Mr.Mr.Hasan Mohamed Jinnah, learned Government Advocate (Crl. Side) appearing for the respondent. 9. The learned counsel appearing for the petitioner submitted that from the evidence of P.W.1 it is clear that Ex.P18 feasibility report for the Society was prepared by P.W.5 Uche Gowder and without Ex.P.18 the Society cannot be floated. P.W.5 Uche Gowder had deliberately failed in his duty and as such he should be arrayed as an accused. 10. The learned counsel appearing for the petitioner further submitted that Ex.P.25 and Exs.P.33 to P37 are the relevant documents for the formation of the Society and the said documents were prepared by P.W.6 and thus his complicity in the commission of the crime is established but without considering the same the Court below has erroneously dismissed the petition. 11. The learned counsel further submitted that without Ex.P.39 recommendation which was prepared by P.W.8, the Society in question could not have been formed and hence P.W.8 ought to be arrayed as an accused. Except the above said submission no other submission have been made. https://hcservices.ecourts.gov.in/hcservices/ 12. I have carefully considered the submissions made by the learned counsel appearing for the petitioner and the learned Government Advocate (Crl. Side) appearing for the respondent, and perused the materials available on record and the order of the Court below. 13. The Court below has pointed out that P.W.1 in his evidence has stated that the witness P.W.5 Uche Gowder had not signed in the feasibility report and P.W.5 was not aware of the malpractice committed in the Society and there is no direct evidence as against P.W.5. The Court below has further pointed out that there is no direct evidence as against P.Ws.5, 6 and 8 to proceed against them under Section 319 Cr.P.C. 14. It is seen from the counter statement filed by the respondent that when P.W.5 had signed in the office copy of the feasibility report only on 10.05.91 but earlier to that the Assistant Director (A2) had already sent the proposal along with the feasibility report to the Chief Executive Officer on 28.03.91 for obtaining prior permission for the registration of the Society. Whereas P.W.5 had only joined in the Office of the Assistant Director only on 05.04.91. Therefore, the contention of the learned counsel appearing for the petitioner cannot be countenanced. 15. As far as the evidence of P.W.5 is concerned it cannot be used against him in the light of the Proviso to Section 132 of the Evidence Act. In the decision reported in Delhi Administration Vs. Jagit Singh (AIR 1989 SC 598) it has been held as follows: "13. Therefore, a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly. Proviso to S.132 expressly provides that such answer which a witness is compelled to give shall not subject him to any arrest or prosecution nor the same can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. The provisions of proviso to S.132, Evidence Act, clearly protect a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly." 16. Therefore when P.W.5 has been summoned as witness and was examined as P.W.5 and while being examined he has given answers, that answers cannot be used against him in subsequent criminal proceeding since he is clearly protected by the proviso to Section 132, Evidence Act. https://hcservices.ecourts.gov.in/hcservices/ 17. As far as P.W.6 Chinnasamy is concerned who is an Assistant in the Office of the Assistant Director (A2) he had only prepared the note as per the instructions of A2 for obtaining prior permission from Chief Executive Officer for sending the proposal for registration of the Society. As an Assistant it was his duty to prepare notes as per the instructions of the Assistant Director and as such on the mere fact that he prepared the note it cannot be construed that he had complicity in the commission of the offence. The learned counsel appearing for the petitioner is unable to point out any evidence on record to proceed against him under Section 319 Cr.P.C. 18. As far as P.W.8 Venkatasubramaniam is concerned he was the Regional Deputy Director of Kadhi and Village Industries, Tirupur and he had only forwarded the proposal of the Assistant Director (A2) to the Chief Executive Officer for registration of the Society and except forwarding the proposal he had not done anything warranting invocation of the provisions contained under Section 319 Cr.P.C. Therefore, this Court is unable to accept the contention of the learned counsel appearing for the petitioner. 19. It may be true that earlier the petition filed by the petitioner seeking a similar relief came to be dismissed and the order was confirmed by the High Court in revision but that cannot be a ground for dismissal of the present petition which is filed after the examination of the witnesses was over. Section 319 can be invoked only after the entire evidence is brought on record and not on the basis of the statement of witnesses recorded under Section 161 of the Cr.P.C. and therefore the additional reasoning assigned by the Court below in dismissing the petition is erroneous but the other reasoning of the Court below that there is no evidence on record to array the witnesses as accused in the case cannot be said to be erroneous. 20. This Court is of the view that the order of the Court below does not suffer from any irregularity or illegality and hence this Court is not inclined to interfere with the same. In such view of the matter, the above criminal revision case fails and the same is dismissed. Consequently, the connected M.P. is also closed. Kk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1 The Inspector of Police, State of Tamil Nadu, Economic Offences Investigation Branch, CCIW CID (Rural), Coimbatore District. 2. The Special Court / Chief Judicial Magistrate, Coimbatore: MS(CO) SR/28.2.2008 order in Crl. R.C.No.1757 of 2007 and M.P.No.1 of 2007 https://hcservices.ecourts.gov.in/hcservices/