1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.04.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD)No.20 of 2011 and M.P(MD)No.1 of 2011 1.Singalan 2.C.Gunabalan ... Petitioners/A2 and A3(Accused No.3 & 4) Vs. 1.The State represented by The Revenue Divisional Officer, Usilampatti, Madurai District. ... 1st Respondent/Complainant 2.Thangapandian ... 2nd Respondent (R2 impleaded as per the orders of this Court made in Crl.R.C.No.20 of 2011 dated 18.01.2011.) 3.Angammal ... 3rd Respondent (R3 impleaded as per the orders of this Court made in M.P(MD)No.2 of 2011 in Crl.R.C.No.20 of 2011 dated 24.02.2011.) Prayer : Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure to call for the records pertaining to the order passed in Crl.M.P.No.253 of 2010 in S.C.No.129 of 2007 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.3, Madurai, dated 05.01.2011 and set aside the same and direct the trial Court to take cognizance of the offence as against the proposed accused in accordance with law. For Petitioners : Mr.K.Jeganathan For Respondents : Mr.P.Rajendran, Govt. Advocate (Crl.Side) for R.1 Mr.M.Ravishankar for R.3 Mr.B.Saravanan for R.2 ORDER The revision petitioners are arrayed as A.3 and A.4 in S.C.No.129 of 2007 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.3, Madurai. 2. All the accused are facing charge and they filed a petition under Section 193 Cr.P.C to implead the second respondent herein as an accused and it was dismissed vide order dated 05.01.2011 and challenging the vires of the same, the present revision has been filed. 3. The facts necessary for the disposal of this revision are as follows: The husband of the third respondent herein was taken into custody by the officials of the Oomatchikulam Police Station under the leadership of https://hcservices.ecourts.gov.in/hcservices/ 2 the second respondent on 27.07.1998 with regard to the alleged theft of the jewels. It is further alleged that between 27.07.1998 and 02.08.1998, the husband of the third respondent as well as the third respondent were subjected to the illegal custody and torture at the hands of the police officials and it is further alleged that the third respondent was also subjected to forceful physical relationship by some of the police officials and unable to bear the third degree method adopted by the police officials, the husband of the third respondent died on 02.08.1998 at a private hospital at Usilampatti and therefore, the enquiry by the Revenue Divisional Officer was ordered under Order 145 of the Police Standing Orders. The report of the Revenue Divisional Officer was submitted to the District Collector, Madurai, who made a further recommendation and submitted the same to the Government for appropriate action against the police officials concerned. 4. The Public (Law and Order) Department of the Government of Tamil Nadu in G.O.No.206 dated 23.02.1999, directed the initiation of the departmental proceedings as well as the criminal prosecution against nine officials including the revision petitioners and the departmental action against the second respondent and seven other persons. 5. Accordingly, the Revenue Divisional Officer has lodged a complaint which has been taken on file and the petitioners and the other accused are prosecuted for the alleged commission of the offences under Sections 147, 342, 354, 325, 323 and 302 I.P.C. After furnishing the copies, the jurisdictional Magistrate has committed the case to the Court of the Principal Sessions Judge, Madurai, who in turn made over the case to the Court of the Additional District and Sessions Judge, Fast Track Court No.3, Madurai, and the case is pending in S.C.No.129 of 2007. 6. During the pendency of the case, all the accused filed Crl.M.P.No.158 of 2007 for discharge and it was dismissed on 21.08.2007 by the trial Court and challenging the vires of the same, all the accused including the revision petitioners filed Crl.R.C(MD)No.661 of 2007 and it was also dismissed confirming the order of dismissal of the discharge petition passed by the trial Court. 7. One of the witnesses apprehending the danger to the life at the hands of the accused filed W.P.No.25791 of 2001 praying for appropriate direction directing the official respondents to enquire into his complaint dated 14.12.2001 and give him suitable police protection and also to take action against the police personnel and this Court vide order dated 26.10.2010 has taken note of the fact that the trial of the case has been commenced, has granted liberty to the petitioner to file an appropriate action before the trial Court and the trial Court, in turn, was directed to consider the said application and pass appropriate orders. This Court has also directed the Additional District and Sessions Judge, Fast Track Court No.3, Madura, to expedite the trial and complete the same at the earliest on or before 30.03.2011. 8. Thereafter, the revision petitioners/A.3 and A.4 filed Crl.M.P.No.253 of 2010 under Section 193 Cr.P.C to array the second respondent as accused for the reason that the defacto complainant/L.W.1 in her statement recorded under Section 161 Cr.P.C as well as in her sworn statement in respect of the complaint filed before the Revenue Divisional https://hcservices.ecourts.gov.in/hcservices/ 3 Officer, has clearly indicated the role played by the second respondent in the alleged commission of the offence. The said petition came to be dismissed. 9. Mr.K.Jeganathan, learned Counsel for the petitioners/A.3 and A.4 would submit that the statement of the defacto complainant/L.W.1 given during the investigation as well as at the time of taking the complaint given by the Revenue Divisional Officer, clearly implicated the second respondent also and therefore, in all fairness, he should have been arrayed as accused. It is the further submission of the learned Counsel for the revision petitioners that there cannot be any selective prosecution of the accused and since the second respondent who headed the police team at the relevant point of time, has also played the role in the alleged commission of the offence, he should be arrayed as accused for proper and effective adjudication of the issues involved in the trial. 10. The learned Counsel for the revision petitioners in support of his submissions, placed reliance upon the judgment of the Single Judge of this Court in Krishnammal v. Revenue Divisional Officer, Tuticorin, Tuticorin District and others reported in (2008) 2 MLJ (Crl) 1502. In the said case also, the defacto complainant has filed a petition under Section 193 Cr.P.C read with Section 319 Cr.P.C to include the Sub Inspector as one of the accused and the said petition was dismissed by the Additional Sessions Cum Fast Track Court No.I, Tuticorin and challenging the same, preferred the revision. This Court, taking into consideration the judgments rendered by the Honourable Supreme Court, has laid the following proposition "(a) Once a particular case has been committed to the Court of Session, the bar created under Section 193 of the Code of Criminal Procedure is lifted and the Court of Session is having unfettered power to summon any person whose complicity in the commission of the crime prima facie be gathered from the material on record. (b) The Court of Session can invoke the inherent or revisional power of the High Court to summon a person whose positive involvement in a crime can be gathered from the material on record, before reaching the stage of evidence. (c) Once the Court take cognizance of the offence a primordial duty is cast upon the Court to find out the real culprit and if the Court comes to a conclusion that besides the persons put up for trial by the police, some others are also involved in the commission of the crime, it is the duty of the Court to summon them to face trial along with the accused already named. (d) As per the provision of Section 193 of the Code of Criminal Procedure, the Court of Sessions is having unfettered power to summon any person whose involvement in the commission of crime is prima facie appeared from the available records." 11. Hence, the learned Counsel for the revision petitioners prayed for setting aside the impugned order and prayed for appropriate direction for arraying the second respondent herein as an accused. https://hcservices.ecourts.gov.in/hcservices/ 4 12. Mr.P.Rajendran, learned Government Advocate (Criminal Side) for the first respondent would submit that the revision petitioners are always in the habit of protracting the proceedings and taking into consideration the said aspect and the legal aspect, the lower Court has correctly dismissed the petition in Crl.M.P.No.253 of 2010 filed by them and no interference is warranted at the hands of this Court. 13. Mr.B.Saravanan, learned Counsel for the second respondent would submit that based on the report of the Revenue Divisional Officer as endorsed by the District Collector, the Government thought fit to recommend the departmental action against him and he has been proceeded with and awarded the punishment of postponement of increment with cumulative effect for one year and he has also retired from service. 14. Mr.M.Ravishankar, learned Counsel for the third respondent/defacto complainant, who is the wife of the deceased Guruvaiya, would submit that the sole intention of the revision petitioners is to protract the proceedings. It is the further submission of the learned Counsel for the third respondent that the remedy open to the revision petitioners has not been foreclosed forever and in the event of L.W.1/defacto complainant deposes against the second respondent also, it is open to the trial Court to proceed against the second respondent in terms of Section 319 Cr.P.C. 15. This Court has carefully considered the rival submissions and perused the materials available on record. 16. A perusal of G.O.No.206 dated 23.02.1999 issued by the Public (Law and Order) Department of the Government of Tamil Nadu, would disclose the fact that with regard to the death of the husband of the third respondent in police custody, an enquiry through the Revenue Divisional Officer was ordered and he has also submitted his report to the District Collector who made an endorsement and also made recommendation to the Government, based on which, the Government ordered for the departmental action against the second respondent as well as seven others and also recommended for criminal prosecution as well as the departmental action against nine persons including the revision petitioners/A.3 and A.4. Based on the above said order, the Revenue Divisional Officer Usilampatti, has filed a private complaint in which the sworn statements of the witnesses including that of L.W.1/defacto complainant were recorded and the Court on being satisfied with the same, took cognizance of the case and committed the case to the Court of Principal Sessions Judge, which in turn, made over the case to the Court of the Additional District and Sessions Judge, Fast Track Court No.3, Madurai and the case has been taken on file in S.C.No.129 of 2007. 17. The accused in S.C.No.129 of 2007 filed Crl.M.P.No.158 of 2007 for discharge and the same was dismissed on 21.08.2007 by the trial Court and challenging the vires of the same, all the accused including the revision petitioners filed Crl.R.C(MD)No.661 of 2007 and it was also dismissed confirming the order of dismissal of the discharge petition passed by the trial Court. One of the witnesses apprehending the danger to the life at the hands of the accused filed W.P.No.25791 of 2001 praying for appropriate direction directing the official respondents to enquire into his https://hcservices.ecourts.gov.in/hcservices/ 5 complaint dated 14.12.2001 and give him suitable police protection and also to take action against the police officials. This Court, on 26.10.2010 has directed the trial Court to act on the said petition and pass further orders directing the trial Court to complete the trial on or before 30.03.2011. 18. At this juncture, the revision petitioners came forward to file Crl.M.P.No.253 of 2007 under Section 193 Cr.P.C to array the second respondent as accused since the statement of L.W.1/defacto complainant in her statement recorded under Section 161 Cr.P.C during investigation as well as in her sworn statement in the complaint filed before the Revenue Divisional Officer, clearly indicated the role played by the second respondent in the alleged commission of the offence. 19. The learned Additional District and Sessions Judge, Fast Track Court No.3, Madurai, has dismissed the said petition on the ground that the trial of the case is yet to commence and as against the second respondent, if there are materials available, appropriate steps will be taken under Section 319 Cr.P.C to array the second respondent as accused also. 20. There is no difficulty in accepting the proposition laid down in the judgment rendered by the Single Judge of this Court in Krishnammal v. Revenue Divisional Officer, Tuticorin, Tuticorin District and others reported in (2008) 2 MLJ (Crl) 1502 and as per Section 193 Cr.P.C, the Court of Sessions is having unfettered power to summon any person whose complicity in the commission of the crime can prima facie be gathered from the material on record, but the lower Court has taken the view that since the trial of the case is yet to commence, as and when the witnesses depose about the role played by the second respondent in the alleged commission of the offence, appropriate steps will be taken under Section 319 Cr.P.C against the second respondent also. 21. In the considered opinion of this Court, the remedy open to the revision petitioners/A.3 and A.4 has not been foreclosed forever for the reason that as and when the witnesses concerned speak about the role played by the second respondent, the trial Court would take appropriate steps under Section 319 Cr.P.C. to array some other persons as accused also. 22. In view of the matter, this Court finds that there is no infirmity or error apparent on the face of the record in the impugned order passed by the lower Court. 23. In the result, the Criminal Revision Case is dismissed subject to above observations. The Court of the Additional District and Sessions Judge, Fast Track Court No.3, Madurai, is directed to give utmost preference for the expeditious completion of the trial of the case in S.C.No.129 of 2007 Consequently, the connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(Crl.Side) /TRUE COPY/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 6 To: 1.The Additional District and Sessions Judge, Fast Track Court No.3, Madurai. 2.The Revenue Divisional Officer, Usilampatti, Madurai District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Copy to: The Section Officer, (Criminal Records) Madurai Bench of Madras High Court,Madurai. +1cc to Mr. B.Saravanan, Advocate SR.No.15562 +1cc to Mr.K.Jeganathan, Advocate SR.No.15209 Crl.R.C.(MD)No.20 of 2011 and M.P(MD)No.1 of 2011 26.04.2011 rsb PA/24.05.2011/6P/7C https://hcservices.ecourts.gov.in/hcservices/