1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17.03.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD)No.3 of 2011 and M.P.(MD).No.1 of 2011 Dr.Mariappan ... Petitioner/Petitioner/Accused No.2 Vs. – State represented by the Sub-Inspector of Police, District Crime Branch, Virudhunagar District in Crime No.17 of 2005. ... Respondent/Respondent/Complainant Prayer: Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C. against the order passed by the Judicial Magistrate No.II, Virudhunagar in Crl.M.P.No.4131 of 2007 in C.C.No.68 of 2006 dated 26.11.2010 in dismissing the application filed under Section 239 of Cr.P.C. For Petitioner : M/s. G.Marimuthu For Respondent : Mr.P.Rajendran Govt. Advocate (Crl.side) O R D E R The petitioner is arrayed as second accused in C.C.No.68 of 2006 on the file of the Court of Judicial Magistrate No.II, Virudhunagar and he along with four other accused are facing prosecution for the alleged commission of the offences under Sections 420 r/w. 511 and Section 34 of I.P.C. 2. The case of the prosecution as per the charge sheet is that the first accused viz., Ramkumar lodged a false insurance claim as if he sustained injury on 30.03.2002 and the police has registered a case on 27.05.2002 against the driver of the vehicle viz., Tractor and Trailer bearing registration Nos.TN-67-S-3386 and TN- 67-S-3387 and though the said vehicles have not been involved in the accident and consequently, all of them connived as to cheat the National Insurance Company and obtained compensation of Rs.4 lakhs. In C.C.No.68 of 2006 on the file of the Court of Judicial Magistrate, Srivilliputhur, the petitioner, who is arrayed as accused No.2 filed a petition for discharge under Section 239 of Cr.P.C. in Crl.M.P.No.4131 of 2007 stating that the first accused viz., Ramkumar came to his hospital on 07.03.2002 at about 9.00 https://hcservices.ecourts.gov.in/hcservices/ 2 p.m., stating that he sustained injury while repairing a tractor wheel on 07.03.2002 at 8.30 p.m. and it was found that the first accused required treatment as an in-patient and accordingly, he was admitted as an in-patient. Subsequently, the first accused was operated by Dr.Ganesh Raja in the petitioner's/A2 hospital on 23.03.2002 and he was in-patient till 21.04.2002 and on the said date, the first accused was discharged from the hospital with an advice to review after 18 days. However, the first accused did not turn up for further treatment. It is further stated in the said petition that the first accused after discharge from the petitioner's hospital, seems to have got treatment from the third accused viz., Dr.Mathialagan and he was admitted in his hospital as an in-patient from 22.05.2002 to 26.05.2002 and on the said date, he was discharged from the hospital. Thereafter, the F.I.R. in Crime No.106 of 2002 on the file of Dhalavaipuram Police Station was lodged on 27.05.2002 and on the basis of the medical memo issued by the third accused, the first accused was referred to Government Hospital at Rajapalayam. Much time later the first accused filed M.C.O.P.No.63 of 2005 on the file of the Court of Chief Judicial Magistrate claiming compensation of Rs.4 lakhs. 3. It is the specific case of the petitioner/A2 that he is nothing to do with the alleged commission of the offences and even as per the documents, he has not shared common intention with the other accused and in fact he has been examined as R.W.2 on behalf of the National Insurance Company in M.C.O.P.No.63 of 2005, wherein he has marked the copies of treatment summary as Ex.R1. Hence, the revision petitioner/A2 prayed for discharge. The said application was opposed by the prosecution by filing a counter stating that as a result of the acts placed by all the accused, the National Insurance Company got cheated and therefore, they are rightly charge sheeted for the commission of the offences under Sections 420 r/w. 511 and 34 of I.P.C. and for the reasons, the prosecution prayed for dismissal of the petition. 4. The Court of Judicial Magistrate No.II, Virudhunagar vide order dated 26.11.2010 has dismissed the Crl.M.P.No.4131 of 2007 filed by the petitioner for discharge stating among other things that immediately after the admission of accused No.1 in the hospital of the petitioner/A2, he did not inform the said fact in the police officials and therefore, there is a prima facie case made out against the petitioner/A2 for proceeding further and challenging the vires of the same, the present revision is filed. 5. Heard the submission of Mr.G.Marimuthu, learned counsel appearing for the petitioner and Mr.P.Rajendran, learned Government Advocate (Crl.side) and this Court also perused the materials available on record in the form of typed set of documents. 6. The revision petitioner/A2 was examined as R.W.2 in M.C.O.P.No.63 of 2005 on the file of the Court of Chief Judicial Magistrate, Srivilliputhur on behalf of the de facto complainant viz., the National Insurance Company. A perusal of the certified https://hcservices.ecourts.gov.in/hcservices/ 3 copy of the deposition would disclose that the revision petitioner/A2 is running a hospital under the name and style of Dr.Mariaraj Hospital and they are utilising service of one Dr.Ganesh Raja surgeon. On 07.03.2002, A1 came to the hospital with bleading injury and he was admitted as an in-patient and he was in the hospital between 07.03.2002 and 21.04.2002. On 23.03.3002, surgery was done on his right leg with regard to the fracture sustained by him and A1 offered the explanation when he was repairing the tractor wheel, he sustained injury. On completion of the treatment, he was discharged from the hospital on 21.04.2002 and the treatment summery was marked as Ex.R1. The petitioner/A2 was cross-examined by the counsel appearing for the claimant in the said M.C.O.P.63 of 2005, wherein he reported his stand that A1 took treatment in the hospital as an in-patient. 7. During the course of enquiry in Crl.M.P.No.4131 of 2007 filed by the petitioner/A2 for discharge, following documents were marked on behalf of the petitioner as well as the respondent. Documents on the side of petitioner: 1. Certified copy of the F.I.R. in Crime No.106 of 2002 on the file of Dhalavaipuram Police Station. 2. Copy of Accident Register issued by Ramkumar (A1). 3. Copy of deposition of Dr.Mathiyalagan (A3) in MCOP No.342 of 2002. 4. Copy of treatment summary of Ramkumar (A1) at Dr.R.Mariappan's hospital (A2). 5. Copy of Dr.R.Mariappan (A2) deposition in the said MCOP. 6. Copies of additional statement of objections filed by the de-facto complainant in the MCOP No.63 of 2005. 7. Copies of statement of objections filed by the de-facto complainant in MCOP No.63 of 2005. 8. Copy of MCOP filed by Ramkumar (A1) before the Tribunal. 9. Copy of order in the MCOP No.63 of 2005. Documents on the side of Respondent: 1. Carbon copy of F.I.R. in Crime No.106 of 2002. 2. Copy of final report in Crime No.106 of 2002. 3. Copy of Observation mahazar and rough sketch in Crime No.106 of 2002. 4. Copy of 161(3) Cr.P.c. statement of Ramkumar. 5. Copy of 161(3) Cr.P.C. statement of Chelladurai. 6. Copy of 161(3) Cr.P.C. statement in Ramamoorthy. 7. Copy of 161(3) Cr.P.C. Statement of Thirupathi. 8. Copy of 161(3) Cr.P.C. Statement of Kaliyammal. 9. Copy of 161(3) Cr.P.C. statement of Dr.Mariappan. 10.Copy of 161(3) Cr.P.C. statement of Balakrishnan. 11.Copy of 161(3) Cr.P.C. statement of Lakshmanan. 12.Copy of 161(3) Cr.P.C. statement of P.Dharmanathan. 13. Copy of 161(3) Cr.P.C. statement of Dr.Mathiyalagan. 14. Copy of 16193) Cr.P.C. statement of M.Srinivasan. https://hcservices.ecourts.gov.in/hcservices/ 4 8. A perusal and careful analysis of the materials available on record would disclose that admittedly A1 was admitted as an in- patient in the petitioner's hospital on 07.03.2002 at 9.00 p.m. and as to the injury he offered his explanation stating that while repairing a tractor wheel, he sustained the said injury. A1 was admitted as an in-patient in the hospital run by the revision petitioner and on 23.03.2002, he was operated by surgeon and subsequently, he was discharged on 21.04.2002 with an advice that he should come after some days for further treatment. However, A1 did not turn up and it seems that he subsequently got treatment in A3's hospital in between 22.05.2002 and 26.05.2002. 9. It is also pertinent to point out at this juncture that the revision petitioner/A2 was examined as R.W.2 in M.C.O.P.No.63 of 2005 filed by the accused No.1 for claiming compensation and he was examined as a witness by the respondent viz., the National Insurance Company, who is the de facto complainant in the present case. The de facto complainant viz., the National Insurance Company suspecting some foul play, lodged a complaint on 27.05.2002. 10. Accused No.1 subsequently gave a complaint on 27.05.2002 on the file of Dhalavaipuram police station, on the basis of the medical memo issued by A3, based on which the case in Crime No.100 of 2002 was registered. 11. Ex.P4 is the copy of the treatment summary of A1 issued by A2's hospital and Ex.P5 is the A2's deposition in M.C.O.P.No.63 of 2005 which has been referred to in the earlier paragraphs. 12. The truth and veracity of the treatment summary issued by A2's hospital is not at all disputed and so also the deposition given by A2 as R.W.2 in M.C.O.P.No.63 of 2005 at the behest of the de-facto complainant viz., the National Insurance Company. 13. The only allegation levelled against the petitioner/A2 is that immediately after admission of A1 in his hospital, he did not inform the police. It is the specific stand of the petitioner/A2 that at the time of admission, the injured was enquired into and he replied that he sustained injury, while repairing the tractor wheel. 14. Unless it is a medical legal case the petitioner/A2 is not under obligation to inform the police and since he took the explanation offered for A1 as correct. Thereafter A1 was admitted in the hospital as an in-patient on 07.03.2002 and he was operated on 23.03.2002 and he was discharged on 21.04.2002 and in fact the discharge summary was also marked as Ex.R1 in M.C.O.P.No.63 of 2005 on the file of the Court of Chief Judicial Magistrate, Srivilliputhur. 15. As per the allegations levelled against the petitioner/A2 in the charge sheet, he shared the common intention with the other accused. The following ingredients of Section 34 I.P.C.: https://hcservices.ecourts.gov.in/hcservices/ 5 Ingredients of Section:- To attract section 34, I.P.Code two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person.(2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. 16. It is a settled position of law that the common intention implies acting in concert and there must be a pre-arranged plan which is proved either from conduct or from circumstances or from incriminating the facts. 17. As per the decision of the Honourable Supreme Court of India reported in AIR 1989 SC 1593 : 1989 Cr.L.J. 1782 in Rambilas Singh v. State of Bihar, in order to convict any person with the aid of Section 34, it is not necessary to establish that such accused has done some overt act. There must be material to show that overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused persons. 18. The Honourable Supreme Court in the decision reported in 2002 SCC (Cri.) 1518 in Harjit Singh v. State of Panjab that the subjective element in common intention, therefore, should be proved by objective test. It is only then that one accused can be made vicariously liable for the acts and deeds of the other co-accused. 19. This Court has carefully analysed the materials available on record, in the light of the ratio laid down in the above said decisions of the Honourable Apex Court and found that the materials available on record not even substantiated that the petitioner is something to do with the alleged commission of the offences. Admittedly, the discharge summary issued by the petitioner/A2 evidencing that the accused took treatment between 07.03.2002 and 21.04.2002 is not under dispute. It seems that accused No.1 made a claim as if on 30.03.2002, he sustained injury in the accident and in fact lodged a complaint on 27.05.2002 on the file of Dhalavaipuram Police station which leading to the registration of case in Crime No.100 of 2002. It is pertinent to point out at this juncture that the discharge summary issued by the petitioner's hospital may sustain the case of the prosecution that A1 has not sustained injury on 30.03.2002 for the reason that he was taking treatment in the petitioner's hospital on that day. 20. In the considered opinion of the Court, the materials relied on by the prosecution do not prima facie disclose the commission of the offence on the part of the petitioner/A2 and therefore, he is entitled to be discharged. 21. In the result, the revision petition is allowed and the impugned order dated 26.11.2010 in Crl.M.P.No.4131 of 2007 passed by the learned Judicial Magistrate No.II, Virudhunagar is set aside https://hcservices.ecourts.gov.in/hcservices/ 6 and the petitioner is discharged of the charges in C.C.No.68 of 2006 pending on the file of the Court of Judicial Magistrate No.II, Virudhunagar. Consequently, the connected Miscellaneous Petition is closed. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To 1. The Judicial Magistrate No.II, Virudhunagar 2. The Sub-Inspector of Police, District Crime Branch, Virudhunagar District. 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.G.Marimuthu, Advocate, Sr.No. 6939 Copy to the Section Officer(Crl. Section), Madurai Bench of Madras High Court, Madurai akv ssk/11.04.2011 /6c -6p/- Crl.R.C.(MD)No.3 of 2011 17.03.2011 https://hcservices.ecourts.gov.in/hcservices/