This Criminal Revision Case filed challenging the legality of the summon issued by the trial Court under Section 61 of Cr.P.C to the petitioner arraying him as an additional accused in the pending trial in C.C.No.45 of 2010.

2. The second respondent/Bakiyam gave a complaint to the first respondent police on 11.05.2007 alleging that she is the owner of S.No.508/6C at Kuppaiyanallur Village, Uthiremerur. On 08.05.2007, her land was measured by the Taluk Surveyor and boundaries were fixed. While so, on that day at 11.30 p.m., (i)Asirvatham; (ii)Arokiyadoss; Page No.2/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016

(iii)Sagayam;(iv)Sulochana and (v)Anthony Pal assembled unlawfully, they all trespassed into the land and removed the fence. When her brother Immanuvel and her brother's wife, Lurthumary questioned them, they threatened to kill them. The complaint was registered in Crime No. 308 of 2007 under Sections 147 , 447 , 427 and 506(i) of IPC r/w Sections 2 and 3 Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992.

3. After completion of investigation, final report was filed against Asirvatham(A1), Arokiyadoss(A2), Sagayam(A3) and Sulochana (A4). The name of the 5th accused Anthony Pal was dropped for the offence under Sections 447, 427 and 506(i) was taken cognizance. The second respondent/defacto complainant filed the petition under Section 319 of Cr.P.C., before the District Munsif-cum-Judicial Magistrate, Uthiramerur to include Anthony Pal as 5th accused in the case and issue summon to him for his appearance.

Page No.3/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016

4. In the said petition, it is alleged that Anthony Pal, S/o Kitherian is the prime culprit of the offence. Without proper investigation, his name has been dropped and the value of the property damaged is mentioned erroneously as Rs.200/-, though the property damaged was worth about Rs.3000/-. Stating that she filed a petition before the Hon'ble High Court seeking direction to include Anthony Pal as 5th accused and the Hon'ble High Court, vide order dated 18.11.2011 in Crl.O.P.No.10144 of 2011 permitted the petitioner to file petition under Section 319 of Cr.P.C before the trial Court and seek redressal. Accordingly, the petition was filed.

5. Pursuant to her petition under Section 319 of Cr.P.C, the learned District Munsif-cum- Judicial Magistrate has caused summon to the petitioner under Section 61 of Cr.P.C., for appearance of the petitioner in person and answer to the charges under Sections 447 , 427 and 506 (i) of IPC.

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6. The learned counsel appearing for the petitioner submitted that the impugned summon has been issued on 22.12.2015 without proper appreciation of the law and facts. Based on the statement of one Lurthumary examined as PW-5, the present impugned summon has been issued after five years of the occurrence. Without any reason the summon issued to the petitioner to face the charges. The petitioner is forced to face the trial by including him as an additional accused without causing any notice.

7. The Report called for by this Court, vide order dated 18.11.2021, to ascertain whether any notice caused to the petitioner before arraying him as an additional accused. In response to the direction, the District Munsif cum Judicial Magistrate, Uthiramerur has forwarded his report dated 19.01.2022 stating that on 27.10.2015 the docket entry shows, Page No.5/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016 “A1 absent. 317 petition filed and allowed. Other accused present. On examination of PW-1, PW-2, PW-5 substantial evidence against Anthony Pal. Issue summon under Section 319 of Cr.P.C. Hon'ble High Court order call on 24.11.2015 for LWs.”

8. From the Docket order, it appears that on the petition filed by the defacto complainant under Section 319 of Cr.P.C, the learned District Munsif-cum-Judicial Magistrate has ordered to issue summon under Section 319 Cr.P.C for further proceedings. Whereas the summon signed by the District Munsif cum Judicial Magistrate reads that, “summon is issued under Section 61 of Cr.P.C., to the accused to answer the charges under Sections 447 , 427 and 506(i) of IPC.”

9. The perusal of the record reveals that the impugned summon under Section 61 of Cr.P.C., issued after examining 5 witnesses on the side of the prosecution, out of the 10 witnesses listed in the Annexure to the Final Report. The defacto complainant Bakiyam (PW-1), her brother Page No.6/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016 Immanuvel (PW-2) and her brother's wife Lurthumary (PW-5) had named the petitioner herein as one among the five accused present and involved in the alleged crime. Ramani (PW-3) and Pathiyanathan (PW-4) turned hostile. These two witnesses, who were turned hostile are independent witnesses. Whereas PW-1, PW-2 and PW-5 are related to each other and interested witnesses.

10. According to the learned counsel for the petitioner, the trial Court, before including the petitioner as an additional accused has not considered the guidelines of the Hon'ble Supreme Court regarding the power of the Court under Section 319 of Cr.P.C. and the principles laid down by the Constitutional Bench of the Hon'ble Supreme Court rendered in Hardeep Singh v. State of Punjab and another reported in (2014)3 SCC

92. Further, though there is no implicit requirement of hearing the person sought tobe added as accused before proceeding under Section 319 of Cr.P.C., the principle of natural justice warrants such a hearing, since he Page No.7/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016 will be arrayed as an accused in the mid of the trial and the cognizance of the offence will be dated back, on the date when the trial originally had commenced. Offences under Sections 427 , 447 and 506(i) of IPC are punishable with imprisonment of a term less than 3 years. If he is included as additional accused after 5 years of the occurrence, but for Section 319(4)(b) of Cr.P.C., the Court cannot take cognizance in view of limitation prescribed under Section 468 of the Criminal Procedure Code.

11. The learned Government Advocate (Crl.Side) submitted that the Power under Section 319 of Code of Criminal Procedure, 1973 is conferred on the Court to ensure that Justice is done to the society by bringing to book all those guilty of an offence. One of the aims and purpose of the criminal justice system is to maintain social order. It is necessary in that context to ensure that no one who appears to be guilty escapes a proper trial in relation to that guilt. There is also duty upon the Court to render justice to the victim of an offence. It is in recognition of this that Cr.P.C as Page No.8/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016 specifically conferred power on the Court to proceed against others not arrayed as accused in the circumstances set out by Section 319 Cr.P.C. It is a salutary power enabling the discharge of a Court's obligation to the society to bring to book all those guilty of a crime.

12. The summons issued under Section 61 of Cr.P.C., to answer the charges though not be in tune with the docket order passed by the learned Judicial Magistrate on 27.10.2015, the crime by the petitioner against whom evidence during the course of trial surfaced provides sufficient reason for he to be tried together with other accused. Therefore, in the light of strong and cogent evidence led before the Court in the course of trial prima facie case is made out against the petitioner. Hence, the alleged procedural lapse, even if any cannot be a ground to quash the proceedings initiated under Section 319 of Cr.P.C.

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13. In Baskar v. State , represented by Inspector of Police reported in [(2001) SCC online Mad 221], this Court relying upon the earlier judgment of the Hon'ble Madras High Court rendered in Arunachalam Chairman, EID Parry v. R.Palaniappan, reported [( 1995) 2 MLW 260] and Michael Machado v. Central Bureau of Investigation reported in [(2000) SCC (Cri.) 609] has held that under the guided judicial principle of policy and principle of natural justice, if there is any offence the persons sought to be added as accused before proceeding under Section 319 Cr.P.C must be heard in person and Court should exercise judicial function as provided under the Code by serving notice upon the new person to be added as accused. Besides, in Sarojben Ashwinkumar Shah v. State of Gujarat reported in [(2011) 13 SCC 316] , the Hon'ble Supreme Court has observed as below:-

14. In Hardeep Singh case (cited supra), for Question Nos.(iv) and (v), the Constitutional Bench of the Hon'ble Supreme Court has answered as below:-

The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

Question (v)—Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?

Answer Page No.12/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016 117.6.A person not named in the FIR or a person though named in the FIR but has not been charge- sheeted or a person who has been discharged can be summoned under Section 319 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh.”

15. It is also appropriate to refer para 106 of the Constitutional Bench judgment which provides more clarity of the issue. “Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction”. Page No.13/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016

16. In view of the above precedents, this Court quash the summon issued to the petitioner by the trial Court under Section 61 of Cr.P.C.

17. The trial Court shall cause fresh summons under Section 319 of Cr.P.C., to the petitioner herein and on his appearance, he shall be served with the copy of documents relied by the prosecution including the deposition of witnesses sofar recorded. After hearing the petitioner herein, the trial Court shall decide upon whether the petitioner herein has to be arraigned as additional accused or not by taking the guidelines laid by the Hon'ble Apex Court in the Hardeep Singh case.

18. With the above direction, this Criminal Revision Case is disposed of. Consequently, connected Miscellaneous Petition is closed.

06.09.2022 Index:yes ari Page No.14/16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016 To :

https://www.mhc.tn.gov.in/judis Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016 DR.G.JAYACHANDRAN,J.

ari Delivery Order made in Crl.R.C.No.564 of 2016 and Crl.M.P.No.3790 of 2016 06.09.2022 Page No.16/16 https://www.mhc.tn.gov.in/judis