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1988 DIGILAW 252 (MAD)

Pullikkadan Narayanan v. Jayarajan

1988-06-27

PADMINI JESUDURAI

body1988
Order This is a petition invoking the inherent powers of this Court under Sec.482, Criminal Procedure Code by one of the accused to get himself impleaded in the criminal revision petition filed by the complainant against the order passed by the Magistrate, accepting the referred report filed by the investigating police. 2. Facts necessary for the decision of the legal contentions raised in this petition are briefly as follows: Regarding certain incidents that took place on 20.3.1983, the first respondent gave a complaint to the second respondent against certain police officials of the State of Kerala, including the petitioner herein which the second respondent registered as Crime No.45 of 1983 of Cherambadi police station for offences under Secs.147, 342, 364, 384, 323 and 327, Indian Penal Code. After investigation, the Inspector of Police, Crime Branch, C.I.D., Coimbatore Urban Unit, filed a final report stating that though the investigation revealed that the petitioner and others had committed the offences complained of and sanction was sought for from the Government of Kerala, through the Government of Tamil Nadu, the Government of Tamil Nadu had conveyed its decision to drop further action against the petitioner and the other police officials from Kerala and that therefore, the case might be closed and further action dropped. Learned Sub Divisional Judicial Magistrate, Gudalur by order dated 16.2.1987 on the basis of the above report, dropped further action in the case. The above order of the learned Magistrate is challenged by the first respondent, who has filed Criminal R.C. No.353 of 1987 in this Court. The petitioner, who was the first accused in the complaint seeks to get himself impleaded as one of the respondents, in the above Revision petition on the ground that he is a necessary party in the revision and he has to make his submissions before this Court, failing which irreparable damage would be caused to his career. 3. Thiru P.M.Ansare, learned counsel for the petitioner contended that the petitioner could be described as an aggrieved person in the same way in which certain persons shown as aggrieved persons in Sec.198 and 469(1) (b), Criminal Procedure Code, and that, therefore, since the order’ that could be passed in this revision could prejudicially affect his interests he should be made a party to the proceedings and should also be heard. Reliance was placed upon a decision of the Supreme Court in Bhagwant Singh v. Commissioner of Police Bhagwant Singh v. Commissioner of Police A.I.R. 1985 S.C. 1285 4. Per contra Thiru V.Gopinath, learned counsel for the first respondent contended that the Supreme Court in Chandra Deo v. Prakash Chandra Chandra Deo v. Prakash Chandra A.I.R. 1963 S.C. 1430: (1963)2 Crl.L.J. 397 had made it clear that an accused could not come into the picture in any proceeding till proceeding till process was issued to him under Chapter XIV, Criminal Procedure Code and that the principle laid down by the Supreme Court in Bhagwant Singh v. Commissioner of Police Bhagwant Singh v. Commissioner of Police A.I.R. 1985 S.C. 1285 could not be extended to an accused in a proceeding prior to the issuance of process under Sec.204, Criminal Procedure Code. 5. The question that arises for determination is whether the accused in a revision against orders passed in proceedings prior to issue of process, is a necessary party to the proceedings and has a right of audiance? 6. I shall first refer to the decision of the Supreme Court in Chandra Deo v. Prakash Chandra Chandra Deo v. Prakash Chandra A.I.R. 1963S.C 1430 : (1963)2 Crl. L.J.397.In an enquiry under Sec.202, Criminal Procedure Code the learned Magistrate had permitted the accused to appear through his counsel. It was also suggested that two witnesses were examined by the learned Magistrate as Court witnesses at the instance of the counsel for the accused. When the legality of the above proceeding was ultimately challenged before the Supreme Court, the Court observed: “Taking the first ground, it seems to me clear that the entire scheme of Chapter XVI. Criminal Procedure Code, that an accused person does not come into the picture at all, till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent, with a view to be informed of what is going on. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent, with a view to be informed of what is going on. But since the very question for considering being, whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so.” The Supreme Court also found that the two Court witnesses were shown in the F.I.R., itself as associates of the accused and that, therefore, the inference that these witnesses would not have been summoned by the Magistrate, unless suggestion to that effect has been made by the counsel for the accused, was irresistible. The enquiry was, therefore vitiated. In arriving at the above conclusion, the Court indicated that one of the objects of an enquiry under Sec.202, Criminal Procedure Code was to find out the materials available to support the allegation made in the complaint. While it was the bounden duty of the Magistrate to elicit all facts not merely with a view to protect the interest of an absent accused person, but also to bring to book person or persons against whom grave allegations were made. Whether the complaint was frivolous or not had at that stage, necessarily to be determined on the basis of the material placed before him by the complainant and whatever defence the accused could have could be enquired into only at the trial. Permitting the accused to intervene during the enquiry under Sec.202, Criminal Procedure Code would frustrate the very object of the section. The Court felt that was the reason why the legislation had made no specific provision permitting an accused person to take part in an enquiry. The firm stand taken by the Supreme Court in the above said decision has not so far been relaxed, insofar as it relates to the right of notice and the right of audience of an accused in any proceeding prior to the issue to process to him. The only right recognised is the right to be present during the proceedings. 7. The only right recognised is the right to be present during the proceedings. 7. No doubt, the right of notice and right of audience of a private party, viz., the informant, in proceedings relating to action to be taken on a final report filed by the police, after investigation was recognised by the Supreme Court in Bhagwant Singh v. Commissioner of Police Bhagwant Singh v. Commissioner of Police A.I.R. 1985 S.C. 1285 Therein the Court held that before the Magistrate decides to drop proceedings on a final report filed under Sec.173(2)(i) of the Code, either agreeing with the report or disagreeing with the report, the Magistrate is bound to give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. This was found to be necessary in view of the general scheme of the Code which required under Sec.154(2) of the Code to furnish the informant a copy of the F.I.R. free of cost and also under Sec.157(2) of the Code, to inform the informant if the police decided not to investigate the case and also under Sec.173(2)(i) which required the police officer to communicate the informant, the action taken by him and the report forwarded by him to the Magistrate. This is so because the informant, after giving information, does not fade away but is interested in the result of the investigation, and should, therefore, be apprised of the same by the investigating agency. From the above scheme of the Code, the Supreme Court in the above decision extended the same principle, proceedings relating to the Magistrate dropping action after the filing of a final report under Sec.173(2)(i) of the Code. The informant therefore, in those circumstances is entitled to a right of notice and a right of audience. In the same decision, the Supreme Court considered the right of notice and the right of audience of an injured person or a relation of the deceased, who might not be the informant. The Court held that the injured person or a relative of the deceased, though not entitled to ‘a right of notice had a locus to appear before the Magistrate at the time of the consideration of the final report and if he wanted to make his submissions in regard to the report, the Magistrate was bound to hear him. The Court held that the injured person or a relative of the deceased, though not entitled to ‘a right of notice had a locus to appear before the Magistrate at the time of the consideration of the final report and if he wanted to make his submissions in regard to the report, the Magistrate was bound to hear him. On behalf of the petitioner, it is contended that in a revision by a private party, even in a pre-process stage the interests of an accused are likely to to be prejudicially affected and that, therefore, extending the principle laid down by the Supreme Court in the above decision, he would be entitled to a right of notice as in the case of a complaint or at least to a right of auidence as in the case of a relative of a deceased or an injured, who is not the informant. 8. I shall now refer to a decision of M.N.Moorthy, J., of this Court in Thiagarajan v. Ayyamperumat Thiagarajan v. Ayyamperumat 1983 L.W. (Crl.) 212 Therein after discussing the several decisions of this Court, as well as those of other Courts, the learned Judge held that in a revision against the order of a Magistrate dismissing a private complaint under Sec.203, Criminal Procedure Code no notice need be given to the accused. Reliance was placed upon the decision of the Supreme Court in Chandra Deo v. Prakash Chandra Chandra Deo v. Prakash Chandra (1963)2 Crl.L.J. 397: A.I.R. 1963 S.C. 1430. 9. The question whether the accused in any proceeding arising before the issue of process under Sec.204, Criminal Procedure Code has a right of notice could first be considered. As indicated earlier the Supreme Court, in very clear terms. In (1963)2 Crl. L.J. 397: A.I.R. 1963 S. C. 1430 has laid down that the accused does not come into the picture at all. In fact, all proceedings prior to Sec.204, Criminal Procedure Code are aimed at finding out, whether the accused should be called upon to answer any charge. At this stage, it is only the investigating agency or the private party as the case may be and the Court, who have really to consider matters in accordance with the procedures laid down in the Code. Sufficient safeguards are built in these provisions to prevent frivolous prosecutions being initiated. At this stage, it is only the investigating agency or the private party as the case may be and the Court, who have really to consider matters in accordance with the procedures laid down in the Code. Sufficient safeguards are built in these provisions to prevent frivolous prosecutions being initiated. At this stage, the accused cannot be described as a party to any of the proceedings. It is only after the Magistrate has formed an opinion under Sec.204, Criminal Procedure Code that there are sufficient grounds for proceeding against the accused and issues process to him, that the accused really becomes a party to the proceedings. I have, therefore no hesitation to hold that in this criminal revision filed by the complainant against the order of the Magistrate accepting the final report for dropping action, the petitioner is not a party to the proceeding and cannot be impleaded as a respondent. 10. The further question as to whether the petitioner has a right of audience remains to be considered. The Supreme Court in (1963)2 Crl.L.J. 397: A.I.R. 1963 S.C. 1430 has made it clear, that the accused could only be present ‘with a view to be informed of what is going on’. This implies that the presence of the accused is only passive presence and not active participation. If the Supreme Court had found in the above case, that it was not open to the Magistrate in an enquiry under Sec.202, Criminal Procedure Code to put any question to witnesses at the instance of the accused against whom process had not been issued it follows that the accused in a revision, in a pre-process stage has no right of audience. In a revision, the only mode of participation would be addressing arguments. Just as an accused is permitted to be present, to follow the proceedings in an enquiry under Sec.202, Criminal Procedure Code so too, the accused could only be present in a revision arising out of any order passed in a pre-process stage. In a revision, the only mode of participation would be addressing arguments. Just as an accused is permitted to be present, to follow the proceedings in an enquiry under Sec.202, Criminal Procedure Code so too, the accused could only be present in a revision arising out of any order passed in a pre-process stage. The decision of Sengottuvelan, J., of this Court in Saravanatham v. Murugaiyan Saravanatham v. Murugaiyan 1986 L.W. (Crl.) 165 permitting the relation of the deceased to make representations as intervener and oppose a bail application, cannot apply to the facts of the present case, since the Supreme Court, in Chandra Deo v. Prakash Chandra Chandra Deo v. Prakash Chandra (1963)2 Crl.L.J. 397: A.I.R. 1963 S.C. 1430 has clearly stated that till process is issued, under Sec.204, Criminal Procedure Code the accused does not come into the picture. 11. In the result, the petition is dismissed. B.S. ----- Petition dismissed.