Research › Browse › Judgment

Madras High Court · body

1996 DIGILAW 102 (MAD)

Selvaraj v. Marimuthu and Another

1996-01-24

KARPAGAVINAYAGAM

body1996
Judgment : This revision is directed against the order passed in Crl.M.P. No.2146 of 1993 in P.R.C. No.3 of 1993, dated 18. 1993 on the file of Judicial Magistrate No. 1, Pattukottai, by which the revision petitioner-Selvaraj was directed to be included as one of the accused viz., accused 55 in the above P.R.C. and summons to be issued to him. The said, order impugned herein has been passed on the application filed by one Marimuthu, who is said to be the first informant in the P.R.C., which has been taken on file for an offence under Sec.307, I.P.C. Though reference about the involvement of the revision petitioner-Selvaraj was made in the record, the 2nd respondent/police has thought it fit, for the reasons best known to them, to omit the name of the revision petitioner in the charge-sheet. The said Marimuthu, the first informant has filed the application before the learned Magistrate under Sec.319, Crl.P.C, which is an irrelevant section, as contended by learned counsel for the revision petitioner. The learned Magistrate who has taken cognizance of the offence under Sec.307, I.P.C., against accused 1 to 54, has considered this application and after perusal of the records found out that there are some reference about the involvement of revision petitioner- Selvaraj, and on that basis, the learned Magistrate has passed the order, directing the issue of summons and the impleading of the revision petitioner as accused No.55. 2. It is represented by learned counsel Mr.S. Mohan, appearing on behalf of Mr. Shanmugasundaram, counsel for the revision petitioner that the Magistrate has committed an illegality in passing the order on the application filed by the first informant, under Sec. 319, Crl.P.C, by issuing summons to the revision petitioner and adding him as accused No.55, without understanding the concept of Sec.319, Crl.P.C. He also relied upon the judgments reported in Rajendran v. Drug Inspector, G.T., Madras, 1991 L.W. (Crl.) 78 and 1995 Crimes 351 in support of his contention that Sec.319, Crl.P.C. though refers before enquiry and trial’, the Magistrate can consider the evidence recorded only either at the stage of enquiry or at the stage of trial and then come to the conclusion in this respect. This mandatory procedure has not been followed by the learned Magistrate, which is clearly illegal. I find sufficient force in the contention raised by learned counsel Mr.S. Mohan. 3. This mandatory procedure has not been followed by the learned Magistrate, which is clearly illegal. I find sufficient force in the contention raised by learned counsel Mr.S. Mohan. 3. Per contra, Mr.Govindarajan, learned Government Advocate, represents that the order of the learned Magistrate has been passed following the judgment of the Supreme Court reported in Raghubans Dubey v. State of Bihar, 1967 M.L.J. (Crl.) 750: A.I.R. 1967 S.C 1167: (1967)1 S.C.W.R. 465:1967 S.C.D. 455:1967 Crl.L.J. 1081: (1967)2 An.L.T. 23: (1967)2 S.C.R. 423 : (1967)2 S.C.J. 427, I have gone through the judgment of the Supreme Court referred to above, wherein the Supreme Court has, of course said the scope of the power of the Magistrate to issue summons even after taking cognizance, because action taken is with reference to the offence and not the offender. It is not applicable to the case on hand, because the very application, on the basis of which the order has been passed, was filed by the first informant requesting the court to invoke Sec.319, Crl.P.C., without adducing any evidence. The decisions of our High Court as well as the Supreme Court specifically held that impleading of the accused would be only on the basis of evidence recorded before the court and not otherwise. So the decisions referred to by learned counsel Mr.S. Mohan is squarely applicable to this case and therefore, the order passed by the learned Magistrate is liable to be set aside. 4. Accordingly this revision is allowed. The order passed by the Judicial Magistrate No.1, Pattukottai, in Crl.M.P. No.2146 of 1993 in P.R.C. No.3 of 1993, dated 18. 1993 is set aside. The Judicial Magistrate concerned is directed to take up the case for hearing and dispose the same as expeditiously as possible for the purpose of committal in view of the fact that the case is triable by the Court of Sessions.