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2017 DIGILAW 1495 (MAD)

Yogendra Chandak v. Mehdi Ispahani

2017-06-01

P.VELMURUGAN

body2017
ORDER : This criminal revision petition has been filed to set aside the order dated 17.08.2015 made in Crl.M.P.No.4420 of 2015 in C.C.No.4108 of 2013 on the file of the Chief Metropolitan Magistrate, Chennai, dismissing the petition filed by the prosecution under Section 319 of Cr.P.C. to implead the respondents 1 to 4 therein as accused. 2. The brief facts of the prosecution case are as follows: The petitioner's father was a tenant under a registered lease deed in the premises situated at Door No.35, New Door No.9, Anna Salai, Chennai - 2, which belongs to the respondents 1 to 3/landlords. The respondents 1 to 3 initiated RCOP proceedings against the father of the petitioner and in R.C.O.P.No.311 of 2006, the learned Judge of XI Small Causes Court, Chennai passed an order of eviction against the petitioner's father on 26.02.2007, against which an appeal in R.C.A.No.267 of 2006 is pending before the VII Small Causes Court, Chennai. While the appeal was pending, on 27.04.2007 at about 12.30 p.m., 50 to 60 rowdy elements armed with deadly weapons entered the premises and threatened the petitioner's staff and started damaging all the valuable articles threw out the articles on the road and took away the laptop, computers and other antique valuable articles available in the premises. Therefore, the petitioner's father lodged a complaint before the respondent police, however, they refused to register the case and hence, the father of the petitioner moved this Court by way of filing Crl.O.P.No.29386/2007 and this Court by an order dated 12.10.2007 was pleaded to direct the 5th respondent CBCID to register a case. Accordingly, a case in crime No.3 of 2008 was registered by the 5th respondent against the respondents 1 to 3 and other persons for the offences under Section 379 of I.P.C. During the investigation, the respondents approached this Court by filing a quash petition in Crl.O.P.No.6448 of 2009. After hearing both sides, this Court was not inclined to quash the same and expressed that respondents 1 to 3 were involved in the criminal offence and hence, the counsel for the respondents 1 to 3 withdrew the quash petition with necessary endorsement. After hearing both sides, this Court was not inclined to quash the same and expressed that respondents 1 to 3 were involved in the criminal offence and hence, the counsel for the respondents 1 to 3 withdrew the quash petition with necessary endorsement. Thereafter, the respondent after completion of investigation, filed charge sheet in C.C.No.4108 of 2013, excluding the names of respondents 1 to 4 for the offences under Sections 379, 427, 341, 379 read with 34 and Section 3(1) of Tamil Nadu Property Prevention of Damage and Loss Act, 1992. Since, the petitioner's father, who was the defacto complainant died, the petitioner was examined as P.W.1 and in his evidence also, he has clearly named the respondents 1 to 4 and their overt acts. It is further submitted that six witnesses have been examined and thereafter, the learned Special Public Prosecutor filed a petition under Section 319 of Cr.P.C. to implicate the respondents 1 to 4 as accused. The fourth respondent is the bailiff working in the Small Causes Court. However, the learned Chief Metropolitan Magistrate dismissed the application stating that no one has spoken about the occurrence. Therefore, since the father of the petitioner died, the petitioner has filed this revision. 3. The learned counsel for the petitioner would submit that after the investigation, final report has been filed by CBCID, excluding the respondents 1 to 3 herein. Subsequently, during the trial only, the prosecution has filed application under Section 319 of Cr.P.C., to implead them as accused. From the material evidence available on records would clearly show the involvement of these respondent/landlords and bailiff. The prosecution has purposefully omitted them to implicate as accused in the present case. However, the trial Court without considering the materials available on records erroneously dismissed the application. The witnesses who were examined during investigation have clearly mentioned the name of all the persons involved in the offence, particularly the respondents 1 to 4. In the statements recorded under Section 161(3) of Cr.P.C., by the police, the witnesses have clearly narrated the incident and conspiracy hatched by the respondents 1 to 3, who were the ultimate beneficiaries. Even the High Court had refused to quash the case against the main accused and hence, the evidence clearly reveals that the respondent 1 to 4 have instigated, assisted and participated in the offences. Even the High Court had refused to quash the case against the main accused and hence, the evidence clearly reveals that the respondent 1 to 4 have instigated, assisted and participated in the offences. Therefore, the order passed by the learned Magistrate is liable to be set aside. 4. The learned counsel for the respondents 1 to 3 would submit that the petition itself is not maintainable and devoid of any merit. The petitioner is filed only to harass the respondents. The power given under Section 319 of Cr.P.C., should be used sparingly. The witnesses nowhere stated that the respondents 1 to 4 had involved in the alleged offence. The materials collected during the course of the trial alone can be considered. The prosecution has not added the respondents 1 to 4 as accused while filing the final report. No protest petition was filed to include the respondent 1 to 4 as accused and that stage has been crossed. The statements recorded under Section 161(3) of Cr.P.C. along with final report cannot be taken into account at this stage. No offence is made out against these respondents and the trial Court, after considering the evidence, has correctly dismissed the application and there is no reason to interfere with the order of this Court. 5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents 1 to 3 and the learned Additional Public Prosecutor appearing for the 5th respondent and perused the materials available on record along with the impugned order passed by the learned Chief Metropolitan Magistrate. 6. The power under Section 319 of Cr.P.C. is an extraordinary power conferred on the Court to do real justice. It should be used with caution and only if compelling reasons existing for proceeding against a person against whom action has not been taken. Where the evidence shows the involvement of a person in the commission of the crime, the Court should exercise its power under S.319 Cr.P.C. and summon him as an additional accused. It should be used with caution and only if compelling reasons existing for proceeding against a person against whom action has not been taken. Where the evidence shows the involvement of a person in the commission of the crime, the Court should exercise its power under S.319 Cr.P.C. and summon him as an additional accused. The co-accused has no locus standi to contest application moved under Section 319 of Cr.P.C. The Court has to use the power under Section 319 of Cr.P.C., sparingly and primarily to advance the cause of criminal justice but not as a handle at the hands of the complainant to cause harassment to the person who is not involved in the commission of the crime. The power under Section 319 of Cr.P.C. can be exercised at any stage of the case. A defacto complainant or even an independent witness who has witnessed the incident can also file application under Section 319 of Cr.P.C. Section 319(1) of Cr.P.C. comes into play in an on-going inquiry into or trial of an offence. It is thus essential that the need to proceed against the person other than the accused, appearing to be guilty of an offence arises only on evidence recorded in the course of any inquiry or trial. A person can be added as an accused invoking the provisions under Section 319 of the Code not only for the same offence but also for even a different offence but that offence shall be such that in respect of which both the accused could be tried together? The evidence collected during investigation, the documents relied on by the prosecution for the purpose of proving the guilt of the accused at the stage of the trial and on consideration whereof the Committing Court makes up its mind to commit or not to commit the case to the Court of Session. Even otherwise the statements of witnesses recorded under Section 161 of Cr.P.C would constitute ‘documents’. Evidence in Section 319 of Cr.P.C. includes the statements of the prosecution witnesses recorded under Section 161 of Cr.P.C. The accused be summoned under Section 319 of Cr.P.C., after examination of a single witness. 7. Even otherwise the statements of witnesses recorded under Section 161 of Cr.P.C would constitute ‘documents’. Evidence in Section 319 of Cr.P.C. includes the statements of the prosecution witnesses recorded under Section 161 of Cr.P.C. The accused be summoned under Section 319 of Cr.P.C., after examination of a single witness. 7. In the present case, the case of the respondents is that the first information report, 161 of Cr.P.C. statements and other documents produced along with the final report cannot be taken into consideration for the purpose of Section 319 of Cr.P.C. In support of their contention, the learned counsel for the respondents 1 to 3 has relied on the decision of the Hon'ble Apex Court reported in (2012) 1 SCC (Cri.) 867 Saraiben Ashwinkumar Shah and Others Vs. State of Gujarat and another and the decision of this Court reported in (2014) 1 MLJ (Crl.) 400, State rep. By the Inspector of Police, Mangalampettai Police Station, Cuddalore District and Another and submitted that there are no materials to show that the respondents 1 to 4 have involved in the crime. 8. Per contra, the learned counsel for the petitioner would submit that though during the trial six witnesses have been examined and the evidence of witnesses have clearly spoken about the involvement of other accused, the trial Judge failed to consider the evidence let in by the prosecution witnesses. 9. On a careful perusal of the materials, it is found that the father of the petitioner was a tenant and the respondents 1 to 3 herein are the landlords of the property situated at Door No.35, New Door No.9, Anna Salai, Chennai - 2. The fourth respondent is the bailiff of the Small Causes Court, who is in collusion with the other respondents, who involved in the commission of offence. 10. Perusal of evidence of P.W.1 would show that the complaint has been lodged against the respondents 1 to 4 and the first information report has also been registered against the respondents 1 to 4. However, after investigation, the names of the respondents 1 to 4 herein did not find place in the charge sheet. After framing of charges and during the trial only, the prosecution has filed the petition under Section 319 of Cr.P.C. to implicate the respondents 1 to 4 as accused in this case. However, after investigation, the names of the respondents 1 to 4 herein did not find place in the charge sheet. After framing of charges and during the trial only, the prosecution has filed the petition under Section 319 of Cr.P.C. to implicate the respondents 1 to 4 as accused in this case. Perusal of the evidence of P.W.1, who is the petitioner herein has clearly spoken about the offence committed by the respondents 1 to 4 and Ex.P1 would also clearly show the involvement of the respondents 1 to 4 in the commission of offence as mentioned in the petition. 11. Considering all the above facts and circumstances of the case, I am of the view that the learned trial Judge has not considered all the aspects in a proper manner and mechanically dismissed the application filed under Section 319 of Cr.P.C. and therefore, the order dated 17.08.2015 made in Crl.M.P.No.4420 of 2015 in C.C.No.4108 of 2013 on the file of the Chief Metropolitan Magistrate, Chennai is liable to be set aside. 12. Accordingly, the criminal revision case is allowed and the order dated 17.08.2015 made in Crl.M.P.No.4420 of 2015 in C.C.No.4108 of 2013 on the file of the Chief Metropolitan Magistrate, Chennai is hereby set aside. The learned Chief Metropolitan Magistrate, Chennai is directed to implicate the respondents 1 to 4 herein as accused in C.C.No.4108 of 2013 on his file and proceed the trial in accordance with law. Since the date of offence is on 27.04.2007, the trial Court is directed to dispose the case within a period of three months from the date of receipt of a copy of this order. Registry is directed to communicate the order, within a week from today to the trial Court. On such receipt of the copy of the order, the trial Court is directed to report the same with acknowledgment immediately, failing which, the same will be viewed seriously. Consequently, connected miscellaneous petition is closed.