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2021 DIGILAW 2364 (MAD)

R. Sumithra v. Inspector of Police

2021-09-13

P.VELMURUGAN

body2021
ORDER : This criminal revision case has been filed against the order passed in Crl.M.P.No.4749 of 2019 dated 24.10.2019 in C.C.No.7243 of 2018 by the learned XIV Metropolitan Magistrate, Egmore, Chennai. 2. The 1st respondent police registered a case against the 2nd respondent for the offence under Sections 448, 294(b) 323 and 506(i) IPC based on the complaint given by the petitioner/defacto complainant. After investigation, they laid charge sheet against the 2nd respondent before XIV Metropolitan Magistrate, Egmore, Chennai, and the learned Metropolitan Magistrate taken the charge sheet on file in C.C.No.7243 of 2018 and after completing the formalities, framed the charges and the trial commenced. 3. In order to prove the charges, on the side of the prosecution during trial, totally 5 witnesses were examined as P.W.1 to P.W.5. Out of the 4 witnesses, the defacto complainant was examined in chief as P.W.1. At that state, the petitioner/ defacto complainant filed a petition before the magistrate invoking Section 319 read with Section 216 of Cr.P.C. to implead the 3rd and 4th respondents as A2 and A3 and the said petition was taken on file in M.P.4749 of 2019 and after enquiry, the learned Metropolitan Magistrate, dismissed the petition. Challenging the same, the defacto complainant has filed the present revision before this court. 4. The Learned counsel for the petitioner/defacto complainant would submit that the defacto complainant in her complaint itself has stated that the 3rd and 4th respondents also trespassed into her house along with the 2nd respondent. Even in the statement recorded under Section 161 Cr.P.C., the defacto complainant has reiterated the same. Whereas, the learned Magistrate without considering the same, dismissed the petition filed by the defacto complainant seeking to implead the 3rd and 4th respondents as accused. He would further submit that totally 5 witness were examined and none of them were cross examined. Further, the defacto complainant in her chief examination has clearly stated the names of the 3rd and 4th respondents and deposed that the 3rd and 4th respondents were also present along with the 2nd respondent on the date of offence. Therefore, the order of the Magistrate warrants interference of this Court and that the revision may be allowed. 5. Further, the defacto complainant in her chief examination has clearly stated the names of the 3rd and 4th respondents and deposed that the 3rd and 4th respondents were also present along with the 2nd respondent on the date of offence. Therefore, the order of the Magistrate warrants interference of this Court and that the revision may be allowed. 5. The learned counsel for the respondents 2 and 3 would submit that there is no specific allegation against the proposed accused/3rd and 4th respondents and there is no prima facie case is made out against them. Even in the complaint and in the evidence, there is no specific allegation against the 3rd and 4th respondents except the fact that they accompanied the 2nd respondent/accused. Therefore, the trial court rightly gone into the entire aspects and since there was no prima facie allegation and no materials against the proposed respondents/3rd and 4th respondents to implead them as accused, dismissed the petition filed by the defacto complainant. The learned counsel by placing reliance of the following Judgments of the Hon'ble Supreme Court would submit that mere mentioning of name of a person is not sufficient and there must be a prima facie allegation or material to implead him as an accused. 1. (2019) 4 SCC 342 in Periyasami and Others Vs. S.Nallasamy 2. (2019) 4 SCC 556 in Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others 3. (2019) 4 SCC 329 in Dev Wati and Others Vs. State of Haryana and Another 4. (2017) 7 SCC 706 in Brijendra Singh and Others Vs. State of Rajasthan 5. (2017) 16 SCC 226 in S.ohammed Ispahani Vs. Yogendra Chandak and Others. The learned Counsel would further submit that the power of trial court for invoking Section 319 Cr.P.C. is not an automatic one. It is the discretionary power of the trial Judge to find whether there are strong material evidence available and whether the situation warrants. Without any allegation or materials, no one can be impleaded as an accused invoking Section 319 Cr.P.C. He would reiterate that the Hon'ble Supreme Court has clearly held that mere bald allegation is not sufficient and there must be a specific allegation against the person whom to be impleaded as an accused. Therefore there is no merit in the revision and the revision may be dismissed. 6. Therefore there is no merit in the revision and the revision may be dismissed. 6. The case of the petitioner is that on 09.01.2018 at about 5.30 p.m. the 2nd respondent who is a police Head Constable trespassed into the house of the defacto complainant and abused her in filthy language and also slapped her and also attacked her son. Though the defacto complainant requested the 2nd respondent not to beat her son and tendered apology, she had not listened to her and continued to attack the son of the defacto complainant, due to which, he sustained head injury. Hence, the defacto complainant lodged a complaint before the 1st respondent police for which, the defacto complainant was issued CSR No.16 of 2018. Therefore, since the respondent police not registered the F.I.R., the petitioner/defacto complainant approached this Court vide Crl.O.P.No.2055 of 2018 seeking for a direction to the respondent police to register the F.I.R. against the respondents 2 to 4 herein and this Court by order dated 24.01.2018 directed the respondent police to register F.I.R. against the said three persons. However, the respondent police did not take any action and thereby, the petitioner/defacto complainant left with no other option, sent a copy of papers in contempt petition and only thereafter, the respondent police registered the case in F.I.R. No.200 of 2018. After obtaining the copy of the F.I.R., the petitioner/defacto complainant came to know that the case was registered only against the 2nd respondent and the names of the two other persons who accompanied the 2nd respondent on the date of occurrence, was not included. In the meantime, investigation was completed and the same was taken on file in C.C.No.7243 of 2018 by the learned XIV Metropolitan Magistrate, Egmore, Chennai. Therefore, the petitioner filed a petition in Crl.M.P.No.4749 of 2019 invoking Section 319 read with Section 216 of Cr.P.C. to implead the 3rd and 4th respondents as A2 and A3 and after enquiry, the learned Magistrate, dismissed the same by order dated 24.10.2019. Challenging the same, the present revision has been filed before this Court. 7. Therefore, the petitioner filed a petition in Crl.M.P.No.4749 of 2019 invoking Section 319 read with Section 216 of Cr.P.C. to implead the 3rd and 4th respondents as A2 and A3 and after enquiry, the learned Magistrate, dismissed the same by order dated 24.10.2019. Challenging the same, the present revision has been filed before this Court. 7. A reading of the complaint and the statement of the defacto complainant recorded under Section 161 Cr.P.C. and her deposition would go to show that the 2nd respondent trespassed into the house of the defacto complainant and beaten her and also attacked her son and that the husband and relative of the 2nd respondent were also present along with the 2nd respondent at the time of occurrence. Therefore, it is clear that apart from the 2nd respondent, the 3rd and 4th respondents also trespassed into the house of the defacto complainant. Further, it is seen that the 1st respondent has not examined any witnesses relating to the occurrence. Though there were allegations against the 3rd and 4th respondents, the trial court failed to look into the same. 8. Considering the allegations made in the complaint and in the statement recorded from the defacto complainant under Section 161 Cr.P.C. and the deposition of the witnesses in chief examination, this Court is of the view that there are sufficient reasons to implead the proposed respondents as accused. At the stage of impleading the accused under Section 319 Cr.P.C., the Court has to consider the material with a view to find out if there is sufficient ground for prosecuting that the accused has committed the offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. If prima facie materials are sufficient against the said persons, then they can be impleaded as accused and the citations referred to by the learned counsel for the 2nd and 3rd respondents are not applicable to the present case on hand. The facts and circumstances of the case in the citations are entirely different from the case on hand. 9. If prima facie materials are sufficient against the said persons, then they can be impleaded as accused and the citations referred to by the learned counsel for the 2nd and 3rd respondents are not applicable to the present case on hand. The facts and circumstances of the case in the citations are entirely different from the case on hand. 9. In this case the defacto complainant has given a specific allegations against the 2nd respondent who is a Woman Head Constable that she had trespassed into her house and beaten her and her son and she has further stated that the 3rd and 4th respondents had also trespassed into her house and they were also present along with the 2nd respondent. Therefore, this Court finds that there is perversity in the order passed by the trial Court which warrants interference of this Court. 10. Accordingly, the order passed in Crl.M.P.No.4749 of 2019 dated 24.10.2019 in C.C.No.7243 of 2018 on the file of the XIV Metropolitan Magistrate, Egmore, Chennai, is set aside. 11. The learned XIV Metropolitan Magistrate, Egmore, Chennai, is directed to implead the 3rd and 4th respondents as A2 and A3 in C.C. No.7243 of 2018 and after giving them opportunity, frame charges and proceed with the case in accordance with law. Since, the defence has not cross examined the witnesses so far, after impleading the 3rd and 4th respondents who are none other than the husband and relative of the 2nd respondent/accused, they can take their defense during cross examination in the manner known to law and the respondents are at liberty to take their defence. 12. With the above observations, this Criminal Revision Case is allowed. Consequently, connected Miscellaneous Petition is closed.