Madras High Court
V.Raja vs The State Represented By on 21 January, 2021
Crl.O.P.No.24613 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.01.2021
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.No.24613 of 2019
and Crl.M.P.Nos.16519 & 13087 of 2019
V.Raja .. Petitioner
/versus/
1.The State represented by
The Inspector of Police,
District Crime Branch,
Vilupuram.
2.S.S.Rajendran .. Respondents
Prayer: Criminal Original petition filed under Section 482 of Code of
Criminal Procedure, to set aside the order passed by learned Judicial
Magistrate-I, Villupuram in CMP No.1635 of 2015 in Cr. No.111 of
2014 dated 02.07.2019 on the file of Judicial Magistrate-I,
Villupuram and pass such further or other orders as this Court may
deem fit and proper in the above facts and circumstances of the
case.
For Petitioner :Mr.B.Vijay
For Respondents :Mr.M.Mohammed Riyaz,
Additional Public Prosecutor for R1
Mr.Sundaravadanam for R2
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Crl.O.P.No.24613 of 2019
ORDER
This petition has been filed challenging the order passed by
the Court below dated 02.07.2019 in CMP No.1635 of 2015 by
including the name of the petitioner as A2 in the final report and
issuing summons for the appearance of the petitioner.
2.The 2nd respondent gave a complaint on 11.12.2014 to the
effect that he paid a sum of rupees Seventeen Lakhs to A1 who is
said to have promised the 2nd respondent that he will get a medical
seat for the daughter of the 2nd respondent in a private medical
college. It is further alleged in the complaint that A1 went back on
his promise and was evading the repayment of the amount to the
2nd respondent. The 2nd respondent was attempting to get in contact
with A1 through phone and no money is said to have been repaid to
the 2nd respondent. Till this stage, the petitioner was nowhere in the
scene. It is alleged in the complaint that on 14.11.2014, the 2nd
respondent received a call from two mobile numbers and the caller
identified himself as Raja and that he is an Advocate by profession.
It is further alleged that the said Raja guaranteed the petitioner that
he will stand as a security and will ensure the repayment of money
to the 2nd respondent and further asked 2nd respondent to come to
his office on 25.11.2014 at 7 PM and receive the amount. The 2 nd
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respondent in spite of waiting for the repayment of the amount, did
not receive any amount and he called the petitioner over phone. It
is alleged that the petitioner at that point of time had abused the 2 nd
respondent and threatened him with dire consequences.
3.On the basis of the above complaint, an FIR came to be
registered by the 1st respondent on 18.12.2014 in Crime No.111 of
2014 for the offences under Sections 406, 420, 294(b) and 506 (i)
of IPC. In this FIR, only the name of Srinivasan (A1) was shown as
an accused.
4.The 2nd respondent filed a petition before the Court below
under Section 319 of Cr.P.C. on 18.02.2015 on the ground that the
name of the petitioner was not added in the FIR and that his name
should be added as an accused. It is not known as to how such a
petition is maintainable even before a final report is filed. However,
the Court below had directed the respondent police to enquire upon
this petition and file a report before the Court.
5.The respondent police conducted the investigation and filed
the report before the Court below on 15.06.2019 stating that there
are absolutely no materials as against the petitioner to add as an
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accused in the present case and therefore, his name has been
dropped and the report is only filed against A1 for the offences
under Sections 406 and 420 of IPC.
6.After the final report was filed before the Court below by the
1st respondent, the Court below issued notice to the 2 nd respondent
informing that the name of the petitioner has been dropped from
the final report. Thereafter, an order came to be passed on
02.07.2019 in CMP.1635 of 2015 adding the petitioner as an
accused in the final report and issuing process to the petitioner.
7.Heard Mr.B.Vijay, learned counsel appearing on behalf of
the petitioner, Mr.M.Mohammed Riyaz, learned Additional Public
Prosecutor appearing on behalf of the 1st respondent and
Mr.Sundaravadanam, learned counsel appearing on behalf of the
2nd respondent.
8.The order passed by the Court below is attacked mainly on
the ground that the Court below ought not to have exercised its
jurisdiction under Section 319 of Cr.P.C since, there was no
evidence before the Court below as the trial is yet to commence in
this case. It is further submitted that there was no protest petition
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Crl.O.P.No.24613 of 2019
filed on the side of the 2nd respondent and in spite of the same, the
Court below has revived an application which was filed in the course
of investigation under Section 319 of Cr.P.C. and order has been
passed in this application. Therefore, it is submitted that the order
of the Court below is on the face of it illegal.
9.The procedure adopted by the Court below in adding the
petitioner as an accused in this case, is not in accordance with the
code of criminal procedure. In the first instance, the Court below
ought not to have entertained the application under Section 319 of
Cr.P.C at the time of investigation. Till the filing of the final report
before the Court, the investigation is within the exclusive domain of
the prosecution. Based on the materials collected in the course of
the investigation, the prosecution can add or delete the accused
persons. The same can be questioned only at the time when the
final report is actually filed before the Court. Till then, there is no
question of entertaining an application since, there is no case
pending before the Court. A criminal case starts before the Court
only after a final report is filed before the Court.
10.Where the names of an accused person is dropped in the
final report, the same has to be informed to the defacto
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Crl.O.P.No.24613 of 2019
complainant to enable the defacto complainant to file a protest
petition or a complaint before the concerned Court. The law on this
issue is well settled by the the judgment of the Hon'ble Supreme
Court of India in the cases of Bhagwant Singh vs. Commissioer
of Police and Another reported in 1985 SCC Crl 267 and
Gangadhar Janadan Mhatre vs. State of Maharashtra and
others reported in 2005 SCC Crl 404. Useful reference can also be
made to the Judgement of this Court in the case of
C.Ve.Shanmugam vs. Deputy Superintendent of Police,
Tindivanam Sub-Division, Rosanai Police Station,
Tindivanam, Villupram District reported in 2010 2 MLJ Crl
833. It is clear from these judgements that where the names of
some of the accused persons are dropped, the Magistrate must
issue notice to the defacto complainant and give an opportunity to
the defacto complainant to file a protest petition.
11.In the present case, such a notice was issued to the
defacto complainant on 24.06.2019 and he was called upon to file
his objections. From the order passed by the Court below, it is seen
that the defacto complainant had also filed his objections on
26.06.2019. Unfortunately, while passing the orders, the Court
below passes the orders in CMP No.1635 of 2015 which was an
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application filed by the 2nd respondent at the time of the pendency
of the investigation.
12.The Court below while passing the order, unfortunately has
not taken into consideration the report that was filed by the 1st
respondent on 15.06.2019 and also the statements that were relied
upon by the 1st respondent. It was by virtue of this report, the name
of the petitioner was removed from the final report.
13.If the objections, given by the 2nd respondent is taken to
be a protest petition, it was the duty of the Court below to have
considered the objections and also the report of the 1 st respondent
along with the statements of the witnesses which was relied upon
by the 1st respondent. A reading of the order passed by the Court
below does not reflect any application of mind and there is no
reference to the report filed by the 1st respondent and the
statements of the witnesses. While considering the protest petition,
the Court is in the process of adding a person as an accused in the
case whose name has been dropped in the final report. Therefore,
due consideration must be given to all the materials that are
collected during the investigation. The Court must deal with those
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Crl.O.P.No.24613 of 2019
materials and thereafter, give its reasons as to why it was not right
on the side of the prosecution to drop the name of the accused
person. The said exercise has not been done by the Court below
and the Court below has merely relied upon the complaint and the
statements of the 2nd respondent and nothing else.
14.In the considered view of this Court, the manner in which
the Court below has dealt with the objections (protest petition) of
the 2nd respondent requires interference of this Court. Accordingly,
the order passed by the Court below dated 02.07.2019 is hereby
set aside.
15.The matter is again remanded back to the file of the
learned Judicial Magistrate No.I, Villupuram with a direction to
consider the entire materials placed before the Court and see if
there are any materials as against the petitioner in order to add him
as an accused person in the final report. Even though, the Court
below is not supposed to write a judgment for acquittal at this
stage, there must be a prima facie material available to add
someone as an accused person and Court below has to necessarily
refer to that prima facie material while passing an order and add a
person as an accused person. This exercise shall be done by the
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Court below and a decision shall be arrived at, within a period of
four weeks from the date of receipt of copy of this order. The Court
below shall consider the objections filed by the 2nd respondent as a
protest petition and deal with the same.
16.In the result, this criminal original petition is allowed with
the above directions. Consequently, connected miscellaneous
petitions are closed.
21.01.2021
Index : Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
ssr
To
1. The Judicial Magistrate-I, Villupuram.
2. The Inspector of Police,
District Crime Branch,
Vilupuram.
3.The Public Prosecutor,
High Court of Madras.
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Crl.O.P.No.24613 of 2019
N. ANAND VENKATESH.J
ssr
Crl.O.P.No.24613 of 2019
and Crl.M.P.Nos.16519 & 13087 of 2019
21.01.2021
https://www.mhc.tn.gov.in/judis/
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