Madras High Court
Mr.Gokul vs The Sub Inspector Of Police on 22 June, 2022
Crl.O.P.(MD)No. 19753 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22/06/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.19753 of 2018
and
Crl.MP(MD)No.9019 of 2018
1.Mr.Gokul
2.Mr.Balakrishnan : Petitioner/Rank not
known
Vs.
1.The Sub Inspector of Police,
Suchindram Police Station,
Kanyakumari,
Kanyakumari District.
(Crime No.631 of 2014) : R1/Complainant
2.Mr.Neelamohan : R2/Informant
Prayer: Criminal Original Petition is filed under
Section 482 Cr.P.C., to call for the records relating to
the Docket order passed by the learned Judicial Magistrate
No.3, Nagercoil, dated 10/09/2018 in CC No.347 of 2016 and
set aside the same.
For Petitioners : Mr.N.Dilipkumar
For Respondents : Mr.SS.Madhavan
Government Advocate
(Criminal side)
For 2nd Respondent : Mr.T.Arul
1/8
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Crl.O.P.(MD)No. 19753 of 2018
O R D E R
This criminal original petition is filed seeking in
order to set aside the Docket order passed by the learned
Judicial Magistrate No.3, Nagercoil, dated 10/09/2018, in
CC No.347 of 2016.
2.The facts in brief:-
The 2nd respondent made a complaint stating that on
22/10/2014 at about 7.30 pm, when he was available in the
house, the accused Dharmalingam, his son Gokul and his son-
in-law Balakrishnan came to his house, abused in filthy
language and caused assault with iron rod, hands and legs
etc. At the intervention of the neighbours, further assault
was prevented and he was taken to the hospital. On the
basis of the complaint given by him, a case in Crime No.631
of 2014 for the offences under sections 294(b), 323, 324
and 506(ii) IPC was registered. After completing the
formalities of investigation, final report was filed before
the concerned court stating that only A1 was involved in
the occurrence and A2 and A3 were not involved and they
were wrongly roped. On the basis of the final report,
cognizance was taken against A1 in CC No.347 of 2016 by the
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Crl.O.P.(MD)No. 19753 of 2018
Judicial Magistrate No.3, Nagercoil. The trial court, took
up the trial and during the course of evidence by PW1
namely the complainant, in his chief examination, he has
stated that he was assaulted by all the accused persons
namely Balakrishnan, Gokul and Dharmalingam. Nothing that
two other persons also alleged to have involved in the
assault, the trial court in a cryptic order, directed to
include them and issue a summon to the petitioners under
section 319 Cr.P.C.
3.Challenging the same and to set aside the above said
summon, this petition has been filed by the petitioners on
the ground that during the court of the investigation, it
was found that these two persons were not involved in the
occurrence. But in order to wreck vengeance, such an
information has been furnished to the court by the second
respondent. Except the oral testimony, no other materials
or evidence available before the court to issue a summon.
4.Heard both sides.
5.The learned counsel appearing for the petitioners
would straightaway rely upon the judgment of the Hon'ble
Supreme Court in the case of Hardeep Singh Vs. State of
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Crl.O.P.(MD)No. 19753 of 2018
Punjab and others [(2014)3 SCC 92} and Dharam Pal and
others Vs. State of Haryana and another [(2014)3 SCC 306}.
6.Per contra, the learned counsel appearing for the
second respondent would rely upon the judgment of the
Hon'ble Supreme Court in the case of Sartaj Singh Vs. State
of Haryana and another [(2021)2 MLJ (Crl) 168(SC)] and
would submit that right from the complaint, the involvement
of the petitioners has been spoken by the second
respondent, which was not properly investigated by the
Investigating Officer. He has spoken about the real facts,
at the time of evidence. Noting that no wrong, either on
his part or on the part of the trial court in summoning the
petitioner, they have to face the trial. It is further
contended that before filing the report by deleting the
name of the petitioners, no notice was also issued to them
by the trial court and no intimation was also served by
them upon the second respondent. According to him, it is
per see illegal.
7.With regard to this specific argument, no
particulars are available before the court. The certified
xerox copy of the final report shows that the name of the
petitioners have been deleted and only Dharmalingam was
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Crl.O.P.(MD)No. 19753 of 2018
arrayed as an accused and also taken cognizance by the
trial court, on 20/01/2014. So, it appears that no notice
was sent to the second respondent to make his objection
with regard to the deletion of the petitioners' name.
8.Per contra, the learned counsel appearing for the
petitioners would rely upon the statement recorded during
the course of investigation by the Investigating Officer
under section 161(3) Cr.P.C, wherein it has been stated by
the complainant that the assault was made by Dharmalingam,
but that was prevented by the son-in-law Balakrishnan and
his son Gokul. Quite contrary to this, statement has given
before the trial court during the course of chief
examination. To the same effect, it is a statement of the
wife of the complainant and also the other witnesses. So,
according to him, it is nothing, but an improvement made by
the 2nd respondent during the course of chief examination.
9.As rightly pointed out by the second respondent, it
is a consistent case right from the date of filing of the
complaint that these two persons have also involved in the
assault. When there is a specific allegation by him in the
FIR, though it was found to be a false, during the course
of investigation, it is for the trial court to find out the
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Crl.O.P.(MD)No. 19753 of 2018
truth. For that purpose, the presence of the petitioners
are also required. They can very well participate in the
trial process and may make their defence, at the time of
framing of the additional charge.
10.As per the judgment of the Hon'ble Supreme Court in
the case of Hardeep Singh Vs. State of Punjab and others
[(2014)3 SCC 92], the decree of satisfaction requires for
summoning a person under section 319 Cr.P.C is correlated
to the satisfaction for framing a charge. So, the
petitioners can very well advance their argument at the
time of framing of additional charge.
11.With the above said observation, this criminal
original petition deserves dismissal and accordingly, it is
dismissed. Consequently, connected Miscellaneous Petition
is closed.
22.06.2022
Internet:Yes/No
Index:Yes/No
er
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No. 19753 of 2018
Note: In view of the
present lock down owing
to COVID-19 pandemic, a
web copy of the order may
be utilized for official
purposes, but, ensuring
that the copy of the
order that is presented
is the correct copy,
shall be the
responsibility of the
advocate/litigant
concerned.
To,
1.The Judicial Magistrate No.3,
Nagercoil.
2.The Sub Inspector of Police,
Suchindram Police Station,
Kanyakumari,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No. 19753 of 2018
G.ILANGOVAN,J.,
er
Crl.O.P.(MD)No.19753 of 2018
22/06/2022
https://www.mhc.tn.gov.in/judis
