Madras High Court
V.Babyrani vs The District Magistrate/ on 3 April, 2023
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 03/04/2023
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
Crl.OP(MD)No.3772 of 2023
V.Babyrani : Petitioner
Vs.
1.The District Magistrate/
District Collector,
Trichy District,
Trichy.
2.The Inspector of Police,
Fort Police Station,
Trichy City.
3.Suganthi
4.Kanagaraj
5.Murugaiyan
6.Vengur Saravanan
7.Senthilkumar
8.Muruganantham
9.Mohanraj
10.Sundara Moorthi
11.Anbalagan
12.Kaliyamoorthy
13.Kannan
14.Satheesh
15.Thangadurai
16.Saravanan
17.Periyasamy
18.Vairamuthu
19.Ravichandran
20.Muruganantham
21.Ilayarasan
22.Paulraj
23.Senthil
24.Tamilselvan
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2
PRAYER:- This Criminal Original Petition has been
filed under section 482 of the Criminal Procedure Code,
to issue a direction to the 1st respondent to appoint
Mr.S.Shagar, Advocate as desired by the petitioner for
conducting the prosecution in Special SC No.53 of 2018 on
the file of the 1st Additional District and Sessions Judge
(PCR), Trichy, as per Rule 4(4) of the Schedule Caste and
Schedule Tribe (Prevention of Atrocities) Rules, 1995 and
pass such further or other orders.
For Petitioner : Mr.T.Lenin Kumar
For R1 and R2 : Mr.B.Nambiselvan
Additional Public Prosecutor
For R3 to R24 : Mr.J.William Christopher
O R D E R
This criminal original petition has been filed
seeking for direction to the 1st respondent to appoint
Mr.S.Shagar, Advocate, as desired by the petitioner for
conducting the prosecution in Special SC No.53 of 2018 on
the file of the 1st Additional District and Sessions Judge
(PCR), Trichy, as per Rule 4(4)of the Schedule Caste and
Schedule Tribe (Prevention of Atrocities) Rules, 1995.
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2.The facts in brief:-
The petitioner is the wife of one Vincent. He was
allegedly murdered by the private respondents herein as a
case of retaliation on 01/06/2017 at about 05.15 pm. On
that date in the very same occurrence, one Senthil Kumar
was also murdered.
3.Over the above said double murder, a case in
Crime No.721 of 2017 was registered and after completing
the investigation, final report was filed before the
Sessions Court. During the trial process, seven witnesses
examined. Except the further witness, during the trial
process, some of the witnesses turned hostile.
4.The brother of the deceased made an application
before the trial court under section 302 Cr.P.C seeking
some reliefs. That was dismissed by the trial court.
Later, this petitioner as the wife of the deceased
Vincent, filed two petitions for appointment of an
Advocate to conduct the prosecution and sent an
application to the District Collector, on 01/02/2023 to
appoint one S.Shagar as Advocate to conduct the
prosecution. That application is pending.
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5.Seeking direction to consider the above said
application, this criminal original petition has been
filed.
6.Heard both sides.
7.A short point, which arises for consideration,
whether this petitioner will come under the protective
umbrella, as per the provisions of the SC/ST (PoA) Act,
as amended by 2015.
8.An objection has been raised by the accused as
well as the prosecution to the effect that since, the
deceased Vincent, who is the husband of this petitioner,
was a converted Christian, this petitioner cannot be
called as 'victim' under the provisions of the above said
Act.
9.The locus standi of the accused to challenge the
petition is also under dispute. Because the accused can
not have any say for the appointment of either Special
Public Prosecutor as requested by the petitioner. It is a
matter between the petitioner and the Government
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represented by the District Collector. The accused cannot
choose the Prosecutor. But however, since the question of
very maintainability of the petition was raised, the
accused was also heard.
10.The judgment cited by the petitioner is not
relevant for consideration now, since in the above said
judgments, social status of the petitioner was not under
issue. So the question, which arises for consideration is
whether despite of conversion into Christianity, the
provisions of the special status can be given under the
provision of the Special Act can be exercised.
11.Section 2(1)(e)(c) of the SC/ST Acts, defined
the victim as under:-
'Victim' means any individual who
falls within the definition of the
'Scheduled Castes and Scheduled Tribes'
under clause (c) of sub-section (1) of
section 2, and who has suffered or
experienced physical, mental,
psychological, emotional or monetary harm
or harm to this property as a result of
the commission of any offence under this
act and includes his relatives, legal
guardian and legal heirs.
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12.For disposing this petition, we need not go
into larger issue, whether conversion of a person's
religion will automatically disentitle him from
protective umbrella. Because it requires thorough study.
With regard to the reservation issue, the matter is
pending before the Hon'ble Supreme Court and a committee
has also been formed by the Central Government to study
the reservation issue for the converted people. So we
need not go into that aspect.
13.Whether on the facts, now available, whether it
can be construed the deceased as converted to
Christianity. No material is available to show the
conversion, except the statement of the Investigating
Officer in the final report that the Vincent namely the
deceased was a converted SC Christian. So the question,
which arises for consideration, this is sufficient enough
to dismiss the petition on the ground that the protection
is not available. But without any basic material, mere
statement in the final report may not be sufficient. It
is a matter for consideration by the trial court by
taking into the relevant facts, whether the victim or
Vincent belongs to SC and whether he was converted to
Christianity.
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14.Coming to the factual aspects, now the
grievance of the petitioner is that since it is a case of
double murder, the eye witnesses turned hostile. No
information was furnished, either to the petitioner nor
to the legal heirs of the deceased Senthil Kumar about
the trial process.
15.The learned Additional Public Prosecutor
appearing for the prosecution has not elicited anything
from the statement of the eye witnesses for not
supporting the case of the prosecution.
16.Reading of the cross examination portion of the
Investigating Officer also indicate that no point was
raised by the prosecution for them to turn hostile. When
serious case of murder is tried, if the prosecution
witnesses turned hostile, it is the duty of the
prosecution to elicit the reason for the witnesses to
turn hostile. Unless the specific reason is put to that,
the evidentary value cannot be decided at the time of
judgment. This basic thing escaped the notice of the
Public Prosecutor at the time of trial. So probably due
to non communication of the trial to the petitioner and
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the legal heirs of the above said Senthil Kumar, those
things have not brought on record by way of cross
examination. The Investigating officer might also have
enquired about the reason for the eye witnesses to turn
hostile. Now whatever it may be, it is the duty of the
Public Prosecutor to elicit the reason. He also failed in
his duty.
17.A report has been called for from the trial
court. The trial court simply stated that none can
control the witness. So I am of the considered view that
the facts and circumstances of the case warrants
interference by this court.
18.Let the representation that was made by the
petitioner be considered by the first respondent, who is
the competent authority to appoint a Special Public
Prosecutor as requested by the petitioner within a period
of 15 days from the date of receipt of a copy of this
order. Since the trial process is under way, the first
respondent may dispose the representation within time
stipulated by this court. Till then, the trial process be
kept in abeyance.
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19.With the above said directions, this criminal
original petition is allowed to that extent indicated
above.
03/04/2023
Index:Yes/No
Internet:Yes/No
er
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To,
1.The I Additional District and
Sessions Judge (PCR),
Trichy.
2.The District Magistrate/
District Collector,
Trichy District,
Trichy.
3.The Inspector of Police,
Fort Police Station,
Trichy City.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
Crl.OP(MD)No.3772 of 2023
03/04/2023
https://www.mhc.tn.gov.in/judis
