Madras High Court
Vijitha vs The State Of Tamil Nadu on 28 January, 2025
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
2025:MHC:350
Crl.R.C.(MD) No.248 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.01.2025
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.R.C.(MD) No.248 of 2021
Vijitha ... Petitioner/Proposed
Accused
Vs.
1.The State of Tamil Nadu
rep. by Sub Inspector of Police,
Bazzar Police Station,
Ramanathapuram,
Ramanathapuram District. ... 1st Respondent/
Complainant
2.Ragupathi ... 2nd Respondent/Accused
Prayer: Criminal Revision Petition filed under Section 397 r/w. Section
401 of Cr.P.C. seeking to call for the records in Crl.M.P.No.305 of 2021
in C.C.No.54 of 2011, on the file of the Judicial Magistrate Court No.I,
Ramanthapuram, dated 12.02.2021 and set aside the same.
For Petitioner : Mr.Mahaboob Athiff
for Mr.D.Balamurugapandi
For R1 : Mr.A.Albert James
Government Advocate (Crl. Side)
_____________
https://www.mhc.tn.gov.in/judis
Page No. 1 of 13
Crl.R.C.(MD) No.248 of 2021
For R2 : No appearance
For Defacto complainant : Mr.R.Navaneetha Raja
*****
ORDER
This Criminal Revision Petition has been filed challenging the
order passed in Crl.M.P.No.305 of 2021 in C.C.No.54 of 2011 on the file
of the Judicial Magistrate Court No.1. Ramanathapuram, dated
12.02.2021.
2. The de facto complainant is the brother-in-law of the petitioner.
There was a property dispute between the second respondent, who is the
husband of the petitioner, and his brother. It is alleged that A1, who is the
husband of this petitioner, and this petitioner entered the property
belonging to the de facto complainant on 08.08.2010 at about 07:45 p.m.
and started attacking the de facto complainant with a spade. It is also
alleged that each of the accused persons attacked the de facto
complainant, as a result of which the de facto complainant sustained
serious injuries in his forehead and nose and all over the body. That apart,
the accused persons criminally intimidated the de facto complainant.
Based on the complaint given by the de facto complainant, an FIR came
_____________
https://www.mhc.tn.gov.in/judis
to be registered in Crime No.318 of 2010. For the very same incident,
another complaint was given by A1, and an FIR was registered in Crime
No.319 of 2010, wherein the de facto complainant and another person
were made as accused.
3. Both the FIRs. came to be investigated by the first respondent
police, and police reports were filed in both the FIRs. While filing the
police report in Crime No.318 of 2010, the Investigation Officer found
that the de facto complainant had given an exaggerated version regarding
the allegation that was made against the petitioner, and on the basis of
materials collected, the Investigation Officer came to a conclusion that the
petitioner has not committed any offence in this case. Accordingly, the
name of the petitioner was deleted, and the police report was filed only
against A1, the second respondent herein. The same was taken on file in
C.C.No.54 of 2011.
4. Insofar as the FIR that was registered in Crime No.319 of 2010,
the police report was taken on file in C.C.No.156 of 2011, in which the de
facto complainant and another person were shown as accused.
_____________
https://www.mhc.tn.gov.in/judis
5. The police reports filed in both cases were taken on file, and
charges were framed. The case was at the stage of examination of
witnesses. The de facto complainant was examined as P.W.1. The de facto
complainant, while being examined in chief, reiterated the same
allegations that were made while the statement of the de facto
complainant was recorded by the police under Section 161(3) of Cr.P.C.
Even before P.W.1 was examined, the prosecution had chosen to file
Crl.M.P.No.305 of 2021 in C.C.No.54 of 2011 under Section 319(1) of
Cr.P.C. to add the petitioner as an accused. The court below passed an
order dated 12.02.2021 by allowing the said Crl.M.P. and adding the
petitioner as A2 in the pending case. Aggrieved by this order passed by
the court below dated 12.02.2021, the present Criminal Revision Petition
has been filed before this Court.
6. The learned counsel for the petitioner primarily raised two
grounds: (a) no notice was served on the petitioner before the order was
passed in the application filed by the prosecution under Section 319(1) of
Cr.P.C. To substantiate this submission, the learned counsel relied upon
the Judgment of the Hon'ble Apex Court in Jogendra Yadav and others
Vs. State of Bihar and another, reported in (2015) 9 SCC 244; and (b)
_____________
https://www.mhc.tn.gov.in/judis
the court below had mechanically added the petitioner as an accused
merely based on the ipsi dixit of the de facto complainant, who had
repeated the same statement that was given to the police while recording
the statement under Section 161(3) of Cr.P.C. and the court below had not
properly followed the guidelines given by the Hon'ble Apex Court,
wherein it was held that power under Section 319(1) has to be sparingly
used where the circumstance so warrants.
7. The learned Government Advocate (Criminal Side) appearing for
the first respondent police submitted that the court below has properly
applied its mind to all materials that were available and came to a prima
facie conclusion that the de facto complainant had specifically made
allegations against the petitioner, and therefore, there is no ground to
interfere with the order passed by the court below in this case.
8. Mr.R.Navaneetha Raja, the learned counsel appearing for the de
facto complainant, submitted that no notice is required before adding the
petitioner as an accused. To substantiate this submission, the learned
counsel relied upon the Judgment of the Hon'ble Apex Court in Omi @
Omkar Rathore and another Vs. State of Madhya Pradesh and another,
_____________
https://www.mhc.tn.gov.in/judis
passed in S.L.P.(Criminal) No.17781 of 2024, dated 03.01.2025. The
learned counsel appearing for the de facto complainant specifically relied
upon paragraph 21 of the said Judgment, which provided for principles of
law regarding Section 319 of Cr.P.C.
9. This Court has carefully considered the submission made on
either side and the materials available on record.
10. Insofar as the first ground that was raised by the learned counsel
for the petitioner, stating that no notice was served on the petitioner
before adding the petitioner as an accused, it will be beneficial to take
note of the Judgment of the Hon'ble Apex Court in Yashodhan Singh
and others Vs. State of Uttar Pradesh and another, reported in 2023 (4)
MLJ (Criminal) 415 : (2023) 9 SCC 108. The relevant portion in the
judgment is extracted hereunder:
32. The sheet anchor of the arguments advanced
on behalf of the appellants is what has been observed by
this Court in the said judgment in para 9, which reads as
under:
“9. It was, however, urged by learned counsel for the
appellants that in order to avail of the remedies of
discharge under Section 227 CrPC, the only
qualification necessary is that the person should be
_____________
https://www.mhc.tn.gov.in/judis
accused. The learned counsel submitted that there is
no difference between an accused since inception
and accused who has been added as such under
Section 319 CrPC. It is, however, not possible to
accept this submission since there is a material
difference between the two. An accused since
inception is not necessarily heard before he is added
as an accused. However, a person who is added as
an accused under Section 319 CrPC, is necessarily
heard before being so added. Often he gets a further
hearing if he challenges the summoning order before
the High Court and further. It seems incongruous and
indeed anomalous if the two sections are construed
to mean that a person who is added as an accused by
the court after considering the evidence against him
can avail remedy of discharge on the ground that
there is no sufficient material against him. Moreover,
it is settled that the extraordinary power under
Section 319 CrPC, can be exercised only if very
strong and cogent evidence occurs against a person
from the evidence led before the Court.” (emphasis
supplied)
Much emphasis has been laid on the expression “a
person who is added as an accused under Section 319
CrPC is necessarily heard before being so added” as
extracted supra. Therefore, it was contended on behalf of
appellants that in the instant case, there being no
opportunity to the appellants herein of being heard, the
summoning order itself was vitiated and, therefore, the
impugned order of the High Court may be set aside as
also the order passed by the Sessions Court summoning
the accused.
33. It is necessary to consider the contentions of
the learned counsel for the appellants in the light of what
has been observed in paragraph 9 extracted above and in
light of what has been observed by this Court in the
subsequent paragraphs and having regard to the earlier
_____________
https://www.mhc.tn.gov.in/judis
judgments of this Court referred to above in detail.
34. In paragraph 13 of Jogendra Yadav, it has been
observed that the exercise of power under Section 319
CrPC must be placed on a higher pedestal. Needless to
say, the accused summoned under Section 319 CrPC are
entitled to invoke the remedy under law against an illegal
or improper exercise of power under Section 319 CrPC
but that cannot have the effect of the order being undone
by seeking a discharge under Section 227 CrPC.
Therefore, this Court categorically held that a person,
who is summoned under Section 319 CrPC cannot avail
the remedy of discharge under Section 227 CrPC. In that
context, this Court, as already noted, discussed the
difference between Sections 227 and 319 CrPC , as
extracted above.
11. It is quite clear from the above Judgment that there is no
requirement for issuing notice and hearing the person who is summoned
under Section 319 of Cr.P.C. and such a procedure is not contemplated,
and the order passed by the court adding a person as an accused cannot be
interfered on this ground. The Hon'ble Apex Court has made it clear that
the opportunity to the accused persons is contemplated only during the
trial. While dealing with the above case, the Hon'ble Apex Court also
dealt with the Judgment in Jogendra Yadav case, which was relied upon
by the learned counsel for the petitioner, and the position of law was
clarified.
_____________
https://www.mhc.tn.gov.in/judis
12. This Court will now come into the second ground that was
raised by the learned counsel for the petitioner to the effect that the Court
below had mechanically added the petitioner as an accused without there
being any material and without considering the report filed by the first
respondent police deleting the name of the petitioner.
13. In the case on hand, the petitioner was initially added as an
accused in the FIR. In the course of the investigation, the Investigation
Officer found that the petitioner is not involved in the alleged offence and
accordingly, the name deletion report dated 23.03.2018 was filed.
14. On carefully going through the report, it is seen that during the
investigation, it came to light that the de facto complainant had given an
exaggerated version as if the petitioner also attacked with spade.
However, the version given by the de facto complainant has not been
supported by any of the other eyewitnesses. Therefore, the police report
was filed only as against A1.
15. This Court also carefully went through the statements recorded
from the eyewitnesses under Section 161(3) of Cr.P.C. L.W.2 to L.W.5
_____________
https://www.mhc.tn.gov.in/judis
are eyewitnesses, who speak about the incident. All of them have
consistently given statements that it is only A1 who attacked the de facto
complainant with spade. They did not speak about the attack by the
petitioner. The Court below believed the evidence that was tendered by
the de facto complainant when the de facto complainant was examined in
chief. On going through the evidence of P.W.1, i.e., the de facto
complainant's evidence, it is seen that it is reiteration of whatever was
stated by the de facto complainant before the first respondent police when
the statement was recorded under Section 161(3) of Cr.P.C. and such
statement was found to be exaggerated by the Investigation Officer.
16. The Hon'ble Apex Court has repeatedly held that while adding a
person as an accused, the test to be applied is that there must be more than
a prima facie case, as exercised at the time of framing charges but short of
evidence that if left unrebutted would lead to conviction. The Hon'ble
Apex Court held that the power under Section 319(1) of Cr.P.C. must be
sparingly used when only the circumstances so warrant. This Court can
make useful reference to the Judgment of the Hon'ble Apex Court in
N.Manogar and another Vs. Inspector of Police and others, reported in
(2024) 2 MLJ (Crl) 192 (SC).
_____________
https://www.mhc.tn.gov.in/judis
17. In the considered view of this Court, the court below did not
properly apply the test and has added the petitioner as an accused merely
based on the evidence of P.W.1, who was examined in chief and had
merely reiterated whatever was stated to the police while registering the
FIR and while recording the statement under Section 161(3) of Cr.P.C.
The court below ought to have taken into consideration the fact that the
parties are closely related and there is already a property dispute. Hence,
there is always a proclivity to rope in the other family members while
giving the criminal case.
18. In the light of the above discussions, this Court finds that the
order passed by the court below in Crl.M.P.No.305 of 2021 in C.C.No.54
of 2011 dated 12.02.2021 suffers from illegality, and the same is liable to
be interfered with by this Court. Accordingly, the impugned order is set
aside.
19. In the light of the above, this Criminal Revision Petition is
allowed. There shall be a direction to the learned Judicial Magistrate No.
1. Ramanathapuram, to proceed further with the case as against A1 in
C.C.No.54 of 2011, which pertains to the Crime No.318 of 2010, and
_____________
https://www.mhc.tn.gov.in/judis
conduct the case in line with the guidelines issued by the Full Bench in
T.Balaji and another Vs. The State of Tamil Nadu, reported in 2024-2-
L.W.(Crl.) 175. The proceedings shall be completed within a period of 4
months from the date of receipt of a copy of this order.
20. In the result, this Criminal Revision Petition stands allowed.
28.01.2025
(1/2)
Index: Yes
Neutral Citation: Yes
Speaking Order
JEN
To:
1.The Judicial Magistrate No.I,
Ramanthapuram,
Ramanathapuram District.
2.The Sub-Inspector of Police,
Bazzar Police Station,
Ramanathapuram,
Ramanathapuram District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
_____________
https://www.mhc.tn.gov.in/judis
N.ANAND VENKATESH, J.
JEN
28.01.2025
(1/2)
_____________
https://www.mhc.tn.gov.in/judis
