Madras High Court
Barathi vs The Deputy Superintendent Of Police on 11 March, 2025
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.A(MD)No.670 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :11.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A(MD)No.670 of 2024 and
Crl.MP(MD) No.8271 of 2024
Barathi ... Appellant
Vs
1.The Deputy Superintendent of Police,
Andipatty Sub Division,
Mayiladumparai Police Station,
Theni District.
Crime No.151/2021.
2.Nataraj ... Respondents
PRAYER: Appeal filed under Section 14A of the SC/ST(POA) Act,
to call for the records pertaining to the order passed in Crl.MP.No.
1034 of 2022 in Spl.S.C.No.33 of 2021, dated 28.06.2024 by the
Special Court for trial of cases under SC/ST (POA) Act, Theni and set
aside the same.
For Appellant : Mr.A.Jayaramachandran
For R1 : Mr.P.Kottaichamy
Government Advocate (Crl.side)
For R2 : Mr.R.L.Dhillipan Pandian
1/10
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Crl.A(MD)No.670 of 2024
JUDGMENT
This Criminal Appeal is directed as against the order passed
by the Special Court for trial of cases under SC/ST Act, Theni in
Crl.MP No.1034 of 2022, dated 28.06.2024. This appellant is the
second accused in Crime No.151 of 2021 on the file of the first
respondent police. The second respondent/defacto complainant has
lodged a complaint as against this appellant and her husband on
17.08.2021 with an allegation that on 16.08.2021 at about 3.30 pm,
this appellant along with her husband abused the defacto complainant,
by calling his caste name and assaulted him with a wooden log and
knife, based on which, a case in Crime No.151 of 2021 has been
registered as against this appellant and her husband for the offence
under Sections 324, 294b and under Sections 3(1)(r), 3(1)(s), 3(2)(Va)
of SC/ST (Prevention of Atrocities) Act, 1989 and under Section 4 of
Tamil Nadu Prohibition of Women Harassment of Act. The first
respondent, who conducted the investigation found that there is no
material as against this appellant and filed the final report before the
Special Court for trial of cases under SC/ST(POA) Act, Theni, as
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against A1 Thavam alone and the same was taken on file by the trial
Court in Spl.S.C.No.33 of 2021 on 22.12.2021. The trial Court has
framed charges on 07.04.2022 and posted the case for trial on
09.05.2022. In this circumstances, the trial Court took cognizance of
the deletion report filed by the first respondent police on 07.10.2022
assigned Number in Cr.MP No:1034 of 2022, wherein notice was
ordered to the defacto complainant. After hearing the defacto
complainant, the trial Court suo motu included this appellant as an
accused in the case, by its order dated 28.06.2024. This order passed
by the trial Court in deletion petition is challenged in this Criminal
Appeal.
2.The learned counsel appearing for the appellant has made
his submissions as under:-
i. The trial Court has not even mentioned the provision of law,
under which, the impugned order has been passed.
ii. If at all the trial Court has invoked its power bestowed under
Section 319 of Cr.P.C, it is well settled by the Apex Court in
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the case of Kishun Singh and others Vs.State of Bihar,
reported in (1993) 2 SCC 319, that it must appear from the
evidence tendered in the course of any enquiry or trial that
any person not being the accused has committed any offence,
for which, he could be tried together with the accused. This
power can be exercised only if it so appears from the
evidence at the trial and not otherwise.
iii. The Honourable Apex Court has held that when the police
submitted a final report, the Magistrate cannot direct the
police to submit the charge sheet, by including some other
accused. However, on the basis of the materials in the charge
sheet, the trial Court can direct for further investigation. Here,
in this case, after taking cognizance of the case and also after
framing of charges, passing an order to include a person in
the list of accused is barred by law.
iv. The trial has not been commenced in this case and therefore,
the trial Court lacks jurisdiction in passing the impugned
order.
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v. As per Section 193 of Cr.P.C., the Court of Sessions can
invoke its original jurisdiction to take cognizance of the
committal cases. The trial Court is a Special Court, which
takes cognizance, without committal proceedings and
therefore, the trial Court is devoid of jurisdiction, under
Section 193 of Cr.P.C in passing the impugned order.
vi. The trial Court has committed an error by passing the
impugned order, based on the protest petition, when the
protest petition does not reveal any specific allegation
attributed as against this appellant.
vii.The order impugned has been passed by the trial Court, even
without issuing a notice to the appellant, which is in violation
of principles of natural justice.
3.The learned Government Advocate appearing for the first
respondent submits that the investigation was conducted in a proper
manner and the first respondent has found that the appellant has not
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involved in any offence and therefore, he has filed the final report as
against A1 alone and the same was also taken on file by the trial Court.
According to the learned Government Advocate, having taken the case
on file, it is not proper on the part of the trial Court in ordering for
adding the appellant as an accused.
4.The learned counsel for the second respondent submits that
the appellant along with her husband assaulted the second respondent/
defacto complainant on 16.08.2021. The appellant's name was
mentioned in the complaint lodged by him on 17.08.2021. However,
the first respondent, without conducting an investigation in a proper
manner, has filed the final report as against A1 alone, omitting this
appellant. The first respondent has also failed to issue a notice on the
report filed deleting the second accused. The trial Court has rightly
found the same, ordered notice to the second respondent, heard him
and satisfied with the reasons, has added the appellant as A2 and
therefore, there is no reasons to interfere with the order of the trial
Court, dated 28.06.2024.
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5.This Court considered the rival submissions made and also
perused the materials placed on record.
6.The issue before this Court is the manner, in which, the
trial Court has added this appellant as an accused in Crime No.151 of
2021. The respondent police has registered the case as against this
appellant and her husband in Crime No.151 of 2021 on 17.08.2021.
They have also filed the final report on 22.12.2021 and the same was
taken on file by the trial Court in Spl.S.C.No.33 of 2021. The trial
Court has also framed charges as against the accused No:1. The second
respondent has filed applications before the trial Court in Crl.MP No.
999 of 2022, to permit him to assist the prosecution and Crl.MP No.
956 of 2022, to cancel the bail granted to A1. The application filed by
the second respondent in Crl.MP 956 of 2022 was dismissed by the
trial Court on 17.10.2022 and the application filed to assist the
prosecution in Crl.MP.No.999 of 2022 was allowed on 28.09.2022.
During the course of arguments in Crl.MP 956 of 2022, the trial Court
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has found that the defacto complainant was not issued with any notice
for deletion of one of the accused. Therefore, the trial Court has
numbered the deletion report, which was taken on file in the year 2022
in Crl.MP No.1034 of 2022 on 07.10.2022, ordered notice to the
defacto complainant/the second respondent and added this appellant as
an accused in Spl.S.C.No.33 of 2021. The procedure adopted by the
trial Court in adding this appellant is not proper. If any final report is
filed by deleting any offence or by deleting the accused, it is the duty
of the trial Court to issue a notice to the defacto complainant, hear him
and in the event, if any protest petition has been filed, if satisfied with
the reasons assigned in the protest petition, can order for further
investigation. The trial Court is not supposed to add the deleted
accused as an accused, treating the trial Court as an investigating
agency, when the trial has not been commenced.
7.In view of the above, this Court is of the view that the
impugned order is liable to be set aside. Accordingly, the order passed
by the trial Court in Crl.MP.No.1034 of 2022 in Spl.S.C.No.33 of
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2021, dated 28.06.2024 is hereby set aside. This Criminal Appeal is
allowed. It is open to the second respondent to file a protest petition as
against the deletion report and the same shall be considered by the trial
Court and if it is satisfied with the reasons, further investigation may
be ordered, by assigning the reasons for further investigation. If any
protest petition is filed, the trial court shall pass an order afresh as to
whether it requires for further investigation as to the role played by
this appellant. Consequently, connected Miscellaneous Petition is
closed.
11.03.2025
NCC : Yes / No.
Index : Yes / No.
Internet : Yes / No.
vrn
To
1.The Special Court for trial of cases under SC/ST (POA) Act, Theni.
2.The Deputy Superintendent of Police,
Andipatty Sub Division,
Mayiladumparai Police Station,
Theni District.
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B.PUGALENDHI, J.,
vrn
Judgment made in
11.03.2025
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