Allowed

H.Arunmozhi Devan v. State Rep. by

Madras HC25 Aug 2021CRL RC/848/2015

Case brief

AI extract

What is this about?

In a criminal revision, the revision bench quashed the order summoning the petitioner as an additional accused under Section 319 Cr.P.C. It found the trial court acted in a cavalier manner, violating procedure by not issuing summons before arraying the petitioner, and based the summoning on contradictory and uncorroborated witness testimonies.

What did the court decide?

The order summoning the petitioner as the third accused was set aside; the trial court is directed to conduct the trial afresh starting with the original accused.

H.Arunmozhi Devan Vs State Rep. by — Criminal Trial and Appeal | Madras HC (2021)

¶1

 IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

ORDERS RESERVED ONORDERS PRONOUNCED ON
21.06.202125.08.2021

¶3

CORAM

¶4

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

¶5

CRL.R.C.NO.848 OF 2015
AND
M.P.NO.1 OF 2015

¶6

H.Arunmozhi Devan.. Petitioner/A.3

¶7

 .. Vs ..

¶8

State : Represented by
The Inspector of Police,
Bargur Police Station,
Crime No.379 of 2009
Krishnagiri District.

¶9

.. Respondent/Complainant

¶10

PRAYER : Petition filed under Sections 397 and 401 of the
Criminal Procedure Code, against the order passed under Section
319 of Cr.P.C. taking congnizance against the petitioner in a
case of offence under Section 302 of the Indian Penal Code in
Crl.M.P.No.86 of 2015 in S.C.No.61 of 2010 by the learned
Additional District Judge, Krishnagiri.

¶11

For Petitioner: Mr.R.John Sathyan
For Respondent: Mr.R.Vinoth Raja,
 Government Advocate

¶12

https://hcservices.ecourts.gov.in/hcservices/

¶13

ORDER

¶14

The matter is heard through "Video Conference".

¶15

The newly added third accused is the revision petitioner
herein. This Criminal Revision Case has been preferred by the
petitioner against the order passed under Section 319 of the
Code of Criminal Procedure taking congnizance against the
petitioner in a case of offence under Section 302 of the Indian
Penal Code in Crl.M.P.No.86 of 2015 in S.C.No.61 of 2010 by the
learned Additional District Judge, Krishnagiri.

¶16

2. The respondent/Inspector of Police, Bargur police
station, Krishnagiri District, has registered a case against the
first accused namely Ansar and the second accused namely Balan
in Crime No.370 of 2009 for the offence under Section 302 IPC.
After investigation, the Investigating Officer, has filed a
final report against those two accused.

¶17

3. The case of the prosecution, in brief, is as follows:-

¶18

[i] On 24.07.2009 at about 9.30 p.m., the first
accused Ansar and the second accused Balan and the deceased
Periyadurai went to a Liquor shop near S.K.Dhaba on the By-pass
road in Bargur in the Autorickshaw of one Annamalai (L.W.14).
After consuming liquor, as they were returning home in the same
auto, the first accused took a sum of Rs.2,000/- from the pocket
of the deceased and as a result of which, there was a quarrel
amongst them.

¶19

[ii] After sometime, the said Periyadurai was
found dead on the rocks on the foothills of Balamurugan temple
on the Eastern side of Jagadevi. The complaint was lodged by
P.W.1-Deverajan, Village Administrative Officer of Bargur.

¶20

[iii] After following the formalities, the case
was numbered as S.C.No.61 of 2010 by the learned Additional
District Judge, Krishnagiri and made over to the learned First
Additional District Judge, Krishnagiri and the matter was posted
for examination of the prosecution witnesses.

¶21

https://hcservices.ecourts.gov.in/hcservices/

¶22

[iv] On 22.07.2015, P.Ws.1 to 5 were examined and
the petitioner was examined as P.W.2. After completion, a
petition in Crl.M.P.No.86 of 2015 was filed by the learned
Public Prosecutor under Section 319 of the Code of Criminal
Procedure seeking to add P.W.2 as accused and on 23.07.2015, the
trial Court summoned the petitioner, who was detained on passing
the impugned order arraigning the petitioner as an accused
scrapping his evidence.

¶23

[v] The petition filed by the learned Public
Prosecutor was allowed and P.W.2 was re-arrayed as third
accused, based upon the chief examination of P.Ws.4 and 5. On
perusing the order, I find that neither any summons have been
issued nor any explanation or counter has been obtained from him
before arraying the revision petitioner/P.W.2 as A.3. It
appears from the records that he was remanded on the same day.

¶24

4. Learned counsel for the revision petitioner/A.3 would
submit that the revision petitioner/Arulmozhi Devan was
originally examined as P.W.2 in the Sessions Case No. 61 of 2010
and he was arrayed as accused No.3 and thereafter, P.W.3 and
P.W.4 were examined. Based upon the mere assertion of
P.W.4/Nirmala Preethi, who claims that she is the step daughter
of the deceased, on the next day, learned Sessions Judge appears
to have called P.W.2/Arulmozhi Devan and remanded him, without
even issuing summons or notice to him.

¶25

5. Learned counsel for the revision petitioner would
further contend that the provision of Section 319 of Cr.P.C was
not properly followed by the learned Sessions Judge. The
learned counsel also draw my attention to the evidence of P.W.4
& P.W.5, who are listed witnesses Nos.13 & 18. Further, the
learned counsel would also draw my attention to the statement
under Section 161 of Cr.P.C given by P.W.4 and P.W.5 as L.W.13 &
L.W.18 before the Investigating Officer to say that the said
allegation is nothing but an improvement.

¶26

6. Learned Government Advocate (Crl.Side) appearing for
the respondent would submit that it is a case of murder for gain
and placed his reliance upon the circumstantial evidence.

¶27

https://hcservices.ecourts.gov.in/hcservices/

¶28

P.Ws.2 to 5 were examined on the same day. Based upon the
evidence of P.W.4, P.W.2 was arrayed as accused No.3 and
remanded and thereafter, released on personal bond.

¶29

7. As to the powers of the Sessions Court to implead or
to add an accused under Section 319 of the Criminal Procedure
Code, the law is well settled by the Constitution Bench of the
Supreme Court in the case of Hardeep Singh Vs. State of Punjab,
reported in 2014 (1) Scale 241. Further, in the case of Babubhai
Bhimabhai Bokhiria & Another Vs. State of Gujarat & Ors.
reported in 2014 (2) SCC (Crl.) 644, the Hon'ble Supreme Court
has held that Section 319 of the Criminal Procedure Code confers
power on the trial Court to find out whether a person, who ought
to have been added as an accused, has erroneously been omitted
or has deliberately been excluded by the investigating agency
and that satisfaction has to be arrived at on the basis of the
evidence so led during the trial. On the degree of satisfaction
for invoking the power under Section 319 of Cr.P.C., the Court
observed that though the test of prima facie case being made out
is same as that when the cognizance of the offence is taken and
process issued, the degree of satisfaction under Section 319 of
the Criminal Procedure Code is much higher.

¶30

8. In the decision reported in 2009 Sureme Court 2792 (1)
[Sarabjit Singh and another Vs. State of Punjab and another],
the Hon'ble Supreme Court has held as follows:-

¶31

"Before an additional accused can be summoned
for standing trial, the nature of the evidence should
be such which would make out grounds for exercise of
extraordinary power. The materials brought before the
Court must also be such which would satisfy the Court
that it is one of those cases where its jurisdiction
should be exercised sparingly.

¶32

An order under Section 319, therefore, should
not be passed only because the first information or
one of the witnesses seeks to implicate other
persons(s). Sufficient and cogent reasons are
required to be assigned by the Court so as to satisfy
the ingredients of the provisions. Mere ipse dixit
would not serve the purpose. Such an evidence must be
convincing one at least for the purpose of exercise of

¶33

https://hcservices.ecourts.gov.in/hcservices/

¶34

the

¶35

theextraordinaryjurisdiction.Forthe
aforementioned purpose, the Courts are required to
apply stringent tests; one of the tests being whether
evidence on records is such which would reasonably
lead to conviction of the person sought to be
summoned.

¶36

A higher standard is to be set up for the
purpose of invoking the jurisdiction under Section
319. Unless a higher standard for the purpose of
forming an opinion to summon a person as an additional
accused is laid down, the ingredients thereof, viz.,
(i) an extraordinary case and (ii) a case for
sparingly exercise of jurisdiction, would not be
satisfied."

¶37

9 (a). The trial of the above Sessions Case was commenced
on 27.02.2015. The records reveal that L.W.2 was examined as
P.W.2 and P.Ws.4 and 5, who are L.W.13/Nirmala Preethi and
L.W.18/Anthoni Ammal. P.W.2, who is now re-arrayed as third
accused is the younger brother of the deceased. This Court
perused the 161 statement of Nirmala Preethi and Anthoni Ammal
[L.W.18]. After perusing the 161 statement of those two
persons, who were examined as P.W.4 and P.W.5 and after
verifying the deposition given by them in the witness box as
P.W.4 and P.W.5, I find that the learned Sessions Judge has
committed an error in allowing the petition filed by the learned
Public Prosecutor and remanding P.W.2 on the same day by re-
arraying as third accused and it is a gross violation of the
procedure contemplated by the Criminal Procedure Code.

¶38

9 (b). On perusal of the respective 161 statement
recorded by the Investigating Agency as L.W.13 and L.W.18, who
were examined as P.W.4 and P.W.5, I find that it is nothing but
an emblishment amounting to material contradiction. As per 161
statement, P.W.4 claims that the deceased is related to her
"like father" and P.W.5 claims that she was "married to some
other person" and the deceased used "to visit their house",
while in the deposition, they claimed that P.W.4 is the step
daughter of the deceased and P.W.5 is the legally wedded wife of
the deceased and also claims that P.W.2 has given a paper
publication that the deceased is not having any wife or children
or any other legal heirs assumes significance.

¶39

https://hcservices.ecourts.gov.in/hcservices/

¶40

10. As per the allegation made by P.W.4 (Alleged Step
Daughter of the deceased), it is clear that there was enmity
between P.W.2-Arunmozhi Devan (Petitioner herein) and the
deceased. Further, she had alleged that it was Arunmozhi Devan,
who had engaged a men to assault the deceased and there is
involvement of Arunmozhi Devan in this case. It is pertinent to
see that this allegation is not even corroborated by P.W.5, who
is none other than the mother of P.W.4, whereas P.W.5 has stated
that no share in the property was given and apart from that,
there is not even a whisper about the alleged motive as spoken
to by P.W.4.

¶41

11. As per the admission made by P.W.5, she was married
to one Francis Xavier @ Thomas and both P.W.4 and another one
was born to them and P.W.5 deserted the said Francis Xavier @
Thomas and allegedly married the deceased Periyadurai in a
temple and "lived like" husband and wife and had a girl child,
who died. The evidence of P.W.4 is that P.W.2 gave a paper
publication that the deceased is not having any wife or children
or any other legal heirs. This would go to show that P.W.4 had
a reason to falsely implicate the revision petitioner herein.

¶42

12. The case in hand is a classical example of the abuse
of Section 319 of the Code of Criminal Procedure in a casual and
cavalier manner and thus, I find that the trial Court has erred
in invoking Section 319 of the Code of Criminal Procedure on a
flimsy uncorroborated and ill motivated testimonies of P.W.4
(Nirmala Preethi) and P.W.5 (Anthoniammal) and hence, in this
view of the matter, I find that the learned Sessions Judge has
committed an error in allowing the petition and asking witness
P.W.2 to stand as an accused for the trial as A.3 is culpably
wrong, without any material and hence, the order passed by the
trial Court is liable to be set aside.

¶43

13. In the result, this Criminal Revision Case is allowed
and the order passed by the learned Additional District Judge,
Krishnagiri, in Crl.M.P.No.86 of 2015 in S.C.No.61 of 2010 is
hereby set aside.

¶44

14. The learned Additional District Judge, Krishnagiri,
is hereby required to proceed with the case with the original
accused A.1 and A.2 in the manner known to law, however afresh,

¶45

https://hcservices.ecourts.gov.in/hcservices/

¶46

since the evidence recorded by P.Ws.1 to 5 is already been
scraped by the earlier order. Accordingly, the learned
Additional District Judge, Krishnagiri, is directed to conduct a
trial afresh and dispose the case at the earliest point of time.
The connected miscellaneous petition is closed.

¶47

Sd/-

¶48

Assistant Registrar(CS-VI)

¶49

// True Copy //

¶50

Sub Assistant Registrar

¶51

Jrl

¶52

To

¶53

1. The Additional District Judge, Krishnagiri.

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2. The Inspector of Police, Bargur Police Station, Krishnagiri District.

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3. The Public Prosecutor, High Court, Madras.

¶56

Copy To

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The Section Officer,
Criminal Section,
High Court, Madras.

¶58

Crl.R.C.No.848 of 2015

¶59

JPL(CO)

¶60

RLP(20/09/2021)

¶61

https://hcservices.ecourts.gov.in/hcservices/

H.Arunmozhi Devan v. State Rep. by

Case brief

What is this about?

What did the court decide?

H.Arunmozhi Devan v. State Rep. by

Case brief

What is this about?

What did the court decide?

What the court decided

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