Basheer vs The State of Tamil Nadu

N. Arumugham, J.—The single accused before the learned Sessions Judge, Madras, in Sessions Case No. 89 of 1993 for the charge for the

offence u/s 302, I.P.C. against him lost his prayer of discharging him from the offence for, the reason of no material or evidence relied on by the

prosecution filed u/s 227 Cr.P.C. in Crl. M.P.No.4114 of 1993 dated 8.10.1993 by the learned Sessions Judge, is the revision petitioner herein

challenging the propriety, legality and validity of the impugned order in this Revision.

For an occurrence happened at 7.45 p.m. on 15.12.1991 at Kutcheri Road, about 250 metres from the Police Station, one Kannuthal was

stabbed to death and this was reported to the respondent-Police immediately by one witness by name Krishnamurthy, who also took the deceased

to the hospital. As the injured was brought dead, it was sent to the mortuary and consequently Krishnamurthy gave a written complaint at about

9.00 p.m. on that day. The complaint has been registered by the Sub Inspector of Police at about 10.15 p.m. on the same day. It appears that

except the complainant as witness No. 1, no witnesses were examined on that day. However, it appears that the complainant was examined by the

Investigating Officer subsequently on two more occasions and his statement was recorded followed by the examination or the other witnesses.

However, the revision petitioner/accused was arrested on 6.1.1992 and kept in custody till he was produced in court and nothing appears to have

been recovered from him or from his custody. After completing the investigation, the respondent had filed a final report before the Court and the

copies of the documents of the prosecution under Sec. 207 Cr.P.C. were furnished to the accused. The case was posted for framing of the charge

before the learned Sessions Judge. At this stage, a petition u/s 227 of the Code of Criminal Procedure viz., Crl.M.P.No.4114 of 1993 was filed

on behalf of the revision petitioner/ accused praying for his discharge from the offence for the reasons that there is no material or evidence or

anything available to get him involved in the instant case on hand and also the case against him was a concocted one, that since one of the

witnesses by name Panneerselvam was inimical towards him, he was opted by the prosecution subsequent to his arrest for the obvious reasons and

that there were no documents or materials attributing any overt-act on the part of the petitioner/accused.

After hearing both the sides, namely, the prosecution and the accused/petitioner, the learned Sessions Judge refused to accept the plea of the

petitioner/accused and consequently dismissed the petition on 8.10.1993. Aggrieved at this order, the present revision has been filed and

canvassed challenging the propriety and legality of the impugned order.

Mr.Habibullah Basha, the learned senior counsel appearing for and on behalf of the revision petitioner drew my attention to the verbatim

contents of the complaint admittedly given by the witness by name Krishnamurthy which is being taken as F.I.R. and registered as Crime No. 2903

of 1991 of the respondent-Police Station and consequently, the investigation commenced and completed, this witness appears to have been

examined by the Investigating Officer on 15.12.1991, 16.12.1991 and 7.1.1992 and his statements were recorded u/s 161 of the Code of

Criminal Procedure. The accused was admittedly arrested on 6.1.1992. Subsequently, the other witnesses by name Loganathan and

Panneerselvam were also examined. However, the former one was on 16.12.1991 and the latter was on 7.1.1992. The Learned Senior Counsel

also drew my attention to all the materials and the copies of the case records furnished to the accused as having been relied on by the prosecution

and consequently contended that nowhere the accused/revision petitioner was referred to his identity or by person in whatever manner and that

what all that has been referred to, is one that a person aged about 20 or 25 and height about 5 or 5 1/2 feet with some kind of hair has stabbed.

Beyond the said identity no person by name or a known person or an unknown person has been referred to in any form by any of the witnesses or

the complainant. Admittedly, no copies of the identification parade have been furnished to the accused. It is not known at this stage for the

abovesaid reason, whether any identification parade with regard to the identity of the accused has been conducted or not. Though it was claimed

that an identification parade was conducted, the memo of evidence does not contain even the name of the Judicial Officer who conducted the

identification parade and the date, time and the proceedings are all totally absent in the present case. One is sure to be aware of the result of the

identification parade, if had really been conducted, and in which who were all the witnesses who identified the assailant. Thus, it is seen that the

identity of the assailant,. who caused the injury to the deceased Kannathal, who died due to the injuries sustained, has not at all been spoken to by

any of the witnesses when examined by the Investigating Officer nor his person or identity in any manner has been referred to at all necessitating the

conduction of the identification parade as provided by law and admittedly though claimed, it is not known for the obvious reasons, no copies of the

said proceeding have been given to the accused in this case, nor even referred to

I have perused the impugned order passed by the learned Sessions Judge. After having perused the case records, the learned Sessions Judge

has observed at one stage that following the case law held in Rameshwar Singh Vs. State of Jammu and Kashmir, the identification parade should

be held immediately after the arrest of the accused and that since the physical identification particulars have been stated in the First Information

Report, it is not necessary to conduct identification parade and the aforesaid case law is not applicable to this case. With great respect, I am at

every difficulty to digest this observation made by the Sessions Judge for the simple reason that no physical identification particulars have been

stated either in the written complaint or in the statement given before the Investigating Officer recorded u/s 161(3) Cr.P.C. at any point of time

from any of the witnesses. But some reference has been made at the fague end of the investigation subsequent to the arrest of the accused. In my

deep consideration it is only a hearsay and for any reason, the prosecution is not entitled to rely the said portion of the evidence for the reason of

Section 157 of the Indian Evidence Act. it is not known for what reasons and difficulty or obstacles or circumstances, the factum of identification

parade conducted in this case has been suppressed and why the name of the Judicial Officer who conducted the identification parade has not even

been stated in the memo of evidence. In fact, in the context of no identity of the assailant nor even referred to by any of the witnesses either in the

F.I.R. which came into existence at the earliest point of them or any of the prosecution documents, the securing of the accused necessitates the

immediate conduct of the identification parade as per the well settled judicial pronouncement which the highest Court of Law in this country often

and often repeatedly held so and however, it has not been followed for the obvious reasons.

In Rameshwar Singh Vs. State of Jammu and Kashmir, while dealing with the scope of section 9 of the Evidence Act, the Supreme Court has

settled the ratio as hereunder:-

Identification of the accused by the concerned witness where the accused is not previously known to the witness furnishes to the investigating

agency an assurance that the investigation is proceeding on right lines in addition to the furnishing corroboration of the evidence to be given by the

witness later in Court at the trial. From this point of view such identification is a matter of great importance both for the investigating agency and for

the accused.

The Supreme Court in Century Spinning and Manufacturing: Company limited v. State of Maharashtra in the same volume of the citation at page

545 has held as follows:-

It cannot be said that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground

for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person''s liberty and it

cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred

to in Section 175 consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially

consider the question of doing so. Without fully adverting the material on the record it must not blindly adopt the decision of the prosecution.

Held that the trial Court rightly came to the conclusion that the prosecution for the offence charged was groundless. Order of discharge made by

him was eminently just and fair order.

While dealing with the scope of Sections 227 and 228 Cr.P.C. this Court had the occasion to observe in a case held between P.R.Subramanian

v. Periakaruppan and Others (1993 (2) MW (Crl) 71) as hereunder:-

(a) it is well settled that a Judge exercising his power under Sections 227 and 228 of the Code of Criminal Procedure while framing a charge or no

charge, he is required to evaluate the entire material and documents made available on record with the object of finding out if the facts emerging

therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence and for this limited purpose the Judge

may sift the evidence as he cannot be expected even at the initial stage to accept all that the prosecution stated as gospel truth even if it is opposed

to common sense of the broad probabilities of the case.

b) The probing of the entire case records and the material relied on by the prosecution to find out the existence of any material available against the

accused towards the projection of the alleged offences were or were not in existence is the parameter and consideration to be mandatorily

adopted by the Judge while framing the charge and that was the reason why the provision has been so aptly worded u/s 227 of the Code that if the

Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so

doing. But what is ''not sufficient ground'' is a matter to be considered by the Judge who is sitting on Section 228 with the guidelines clearly laid

down by the Apex Court.

Thus, the legal ratio settled by now by the Judicial pronouncements, of course repeatedly, is to evaluate the whole material and evidence

available even to identify the prima facie or presumption of the involvement of the accused in any form and then on ascertaining or identifying the

same only in any form Section 228 can be pressed into service and if not, Section 227 will definitely come into operation in any case.

Controverting the above contentions raised by the learned Senior Counsel on behalf of the revision petitioner, Mr.A.N.Rajan, the learned

Government Advocate on behalf of the State/Respondent placed reliance upon so many case laws referring in Lalkhan v. Inspector of Police,

Villupuram (1983 M.1.J. (Crl.) 614) State of U.P. Vs. Man Mohan and Others, Minakshi Bala v. Sudhir Kumar (1994 S.C.C.(Crl.) 1181), State

of Bihar v. K.J.Singh ( 1994 S.C.C (Crl.)63), Santhosh Dev. v. Archna Guha (1994 S.C.C.(Crl.) 546), Mahoj Kumar Shukla v. State of U.P.

(1995 (1) C.C.R. 314) and R.S.Nayak v. A.R.Antulay and Others (1986 S.C.C. (Crl.) 256). Barring the reliance made upon the above case

laws, the learned Government Advocate would also venture his interest by dwelling upon the motive portion of the prosecution case as well as the

statement given by Mr.Panneerselvam and another witness. All the more he would contend that the reference of the complainant

Mr.Krishnamurthy, the first witness, referring a person to be aged about 20 or 25 to the height of 5-5 1/2 feet will be the identity to be taken as the

basis for the whole prosecution. Even so referring I am able to point out that the learned Government Advocate has conveniently omitted to say the

non reference of the accused by any of the prosecution witness in any manner and that his job cannot be done for the simple reason that the

witnesses examined by the investigating agency has not rendered any help to the prosecution to be agitated before the Court. This is a revision filed

u/s 397 of the Code of Criminal Procedure to revise the order passed by the learned trial Judge in declining to discharge the accused for the

offence u/s 302 I.P.C. for no evidence or material available against the accused and that for the said purpose one has to evaluate the whole

material and evidence collected by the investigating agency to frame a charge legally and that what has been stated by the prosecution is not the

gospel truth to be taken as the very basis for framing the charge. Therefore, what has been observed by the learned Judge in the impugned order is

not correct and in my respectful view it is highly erroneous and perverse which cannot be sustained. There was no basis for framing any charge in

the absence of the totality of the materials required. It is not a mere fancy at all to have the trial against any person for the offence punishable u/s

302 I.P.C. by mere presumption. If the concept propagated by and on behalf of the respondent is accepted, I would like to say, with great

constraint, that all the criminal trials in respect of murder charges would become a fancy and against the procedural mandate as repeatedly and

often held by the Courts of Law in this country. Therefore, the impugned order passed by the learned Sessions Judge became vulnerable and liable

to be set aside. The catena of the case laws relied on by and on behalf of the respondent, in my respectful view and consideration, do not render

any help to the respondent. Therefore, I do not propose to refer each and every case law in detail in this order. In short to say, the revision has to

succeed and the impugned order is consequently liable to be set aside for all reasoning given above.

In the result, the Revision stands allowed. Consequently, the order passed by the learned Sessions Judge in Crl. M.P.No.4114 of 1993 on

8.10.1993 is hereby set aside. On the other hand, petition filed u/s 227 of the Code of Criminal Procedure is hereby allowed by discharging the

accused u/s 227 Cr.P.C.