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Judgment
S. Nagamuthu, J.—These appeals arise out of the Judgment of conviction of the Appellants imposed by the learned Additional Sessions
Judge, Mahila Court, Chennai in C.C. No. 9 of 2000 wherein the Appellant in Crl. A. No. 263 of 2011 by name Mr. Ganesan [1st accused] has
been convicted for offence u/s 354 of IPC and sentenced to undergo R.I. for a period of 1 year and to pay a fine of Rs. 5,000/-in default to
undergo S.I. for a period of 3 months. The Appellant in Crl. A. No. 57 of 2004 Mrs.Vijayasanthi [2nd Accused] has been convicted for offence
u/s 354 r/w 109 of IPC. However, the trial court did not impose sentence on the accused Vijayasanthi [2nd accused] for this offence.
These Appellants and Mr. Suryakumar were arrayed as accused in C.C. No. 8 of 2000 arising out of the same first information report. In said
case also the accused Ganesan [Appellant herein] stood charged for offence u/s 354 of IPC; accused Mr. Suryakumar and the accused
Vijayasanthi [Appellant herein] stood charged for offence u/s 324 of IPC.
Yet another case in S.C. No. 448 of 2010 arising out of the same first information report [FIR] was also tried by the same Court. In the said
case, Mr. Suryakumar and Vijayasanthi [Appellant herein] were the accused. Mr. Suryakumar stood charged for offence under 376 of IPC and
the Appellant Vijayasanthi stood charged for offence u/s 372, 376 r/w 109 of IPC.
Similarly, in yet another case in S.C. No. 451 of 2000 arising out of the same first information report, Mr. Suryakumar stood charged for
offence u/s 376 of IPC and the Appellant Vijayasanthi stood charged for offence under Sections 372 and 376 r/w 109 of IPC.
The trail court tried all the four cases separately, but delivered a common Judgment in all the four cases on 05.12.2003. In C.C. No. 9 of 2000,
as stated above, the trial court convicted both the accused Mr. Ganesan [A1] and the accused Mrs.Vijayasanthi [A2]. The trial court in S.C. No.
448 of 2000 convicted the accused Mr. Suryakumar for offence u/s 376 of IPC and convicted the accused Vijayasanthi for offence u/s 372 and
376 r/w 109 of IPC. Similarly, in C.C. No. 8 of 2000 , the trial court convicted the Appellant Mr. Ganesan [1st accused therein] for offence u/s
354 of IPC and acquitted the accused Suryakumar [2nd accused therein] and Vijayasanthi [3rd accused therein] from the charge u/s 324 of IPC.
Similarly, in the other case in S.C. No. 451 of 2000, the trial court convicted the accused Suryakumar for offence u/s 376 of IPC as well as the
accused Vijayasanthi for offence u/s 372 and 376 r/w 109 of IPC. Separate appeals have been preferred in respect of the conviction and sentence
imposed in S.C. Nos. 448 and 451 of 2000, and C.C. No. 8 of 2000. Those appeals are dealt with separately. This Judgment governs only the
conviction and sentence imposed in C.C. No. 9 of 2000.
Before going into the facts of the case, it would be very appropriate for this Court to highlight the serious illegalities / irregularities committed by
the trial court, which in fact, have resulted in failure of justice. A little narration of facts would be sufficient to highlight the same.
P.W.1 is the victim. She is the daughter of the accused - Vijayasanthi [the 2nd accused]. Accused # Vijayasanthi''s husband passed away. The
accused Vijayasanthi was thereafter in living in relationship with Suryakumar [accused in the other case]. It is alleged that during the year 1988,
P.W.1, the victim was hardly aged 14 years. She was acting in tele serials. The accused Vijayasanthi was having an ambition to make her as an
actress in films. Suryakumar was promising that he would get a chance for her to act in films. Under the said premise, it is alleged that on
29.05.1998, the son in law of Suryakumar took P.W.1 to the house of the accused Ganesan [1st Accused] at No. 19-A, 1st Street, Vathiyar
Street, Rangarajapuram, Chennai. The accused Vijayasanthi also accompanied him. The accused Vijayasanthi wanted P.W.1 to go into a room
where the accused Ganesan was waiting. As soon as P.W.1 entered into the room, the accused Ganesan closed the door. When she questioned
as to why he closed the door, he asked her as to whether, her mother did not say anything about the purpose of her visit. Then , he told her that he
would get a chance in cinema provided she conceded to his sexual advances. The accused Ganesan attempted to hug and kiss her. But, she
pushed him away and ran out of the room. When she told the same to her mother [2nd accused] , she in turn told her that if only she conducted
herself as desired by the accused Ganesan, he would get cinema chance. Then, the accused Vijayasanthi told the accused Ganesan that she would
persuade P.W.1 and bring her back again for the said purpose. These are the allegations which are the foundations for the charges u/s 354 of IPC
against the accused Ganesan, the 1st accused and u/s 354 r/w 109 of IPC against Vijayasanthi, the 2nd accused in C.C. No. 9 of 2000.
Again on 05.06.1998, accused Ganesan, Suryakumar and the accused Vijayasanthi took P.W.1 to Alapuzha in Kerala informing P.W.1 that
she was being taken to the cinema shooting spot. In Alleppey, they stayed in a lodge. Mr. Suryakumar and Vijayasanthi along with P.W.1 stayed
in a room whereas the accused Ganesan and yet another girl by name Rama stayed in the next room. In the presence of P.W.1, Mr. Suryakumar
and Vijayasanthi indulged in sexual activities in the room. Thereafter, they took P.W.1 to the next room where the accused Ganesan was staying.
When Ms. Rama went out of the room, P.W.1 was asked to go into the room. The accused Vijayasanthi and Suryakumar instructed P.W.1 to
concede to the sexual overtures of the accused Ganesan. They promised her that if she did so, she would get cinema chance and earn a lot. But,
she did not bow to the pressure. She bite the hand of the accused Ganesan and cried. Enraged over the same, the accused Vijayasanthi and
Suryakumar burnt her back and legs with lighted cigarette buds. The accused Ganesan also helped them to do so. At that time a worker in the
lodge came and therefore, they left her. The accused Mrs.Vijayasanthi put ointment for the injuries. Then, they confined P.W.1 alone in the room,
locked it from outside and went away. In the night, they returned and thereafter brought P.W.1 back to Chennai. These are the allegations which
are the foundations for the charges in C.C. No. 8 of 2000 wherein the Ganesan [1st Accused therein] stood charged for offence u/s 354 of IPC
and Mr. Suryakumar and the accused # Vijayasanthi stood charged for offence u/s 324 of IPC.
Again on 14.06.1998, the accused Mrs.Vijayasanthi sent P.W.1 along with Mr. Suryakumar to a cinema company for getting a chance. Mr.
Suryakumar took her to the house of a cinema producer by name R.B. Choudry. It was around 7.00 p.m. As soon as they entered into a room in
the house, Mr. Suryakumar beat her with hands and removed her dress. He closed her mouth and had sexual intercourse. Then, he took her back
to her house. P.W.1 told the accused Vijayasanthi about the said incident. But, the accused Vijayasanthi told that she had sent her along with the
accused Suryakumar only for the said purpose so that she would not have fear in future to have sex with anybody. The accused Vijayasanthi and
Suryakumar threatened her of dire consequences and warned her not to disclose the same to anybody. These are the allegations which are the
foundations for the charges in S.C. No. 448 of 2000 wherein Mr. Suryakumar [A1 therein] stood charged for offence u/s 376 of IPC and the
accused Vijayasanthi [A2 therein] stood charged for offence under Sections 372 and 376 r/w 109 of IPC.
Again on 17.06.1998 around 2.00 p.m. at the house of P.W.1, Mr. Suryakumar [A1 therein] again had forcible intercourse with P.W.1
against her wish on the inducement made by the accused Vijayasanthi [A2 therein]. This is the foundation for the charges in S.C. No. 451 of 2000
wherein Mr. Suryakumar stood charged for offence u/s 376 of IPC and the accused Vijayasanthi stood charged for offence u/s 372 and 376 r/w
109 of IPC.
Again on 25.06.1998, one Selvam, a person involved in flesh trade came to the house of P.W.1. He gave a sum of Rs. 5,000/- to the accused
- Vijayasanthi and wanted to send P.W.1 with him for prostitution with one Panchatcharam. But, the accused Vijayasanthi did not disclose the
same truly to the victim. Instead, she took her in a car driven by Selvam telling her that they were going for purchasing cloths. In the said car, a
person by name Panchatcharam was also travelling. The car was proceeding towards Mahabalipuram. After some time, P.W.1 asked the Accused
Vijayasanthi as to why the car was proceeding towards Mahabalipuram. For that , she told P.W.1 that if she conceded to the sexual desires of
Panchatcharam, he himself would get cloth for her. When Panchatcharam put his hand on her shoulder, P.W.1 raised hue and cry. Thereafter,
when Panchatcharam asked the Accused Vijayasanthi as to whether she did not tell P.W.1 about the purpose. she answered in the negative.
Thereafter, she was again brought back to her house.
On 26.06.1998, P.W.1 escaped from the house of the 2nd Accused Vijayasanthi fearing for further sexual assault by the accused. She went to
the house of her friend at Ambattur and stayed there for about 3 days. Thereafter, she came to Tambaram bus stand and got into a bus. A woman
by name Sakunthala was sitting by her side. P.W.1 was weeping. When Sakunthala enquired as to what had happened, P.W.1 narrated the
events. Then, Sakunthala took her to police on 04.08.1998 where P.W.1 preferred a complaint to the Inspector of Police, Kodambakkam Police
Station. Ex.P.1 is the complaint. In the said complaint, she narrated all the events right from 29.05.1998. To be precise, she vividly narrated about
all the four occurrences on 29.05.1998, 05.06.1998, 14.06.1998 and 17.06.1998 respectively. Based on the said complaint, P.W.7, the then Sub
Inspector of Police attached to Kodambakkam Police Station, registered a case in Crime No. 1915 of 1998 for offences under Sections 342,
372, 376, 354 and 506 of IPC. Ex.P.3 is the FIR. He forwarded both the complaint and the FIR to the jurisdictional Magistrate and then handed
over the case records to P.W.11 for investigation.
P.W.11, the then Inspector of Police took up the case for investigation , examined P.W.1, P.W.2 [younger sister of P.W.1], P.W.3, an
employee in the proprietary concern owned by Ganesan, P.W.4 - a resident of an apartment where P.W.1 was residing, P.W.5 - Panchatcharam
referred to above, P.W.6, the husband of P.W.1 and other witnesses and recorded their statements. On 05.08.1998, he arrested the accused
Suryakumar and Vijayasanthi and sent them for judicial remand. He made a request for conducting medical examination for P.W.1 and
Suryakumar. P.W.10 examined Suryakumar on 06.08.1998 and gave opinion that he was capable of performing sexual intercourse with a woman.
One Dr. Kamala Anantharaman, the professor of Forensic Science, Madras Medical College examined P.W.1 on 05.08.1998 and gave opinion
that P.W.1 had accustomed to sexual intercourse. There were no external injuries found. The hymen in the vaginal cavity was found ruptured. The
vaginal cavity freely allowed two fingers to enter. From these, Dr. Kamala Anantharaman opined that P.W.1 had undergone sexual intercourse.
Dr. Kamala Anantharaman also found scars on the body of P.W.1. Since Dr. Kamala Anantharaman was unable to appear before the court and
depose, one Dr. R.Selvakumar [P.W.12] was examined who has deposed to about the said facts.
On completing the investigation, P.W.11 rightly laid four separate charge sheets. The first charge sheet is in respect of the alleged occurrence
on 29.05.1998. The learned Metropolitan Magistrate took cognizance on the said report in C.C. No. 7708 of 1999 [renumbered as C.C. No. 9
of 2000 on the file of the learned Principal Sessions Judge, Chennai] for offence u/s 354 and 354 r/w 109 of IPC.
The 2nd charge sheet was in respect of the alleged occurrence on 05.06.1998 against the accused Ganesasn and two other accused namely
Suryakumar and the accused Vijayasanthi. The charges are under Sections 354 of IPC against accused Ganesan and u/s 324 of IPC against the
others. The learned Magistrate took cognizance on the said final report in C.C. No. 7707 of 1999 [renumbered as C.C. No. 8 of 2000 on the file
of the learned Principal Sessions Judge, Chennai.]
Third charge sheet is in respect of the alleged occurrence on 14.06.1998 against Suryakumar and the accused Vijayashanthi. The charges are
u/s 376 of IPC against Mr. Suryakumar and under Sections 376 r/w 109 and 372 of IPC against the accused Vijayasanthi. The learned
Metropolitan Magistrate took cognizance on the same in P.R.C. No. 7706 of 1999 [relating to S.C. No. 448 of 2000].
The 4th charge sheet is in respect of the alleged occurrence on 17.06.1998 against Suryakumar and the accused Vijayashanthi. The charges
are u/s 376 against Mr. Suryakumar and u/s 372 and 376 r/w 109 of IPC against the accused Vijayasanthi. The learned Metropolitan Magistrate
took cognizance of the same in P.R.C. No. 7709 of 1999 [relating to S.C. No. 451 of 2000].
Thereafter, the learned Magistrate by two separate proceedings committed the cases in P.R.C. Nos. 7706 and 7709 of 1999 since some of
the offences were triable exclusively triable by the court of sessions. The case in P.R.C. No. 7706 of 1999 was taken on file in S.C. No. 448 of
2000 and the case in P.R.C. No. 7709 of 1999 was taken on file in S.C. No. 451 of 2000 by the Principal Sessions Judge, Chennai. Then, the
learned Principal Sessions Judge made over these two cases to the file of the Additional Sessions Judge [Mahila Court], Chennai, for trial.
When the above appeals as against the convictions in all the four cases were heard, this Court had a doubt as to how the cases in C.C. Nos. 8
of 2000 and 9 of 2000, which are not exclusively triable by court of sessions, came up for trial before the learned Additional Sessions Judge. A
perusal of the Judgment of the trial court revealed that as recorded in the Judgment by the trial court, these two cases in C.C. Nos. 8 and 9 of
2000 were also committed to the Principal Sessions Court and the Principal Sessions Court, in turn, made over the same to the learned Additional
Sessions Judge, Mahila Court, Chennai, for trial. But, this Court, on a perusal of records, found that there was no committal orders in respect of
these two cases in C.C. Nos. 8 & 9 of 2000 passed by the learned Metropolitan Magistrate. A perusal of the records revealed that the then
XVIII Metropolitan Magistrate, Saidapet, Chennai had written a letter to the Principal Sessions Judge, Chennai, through the Chief Metropolitan
Magistrate stating that all the above four cases arose out of a single FIR, but four different charge sheets were filed, on which, cognizance was
taken separately. Since two cases had already been committed to the Court of Sessions for trial as some of the offences involved therein were
exclusively triable by a Court of Sessions, the learned Metropolitan Magistrate sought for orders from the learned Principal Sessions Judge to
withdraw and transfer the cases in C.C. No. 7707 and 7708 of 1999 also to the Court of Sessions. The records, however, did not contain any
further order passed by the Court of Sessions or the High Court to the Metropolitan Magistrate in this regard in pursuance of the said request.
However, the learned Counsel appearing for the Appellants reported that there was no committal order passed in respect of these two cases , but
the records were simply submitted by the Metropolitan Magistrate to the Principal Sessions Judge, Chennai. In view of the above conflicting
statements, this Court called for remarks from the learned Principal Sessions Judge, Chennai, in respect of the following queries:
(1) Whether the case in C.C. Nos. 7707 and 7708 of 1999 were committed by the learned Magistrate to the learned Principal Sessions Judge?
(2) If there was no committal order, how the case in C.C. Nos. 7707 and 7708 of 1999 were entertained by the learned Principal Sessions Judge
and forwarded to the Mahalir Neethimandram, Chennai, for trial?
(3) How the cases in C.C. Nos. 7707 and 7708 of 1999 were again re-numbered as C.C. Nos. 8 and 9 of 2000 and is there any Calendar Case
Register maintained in the Sessions Court?
For the above queries, the learned Principal Sessions Judge, City Civil Court, Chennai, by his letter dated 05.04.2011 has submitted the
following remarks:
(1) They were not committed by the learned Magistrate to this Court. As seen above, committal of such cases will not arise at all.
(2) Since those two Calendar Cases are connected to the two Sessions Cases, based on the report of XVII Metropolitan Magistrate, the then
Principal Sessions Judge, in exercise of his power u/s 408(1) of Code of Criminal Procedure withdrawn those cases to his file and u/s 194 of
Code of Criminal Procedure made over them to the II Additional Sessions Court and then to Mahila Court, when it was constituted.
(3) Merely because those two Calendar Cases were transferred by the Sessions Court u/s 408 of Code of Criminal Procedure they will not cease
to be Calendar Cases and transform into Sessions Cases. A warrant case can never become a Sessions Case unless it is covered u/s 323 of Code
of Criminal Procedure So, the said two Calendar Cases in the Metropolitan Magistrate Court , necessarily have to be received and taken on file as
Calendar Cases only. So, they were rightly taken on file in this Court as C.C. Nos. 8 & 9 of 2000. In this Court, there is a separate Calendar
Register for these type of connected/counter-cases, which are to be tried along with Sessions Cases.
The learned Principal Sessions Judge, while justifying the action of his predecessor in entertaining these two Calendar Cases without there
being committal orders, has concluded his remarks as follows:
In view of the foregoing, in my considered view, in making over of these two Calendar Cases the then Principal Sessions Judge Mr. V.
Viswanathan, now retired, to the II Additional Sessions Judge and then to the Mahalir Needhimandram and disposing of these two cases by the
then Additional Sessions Judge, Mahalir Needhimandram, now, Registrar-General, High Court, Madras have not committed any illegality and what
they have done is in accordance with law.
From the above report submitted by the learned Principal Sessions Judge, now, it is crystal clear that the above two Calendar Cases in which
the offences are not exclusively triable by the Court of Sessions were withdrawn by the learned Principal Sessions Judge and accordingly they
were entertained. That is how, all the four cases were before the Mahila Court, Chennai. Therefore, it is manifest that the statement of the learned
Additional Sessions Judge, Mahila Court, Chennai, in the Judgment under appeal that the above two cases in C.C. No. 7707 and 7708 of 1999 [
renumbered as C.C. Nos. 8 & 9 of 2000 on the file of the learned Principal Sessions Judge, Chennai] were also committed to the Principal
Sessions Judge, Chennai, from where ultimately they were made over to the Mahila Court for trial is not correct. As stated by the learned Principal
Sessions Judge, there was no committal order passed by the learned Metropolitan Magistrate in respect of these two cases in C.C. Nos. 8 & 9 of
2000.
The trial court rightly conducted separate trials in all the four cases. But, in paragraph 7 of the Judgment, the trial court has made the following
statement:
Parallel trial has been conducted, evidence was taken and documents were marked in S.C. No. 448 of 2000 and the same set of evidence and
documents were substituted in rest of the cases.
A perusal of the records would reveal that the trial court framed charges in all the four cases as detailed in the earlier paragraphs of this
Judgment. As many as 12 witnesses were examined and 10 documents were exhibited in S.C. No. 448 of 2000. P.W.1, the victim was examined
in S.C. No. 448 of 2000 on 04.01.2002 and she was cross examined by the counsel for all the three accused including Ganesan [the Appellant
herein] who is not an accused in S.C. No. 448 of 2000. In chief examination as well as in cross examination, she had vividly narrated about the
occurrences in respect of all the four cases. P.W.2 is her sister. She has turned hostile and she has not supported the case of the prosecution in any
manner. P.W.3 is an employee of Ganesan. He has also turned hostile and has not supported the case of the prosecution in any manner. P.W.4 is
a resident of the apartment where P.W.1 was also residing. He has stated that accused Ganesan was an astrologer. He has not stated anything
incriminating against the accused. P.W.5 has stated that on one occasion one Selvam, a real estate broker approached him and offered to fix a
house for him. At that time, P.W.1 and the accused Vijayasanthi also came along with Selvam. At that time accused Vijayasanthi told P.W.5 that
she would send her daughter with him provided he paid Rs. 5000/-. P.W.6 is the husband of P.W.1. According to him, he had fallen in love with
P.W.1 for quite some time. He has further deposed that the accused Vijayasanthi offered to give P.W.1 in marriage to him. But, subsequently, she
had given a complaint as though P.W.1 was missing. He has further stated that he married P.W.1 in the year 2000. He has not stated anything
incriminating against the accused. P.W.7 was the then Sub Inspector of Police, who registered the case on the complaint of P.W.1. P.W.8 has
deposed that he is the friend of the husband of the accused Vijayasanthi. After the demise of her husband, accused Vijayasanthi was in living in
relationship with Suryakumar. He has not stated anything incriminating against the accused. Therefore, he was treated as hostile. P.W.9 has also
not stated anything in favour of the prosecution. Therefore, he was treated as hostile. P.W.10 Dr. Madhikaran has spoken to the fact that
Suryakumar is capable of performing sexual intercourse with a woman. P.W.11 is the Investigating Officer. He has spoken to about laying of four
different charge sheets in respect of the above four occurrences. P.W.12 Dr. Selvakumar has spoken to about the opinion offered by Dr. Kamala
Anantharaman in respect of P.W.1.
When the incriminating evidences were put to the accused u/s 313 of Code of Criminal Procedure they denied the same as false. On the side
of the accused, 2 witnesses by name Mrs. Chandrabai [D.W.1] and Mrs. Priya [D.W.2] were examined. D.W.1 is the mother of accused
Vijayasanthi and the grand mother of P.W.1. She has stated that accused Vijayasanthi hails from a very reputed family and there was no need for
involving P.W.1 in prostitution. She would further state that because the accused Vijayasanthi did not give consent for the marriage of P.W.1 with
P.W.6, this false complaint had been given. D.W.2 is the daughter of Suryakumar. She has stated that accused Suryakumar and the accused
Vijayasanthi married after the demise of the husband of the accused Vijayasanthi. D.W.2 got married in the year 1998 in a temple. The accused
Suryakumar as well as the accused Vijayasanthi signed as witnesses to the marriage. Ex.D.1 is the Marriage Certificate issued by Arulmighu
Angalaparameswri Aalayam, Vadapalani, Chennai. Thus, the plea of the accused before the trial court was that since the love affair between
P.W.6 and P.W.1 was not to the liking of the accused Suryakumar and the accused Vijayasanthi and since they did not agree for marriage
between P.W.1 and P.W.6, P.W.1 had developed grudges against them. According to the accused, P.W.1 eloped with P.W.6 on 26.06.1998. In
respect of the same, the accused Vijayasanthi had given a complaint to the Respondent police. On the basis of the said complaint, a case was
registered in Cr. No. 1556 of 1998 for woman missing. After the registration of the said case, since P.W.1 and P.W.6 had an apprehension that
the accused Suryakumar and the accused Vijayasanthi would not allow them to live as husband and wife, this complaint had been falsely given.
One more aspect, which requires mention at this stage is that in S.C. No. 448 of 2000, an additional charge was framed on 24.06.2003 [the
accused were earlier questioned u/s 313 of Code of Criminal Procedure on 31.03.2003]. Thereafter, on a petition filed by the accused P.W.1 was
recalled for the purpose of further cross examination. Accordingly, she was cross examined on 25.08.2003. During such further cross examination,
P.W.1 has completely disowned her earlier version made in the chief examination as well as in the cross examination. She has, now, stated that
there was no rape committed by the accused Suryakumar and no assault was made on her. Thus, during the further cross examination, she has
given a complete clean chit to the accused.
As I have already mentioned, the evidence recorded in S.C. No. 448 of 2000 was substituted by the learned Additional Sessions Judge in all
the other three cases. In all the other three cases, the respective accused were questioned u/s 313 of Code of Criminal Procedure in respect of the
incriminating evidences.
Finally, the trial court rendered a common Judgment dated 05.12.2003 in all the four cases namely in C.C. Nos. 8 and 9 of 2000 and S.C.
Nos. 448 and 451 of 2000. The trial court considered the evidences in common and convicted the accused in S.C. Nos. 448 and 451 of 2000
and C.C. No. 9 of 2000, but, however, insofar as C.C. No. 8 of 2000 is concerned, the trial court convicted the Appellant Ganesan [1st accused
therein] alone and acquitted the 2nd and 3rd accused namely, Suryakumar and Vijayasanthi. In paragraph 57 of the Judgment, the trial court has
held as follows:
In the result, Vijayashanthi and Suriyakumar are acquitted of the charge u/s 324 of IPC. The accused Ganesan [A-1] is found guilty u/s 354 of
IPC [on two counts] and in respect of each count, he is convicted and sentenced to undergo R.I. for a period of one year and also to pay a fine of
Rs. 5000/- [Rupees five thousand only] [for each count] and in default to undergo S.I. for a period of three months.
Accused Suriyakumar is found guilty u/s 376(1) of IPC [on two counts] and in respect each count he is convicted and sentenced to undergo R.I.
for a period of eight years and also to pay a fine of Rs. 10,000/- [Rupees ten thousand only] [for each count] and in default to undergo S.I. For a
period of six months.
Accused Vijayasanthi is found guilty u/s 372 [on two counts] 376 r/w 109 [on two counts] and 354 r/w 109 of IPC and in respect of the offence
u/s 372 of IPC [on two counts] in respect of each count she is convicted and sentenced to undergo R.I. for a period of eight years and also to pay
a fine of Rs. 10,000/- [for each count] and in default to undergo S.I. for a period of six months. No separate sentence has been imposed in respect
of offence u/s 376 r/w 109 and 354 r/w 109 of IPC since those acts are covered u/s 372 of IPC for which she is punished.
All the sentences against all the accused shall run concurrently.
The period of detention undergone by each of the accused during trial or inquiry is ordered to be set off as per Section 428 of Code of Criminal
Procedure against their respective imprisonment.
The entire fine amount if paid by Suryakumar and Vijayasanthi is ordered to be payable as compensation to Shobha after the appeal time is over.
As against the conviction in S.C. No. 448 of 2000, the accused Suryakumar has filed Crl. A. No. 413 of 2004 and the accused Vijayashanthi
has filed Crl. A. No. 20 of 2004. As against conviction in S.C. No. 451 of 2000, accused Suryakumar has filed Crl. A. No. 262 of 2011 and
accused Vijayashanthi has filed Crl. A. No. 59 of 2004. As against conviction in C.C. No. 9 of 2000, accused Ganesan and accused Vijayasanthi
[the Appellants herein] have filed the instant appeals in Crl. A. No. 263 of 2011 and Crl. A. No. 57 of 20004. As against the conviction in C.C.
No. 8 of 2000, the 1st accused Ganesan has filed Crl. A. No. 1922 of 2003. Since all these appeals, arising out of four cases, are in respect of a
common Judgment, I have an occasion to go through the records in all the four cases and also peruse the same which revealed the above startling
facts.
At the outset , I have to state that u/s 219 of Code of Criminal Procedure there can be joinder of charges in respect of three offences of the
same kind committed within a year. But, in this case, the offences said to have been committed by these accused on four different occurrences
would not fall within the ambit of Section 219 of Code of Criminal Procedure In these cases, rightly, there was no joint trial by charging the
accused together in respect of all four occurrences. The trial court had rightly conducted four separate trials. When that be so, the evidence let in
one case in respect of one occurrence cannot be made use of against the accused in the other case. But the trial court has committed very serious
illegality in considering the evidences in all cases together and in delivering a common Judgment. In my considered opinion, delivering a common
Judgment in respect of four different occurrences making out four different offences on four different occasions and at four different places is illegal
and the same is a procedure unknown to criminal law. Therefore, on this account, the entire Judgment of the trial court is vitiated.
In this regard, we may refer to the Judgment of the Hon''ble Supreme Court in Nathilal v. State of U. P. wherein the Hon''ble Supreme Court
has laid down the following dictum:
Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any
manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after
the other.
The said Judgment of the Hon''ble Supreme Court relates to counter cases. The Hon''ble Supreme Court has held that both the cases, which
are counter cases relating to the same occurrence, should be tried by the same judge in the following manner:
We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try
both cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the
judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the
Judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate Judgments. In deciding each of the cases,
he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the
judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on
record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the Judgments
must be pronounced by the same learned Judge one after the other.
From the above, it is crystal clear that fair trial as guaranteed under Article 21 of the Constitution of India should be afforded to. In simple
terms, the evidence, both oral and documentary, let in one case is not evidence in the other case and, therefore, the same cannot be considered for
any purpose in the other case. Similarly, as laid down by the Hon''ble Supreme Court, there cannot be a common Judgment delivered in two or
more cases. Even in respect of cross cases arising out of a single occurrence in respect of each case there has to be a separate Judgment. But,
unfortunately, in the case on hand, the trial court has not followed the said procedure. As I have already stated, the trial court has recorded the
evidence in one case and substituted the same in the other case. This procedure is illegal. Thereafter, the trial court has delivered a common
Judgment considering the evidence in common in respect of the other cases also. Rendering of a common Judgment that too considering the
evidences in common itself is illegal. For these reasons, I have no hesitation to hold that the common Judgment delivered in all the four cases is
vitiated. In these circumstances, this Court cannot again consider the evidence in common and render a common Judgment solely because all these
appeals are against the common Judgment, as the same would become another illegality. Therefore, these appeals are disposed of on considering
the evidence , if any, available on record in C.C. No. 9 of 2000 alone.
Yet another serious procedural lapse which this Court has noticed is, the way in which this case, involving offences which are not exclusively
triable by Court of Sessions, came up for trial before the Additional Sessions Judge, Mahila Court, Chennai. As we have already noticed, though
the learned Additional Sessions Judge has stated in the common Judgment that this case came to be tried on having been committed by the
Magistrate, it is factually incorrect as there was no committal order passed by the learned Metropolitan Magistrate as reported by the Principal
Sessions Judge. It is needless to point out that u/s 193 of the Code of Criminal Procedure, no court of sessions shall take cognizance of any
offence as a court of original jurisdiction unless the case is committed to it by a Magistrate under the Code of Criminal Procedure except as
otherwise expressly provided in the Code of Criminal Procedure or by any other law for the time being in force. A close reading of Section 193 of
Code of Criminal Procedure would make it abundantly clear that Judicial Magistrate can commit a case, if it has been expressly provided either in
the Code of Criminal Procedure or in any other law for the time being in force.
Section 209 of Code of Criminal Procedure makes such express provision impelling a Magistrate to commit a case for trial to the Court of
Sessions , if any of the offences involved in the case is exclusively triable by a Court of Sessions. Apart from the said provision, it is provided in
Section 407 of Code of Criminal Procedure as follows:
Power of High Court to transfer cases and appeals. (1) Whenever it is made to appear to the High Court
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or
is expedient for the ends of justice, it may order
(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent
to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other
such Criminal Court of equal or superior jurisdiction ;
(iii) that any particular case be committed for trial to a Court of Session ; or
(iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same
sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
Thus, it has been expressly provided in Section 407 of Code of Criminal Procedure that though a case involves offences which are not
exclusively triable by a Court of Sessions, the High Court has got power to direct the Magistrate to commit the same for trial to the Court of
Sessions on any one or more of the three grounds stated in Section 407(1) of Code of Criminal Procedure
Yet another provision in the Code of Criminal Procedure under which a Magistrate can commit a case, though none of the offences involved
therein is exclusively triable by a Court of Sessions, is Section 323 of the Code of Criminal Procedure which reads as follows:
Procedure when, after Commencement of inquiry or trial, Magistrate finds case should be committed. If, in any inquiry into an offence or a
trial before a Magistrate, it appears to him at any stage of the proceedings before signing Judgment that the case is one which ought to be tried by
the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII
shall apply to the commitment so made.
Except these three provisions which have been expressly made , there is no other provision in the Code under which a case can be committed
to a Court of Sessions by a Magistrate. The learned Principal Sessions Judge in his remarks submitted to this Court has stated that u/s 408 of
Code of Criminal Procedure the Sessions Judge has got power to withdraw any case from the Magistrate and to either try himself or to make over
the same to an Additional Sessions Court for trial. I regret, the learned Principal Sessions Judge, Chennai has not understood the scope of Section
408 of Code of Criminal Procedure correctly in its letter and spirit. The power of the High Court to direct a Magistrate to commit any case to the
Court of Sessions has not been vested with the Sessions Court u/s 408 of Code of Criminal Procedure Sub-section (3) of Section 408 of Code of
Criminal Procedure reads as follows:
Power of Sessions Judge to transfer cases and appeals.
(1) ...
(2) ...
(3) The provisions of Sub-sections (3), (4), (5), (6), (7) and (9) of Section 407 shall apply in relation to an application to the Sessions Judge for an
order under Sub-section (1) as they apply in relation to an application to the High Court for an order under Sub-section (1) of section 407, except
that Sub-section (7) of that section shall so apply as if for the words ""one thousand rupees"" occurring therein, the words ""two hundred and fifty
rupees"" were substituted.
A close scrutiny of the above provision would go to show that Sub-sections 1 and 2 of Section 407 of Code of Criminal Procedure are not
applicable to the Court of Sessions. It is only u/s 407 (1) and (2) of Code of Criminal Procedure the High Court has been vested with the power
to direct the Magistrate to commit any case to the Court of Sessions for trial whether on a report submitted by the Magistrate or on an application
made by a party to the case. No such power has been vested on the Sessions Judge to issue a direction to a Magistrate to commit a case to his
file. Further, u/s 408 of Code of Criminal Procedure the learned Sessions Judge has no power to withdraw any case from a Magistrate as it has
been stated by the learned Principal Sessions Judge in his remarks. Section 408 of Code of Criminal Procedure empowers a Sessions Judge only
to transfer any particular case from one criminal court to another criminal court in his Sessions Division. It does not confer any power to withdraw
any case. There is a world of difference between withdrawal and transfer of a case. Withdrawal of a case is dealt with u/s 409 of Code of Criminal
Procedure under which a Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has made over to, any
Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him. Under the said provision, only a case, which has been made over to a
Subordinate Court such as Assistant Sessions Judge or Chief Judicial Magistrate alone, can be withdrawn. Sub-section (2) of Section 409 of
Code of Criminal Procedure states that a case made over to a Additional Sessions Judge can be so withdrawn only before the trial of the case or
hearing of the appeal has commenced.
Therefore, neither u/s 408 of Code of Criminal Procedure a case can be transferred from the Court of Magistrate to the Court of Sessions for
the purpose of trial , nor a case can be withdrawn from the court of a Magistrate to the Court of Sessions for trial. A case can come up for trial
before the Court of Sessions only on being committed either u/s 209 of Code of Criminal Procedure or u/s 323 of Code of Criminal Procedure or
on committal in pursuance of an order of the High Court u/s 407 of Code of Criminal Procedure In this regard, I may refer to the Judgment of the
Hon''ble Supreme Court in Sudhir and Ors. v. State of M.P. AIR 2001 SCW 491 wherein the Hon''ble Suprreme Court had an occasion to deal
with counter cases, where, in one case some of the offences were exclusively triable by court of sessions and in the other case no offence was
exclusively triable by court of sessions. In the said case, the Hon''ble Supreme Court has referred to the law laid down in Nathilal v. State of U. P.
with approval wherein the Hon''ble Supreme Court had earlier held thus:
We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try
both cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the
Judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the
Judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate Judgments. In deciding each of the cases,
he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the
judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on
record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the Judgments
must be pronounced by the same learned Judge one after the other.
In paragraph 12 of the Judgment in Sudhir''s case cited supra, the Hon''ble Supreme Court has raised a question as to how to implement the
above scheme in a situation where one of the two cases [relating to the same incident] is charge-sheeted or complained of, involves offences or
offence exclusively triable by a Court of Sessions, but none of the offences involved in the other case is exclusively triable by the Sessions Court.
The Hon''ble Supreme Court has held thus:
...The Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section
209 of the Code. Once the said case is committed to the Sessions Court, thereafter it is governed by the provisions subsumed in Chapter XVIII of
the Code. Though, the next case cannot be committed in accordance with Section 209 of the Code, the magistrate has, nevertheless, power to
commit the case to the court of Sessions, albeit none of the offences involved therein is exclusively triable by the Sessions Court. Section 323 is
incorporated in the Code to meet similar cases also. That section reads thus:
If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing Judgment that the
case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and
thereupon the provisions of chapter XVIII shall apply to the commitment so made.
The above section does not make an inroad into Section 209 because the former is intended to cover cases to which Section 209 does not
apply. When a magistrate has committed a case on account of his legislative compulsion by Section 209, its cross case, having no offence
exclusively triable by the Sessions Court, must appear to the magistrate as one which ought to be tried by the same Court of Sessions. We have
already adverted to the sturdy reasons why it should be so. Hence the magistrate can exercise the special power conferred on him by virtue of
Section 323 of the Code when he commits the cross case also to the Court of Sessions. Commitment u/s 209 and 323 might be through two
different channels, but once they are committed their subsequent flow could only be through the stream channelised by the provisions contained in
Chapter XVIII.
Now we have to deal with the powers of the Sessions Court in the light of Section 228 of the Code which says that when the Sessions Court,
after hearing u/s 227, is of opinion that none of the offences presumed to have been committed by an accused is triable by a Court of Sessions he
is to transfer the case for trial to the Chief Judicial Magistrate.
A close reading of the above Judgment of the Hon''ble Supreme Court would make it manifestly clear that in cross cases, though in one of the
cases none of the offences is exclusively triable by a Court of Sessions still, u/s 323 of Code of Criminal Procedure a Magistrate has got a legal
duty to commit such cross case also to the court of sessions for being tried in the manner stated in Nathi Lal''s case cited supra by the Court of
Sessions.
In the other cases, like the one on hand, where the cases are not cross cases, if the Magistrate is of the view that for any grounds as stated in
Section 407(1) of Code of Criminal Procedure such cases should also be tried by a Court of Sessions, he has to submit a report to the High Court
in this regard. On considering the said report, the High Court may direct the said Magistrate to comit the said case to the Court of Sessions for
trial. After such order of the High Court u/s 407 of Code of Criminal Procedure the Magistrate can commit the case to the Court of Sessions.
In the case on hand, admittedly, none of the offences involved is exclusively triable by the Court of Sessions. Neither there was any report to
the High Court seeking an order for committing the case to the Court of Sessions nor the learned Magistrate had thought it necessary to commit
the case to the Court of Sessions u/s 323 of Code of Criminal Procedure Instead, the learned Magistrate had submitted a report to the court of
sessions in this regard. The learned Sessions Judge has simply withdrawn the case without there being a committal to the Court of Sessions. This is
a very serious procedural lapse inasmuch as the Sessions Court is precluded from taking cognizance without the case being committed as provided
under law [vide Section 193 of the Code of Criminal Procedure]. Therefore, the trial of this case conducted by the Additional Sessions Judge,
Mahila Court, Chennai, is not in tune with the established procedure.
The learned Principal Sessions Judge, in his concluding remarks has stated that there was nothing illegal on the part of the then Principal
Sessions Judge in receiving the case records from the Metropolitan Magistrate and making over the same to the Additional Sessions Court. The
learned Principal Sessions Judge has further stated in his remarks that for sending the non sessions case, committal is not necessary. This remark
submitted by the learned Principal Sessions Judge is not correct in view of the express provision contained in the Code of Criminal Procedure and
the Judgments of the Hon''ble Supreme Court referred to above.
Thus having come to the conclusion that the trial conducted by the Additional Sessions Judge, Mahila Court, Chennai, suffers from serious
procedural lapse, in view of the bar contained in Section 193 of Code of Criminal Procedure the next question which crops up for consideration is
as to whether the case is to be remitted to the learned XVII Metropolitan Magistrate for fresh trial in accordance with law.
In this regard, the learned Counsel for the Appellants has placed reliance on the Judgment of the Hon''ble Supreme Court in State of Madhya
Pradesh Vs. Bhooraji and Others, wherein the Hon''ble Supreme Court has dealt with an identical situation. Earlier while dealing with cases arising
out of Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act in Gangula Ashok and Another Vs. State of A.P., , the Hon''ble
Supreme Court has held that committal proceedings are necessary for a special court under SC & ST Act to take cognizance of the offences
arising out of the said Act. The Hon''ble Supreme Court held that a special court under the SC & ST Act being essentially a Court of Sessions can
take cognizance of offence in accordance with provisions of the Code. In other words, a complaint or charge sheet cannot be laid before the Court
of Sessions directly. That was a case where the accused approached the High Court seeking to quash the cognizance taken by the Special Court
without there being a committal order. It is needless to point out that after the said law laid down by the Hon''ble Supreme Court in Gangula
Ashok''s case cited supra, final reports are filed before the Judicial Magistrate and thereafter, the cases are committed to the Special Courts.
After the Judgment in Gangula Ashok''s case, cited supra, was delivered by the Hon''ble Supreme Court, taking advantage of the said decision
the convicted persons under the penal provisions of SC & ST Act in Bhooraji''s case approached the High Court seeking quashment of the
conviction on the ground that the trial by the Special Court was without jurisdiction for want of committal by the Magistrate. The Madhya Pradesh
High Court, relying on the Judgment of the Hon''ble Supreme Court in Gangula Ashok Case, quashed the conviction and directed the Special
Court to return the charge sheet and the connected papers to the prosecution for resubmission to the jurisdictional Magistrate for further
proceedings in accordance with law. As against the Division Bench Judgment of the Madhya Pradesh High Court, the State of Madhya Pradesh
went on appeal to the Hon''ble Supreme Court. While considering the correctness of the said view taken by the Madhya Pradesh High Court, the
Hon''ble Supreme Court had recourse to Section 465 of Code of Criminal Procedure In Bhooraji''s case cited supra, the Hon''ble Supreme Court
in paragraph 14 to 17 has held as follows:
We have to examine Section 465(1) of the Code in the above context. It is extracted below:
Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or
altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant,
proclamation, order, Judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or
irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry
were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct
repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has
occasioned a failure of justice the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
What is meant by a failure of justice occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M.
Multtani v. State of Karnataka, (2001) 2 SCC 577 thus (para 23 of AIR Cri.L.J. 1075):
We often hear about failure of justice and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too
pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice would appear, sometimes, as an
etymological chameleon [the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Dept. of the Environment (1977) 1 All E.R. 8130.
The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or
whether it is only a camouflage.
It is an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely because the specified sessions court
took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have
been committed to the special court because that court being essentially a court of sessions can take cognizance of any offence only then. But if a
specified sessions court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen
to take cognizance without a committal order, what is the disadvantage of the accused in following the said course?
In paragraph 22 and 23 of the aforesaid Judgment the Hon''ble Supreme Court has concluded as follows:
The bar against taking cognizance of certain offences or by certain courts cannot govern the question whether the Court concerned is a Court
of competent jurisdiction, e.g. Courts are debarred from taking cognizance of certain offences without sanction of certain authorities. If a Court
took cognizance of such offences, which later found to be without valid sanction, it would not become the test or standard for deciding whether
that court was a Court of competent jurisdiction. It is now well settled that if the question of sanction was not raised at the earliest opportunity the
proceedings would remain unaffected on account of want of sanction. This is another example to show that the condition precedent for taking
cognizance is not the standard to determine whether the Court concerned is a Court of competent jurisdiction.
We conclude that the trial held by the sessions court reaching the judgment impugned before the High Court in appeal was conducted by a
court of competent jurisdiction and the same cannot be erased merely on account of a procedural lapse, particularly when the same happened at a
time when the law which held the field in the State of Madhya Pradesh was governed by the decision of the Full Bench of the Madhya Pradesh
High Court (supra). The High Court should have dealt with the appeal on merits and on the basis of the evidence already on record. To facilitate
the said course we set aside the judgment of the High Court impugned in this appeal. We remit the case back to the High Court for disposal of the
appeal afresh on merits in accordance with law and subject to the observations made above.
In the case on hand also, it is needless to point out that u/s 23 of the Code of Criminal Procedure , the Court of Sessions is competent to try
any offence under Indian Penal Code. Therefore, it cannot be said that the trial held by the court of sessions is without jurisdiction. The trial in the
instant case conducted by the learned Additional Sessions Judge, Mahila Court, Chennai, without there being a committal from the Magistrate,
suffers only from a serious lapse which is essentially procedural in nature. Therefore, on this ground I am of the view that the trial held by the
Additional Sessions Judge cannot be held to be vitiated inasmuch as at the earliest opportunity the accused did not raise any objection and the
accused has also not shown any failure of justice on account of such procedural lapse as held by the Hon''ble Supreme Court.
In view of the above conclusion arrived at by me, it is imperative to appreciate the evidence to see whether the conviction of the Appellants/A1
& A2 can be sustained or not. For this, I have to state that there is no evidence in the eye of law recorded in this case. As I have already stated ,
the learned Additional Sessions Judge in the Judgment has stated that the evidence was recorded in S.C. No. 448 of 2000 and the same was
substituted in this case. Substitution of evidence recorded in the other case and consideration of the said evidence is not mere procedural
irregularity but, it is squarely an illegality offending fair trial guaranteed under Article 21 of the Constitution. As has been repeatedly held by the
Hon''ble Supreme Court, the evidence not recorded in the given case is no evidence in the eye of law. The court has to confine its consideration
only to the evidence recorded in this case and it cannot consider the evidence recorded in any other case. Since I am holding that the evidence
available on record is not evidence in the eye of law, there is no question of sustaining the conviction based on the said evidence recorded in the
other case viz., S.C. No. 448 of 2000.
Having come to the said conclusion that there is no evidence recorded in this case, in normal course, it would be appropriate only to set aside
the conviction and sentence and to remit the case back at least to the same court for recording evidence in accordance with law afresh by following
the procedure established by law. But, the learned Counsel for the Appellants would raise an objection regarding the same. According to him, the
right to speedy trial is a facet of the fundamental right guaranteed under Article 21 of the Constitution of India and the same needs to be
safeguarded. The learned Counsel would further submit that at this length of time, if retrial is ordered by this Court, it would be too difficult for the
accused to defend which would infringe the right to speedy trial guaranteed under Article 21 of the Constitution. In this regard, I may refer to
Kartar Singh Vs. State of Punjab, wherein the Hon''ble Supreme Court in paragraph 85 has held as follows:
The right to a speedy trial is not only an important safeguard to prevent undue and oppressive incarceration, to minimize anxiety and concern
accompanying the accusation and to limit the possibility of impairing the ability of an accused to defend himself but also there is a societal interest in
providing a speedy trial. This right has been actuated in the recent past and the courts have laid down a series of decisions opening up new vistas
of fundamental rights. In fact, lot of cases are coming before the courts for quashing of proceedings on the ground of inordinate and undue delay
stating that the invocation of this right even need not await formal indictment or charge.
In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, the Hon''ble Supreme Court has held as follows:
No procedure which does not ensure a reasonably quick trial can be regarded as ''reasonable, fair or just'' and it would fall foul of Article 21.
There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a
person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in
violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on
the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right
under Article 21.
Referring to the above Judgments in Moti Lal Saraf Vs. State of Jammu and Kashmir and Another, , the Hon''ble Supreme Court has held as
follows:
This Court in a number of cases has reiterated that speedy trial is one of the facets of the fundamental right to life and liberty enshrined in
Article 21 and the law must ensure ""reasonable. Justice and fair"" procedure which has a creative connotation after the decision of this Court in
Maneka Gandhi case.
The Hon''ble Supreme Court [Moti Lal Saraf case] in paragraph 50 to 53 of the said Judgment has held as follows:
It is the bounden duty of the court and the prosecution to prevent unreasonable delay.
The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the courts and on the prosecution an
obligation to proceed with reasonable dispatch.
In order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Governments and all
concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of a speedy trial does not
remain only on paper or is a mere formality.
In the instant case not a single witness has been examined by the prosecution in the last twenty-six years without there being any lapse on
behalf of the Appellant. Permitting the State to continue with the prosecution and trial any further would be total abuse of the process of law.
Consequently, the criminal proceedings are quashed. The appeal is accordingly allowed and disposed of.
In Mahendra Lal Das Vs. State of Bihar and Others, while dealing with the question of delay in trial, the Hon''ble Supreme Court in paragraph
5 has held as follows:
...The speedy trial was considered also in public interest as it serves the social interest also. It is in the interest of all concerned that guilt or
innocence of the accused is determined as quickly as possible in the circumstances. The right to speedy trial encompasses all the stages, namely,
stage of investigation, enquiry, trial, appeal, revision and re-trial. While determining the alleged delay, the court has to decide each case on its facts
having regard to all attending circumstances including nature of offence, number of accused and witnesses, the work-load of the court concerned,
prevailing local conditions, etc. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the
totality of the circumstances and the general conspectus of the case. Inordinate long delay can be taken as a preventive proof of prejudice.
Having regard to the right guaranteed under Article 21 of the Constitution which is one of the most cherished fundamental rights under the
Constitution of India and keeping in mind the principles stated by the Hon''ble Supreme Court in the above Judgments, if we analyse the facts of
the present case, in my considered opinion , it would not be in the interest of justice to remit the case for retrial, for P.W.1, who is the sole witness,
on whose evidence the prosecution depends upon, has turned hostile when she was recalled later on disowning her evidence let in by way of chief
examination at the first instance. It is found in the records that P.W.1 has married P.W.6 and has settled down in her life. As it is pointed out by the
learned Counsel, since she has already disowned the allegations made by her in the chief examination, even if the case is remitted back at this stage
and she is examined, the prosecution cannot expect her to depose to substantiate the charges. Assuming that she now changes her mind and
deposes against the accused, since her earlier evidence can be used to contradict her, there would be no purpose served. In these circumstances,
remitting the case for re-trial will only add to the work load of the trial court and result in utter wastage of precious time of the court. In such
circumstances, I deem it not necessary to remit the case for retrial. In view of the above, the accused are entitled for acquittal and accordingly the
appeals deserve to be allowed.
To sum up the legal issues involved in the case:
(i) No Court of Sessions shall take cognizance of any offence unless the case has been committed to it by the jurisdictional Magistrate.
(ii) The Court of Sessions has no power to direct a Magistrate to commit any case to his file nor can a Court of Sessions withdraw a case from a
Magistrate to his file.
(iii) If any of the offences in a given case is exclusively triable by a Court of Sessions then, the legal duty of the Magistrate is to commit the case to
the Court of Sessions for trial as provided in Section 209 of Code of Criminal Procedure
(iv) In cross cases, where one of the cases involves offences exclusively triable by a Court of Sessions and in the other case none of the offence is
exclusively triable by a Court of Sessions, then, as provided in Section 323 of Code of Criminal Procedure the jurisdictional Magistrate should
commit both the cases for trial to the Court of Sessions.
(v) On such committal of cross cases arising out of the same occurrence, the Sessions Court shall scrupulously follow the procedure laid down by
the Hon''ble Supreme Court in Nathilal v. State of U. P. .
(vi) In any other case involving offences which are not exclusively triable by a Court of Sessions and if it appears to the jurisdictional Magistrate
that for any of the grounds enumerated u/s 407(1) of Code of Criminal Procedure that the case needs to be tried by a Court of Sessions, the
learned Magistrate shall submit a report to the High Court and on such report the High Court may order for committal of such case to the Court of
Sessions for trial and thereupon on committal, the Sessions Court shall try the same as per Chapter XVIII of the Code of Criminal Procedure.
(vii) In any event, the trial court shall not record common evidence or substitute the evidence recorded in one case as evidence in the other case
and shall not consider the evidence recorded in one case in the other case.
(viii) In no case, the trial court shall deliver a common Judgment in two or more cases [vide Nathi Lal''s case cited supra].
(ix) In respect of the cases where trial has not already commenced before the Court of Sessions without the case being committed, the accused
shall be at liberty to raise objection at the earliest opportunity or else, the court shall follow the dictum laid down in State of Madhya Pradesh Vs.
Bhooraji and Others,
(x) In respect of cross cases, for each case there has to be a separate public prosecutor to conduct the prosecution.
Before parting with this Judgment, I wish to state my anguish that the mother, who is above the God Almighty for a daughter, the supposed
protector of the modesty of her daughter in her teens, is alleged to have attempted to push her into flesh trade out of greed for money. If the
allegations are true and the same are proved, I am sure, the accused would visit with stringent punishment. But, this Court is impelled to acquit the
accused with pains because of the serious lapses and substantive illegalities committed by the courts below.
In the result, the criminal appeals are allowed; the conviction and sentence imposed on the Appellant in Crl. A. No. 263 of 2011 and the
Appellant in Crl. A. No. 57 of 2004 by the trial court are set aside; the Appellants are acquitted of the charge. Fine, if any, paid by the Appellants
shall be refunded to them. The bail bonds executed by the Appellants shall stand discharged.