Govindaraj vs State

S.M. Ali Mohamed, J.—This petition u/s 482, Code of Criminal Procedure is to call for the records in S.C. No. 159 of 1992 on the file of Assistant Principal Sessions Judge, South Arcot District at Cuddalore and quash the same.

The Petitioner is charged for offences, u/s 4(1-A) read with Section 4(1)(a) (Transportation and Possession) 4(1)(i), 5, 7 and 12 of the Tamil Nadu Prohibition Act. A1 to A10, are charged under Ss.4(1-A) read with 4(1)(a) (Transport and Possession), 5, 7 and 12 of the Tamil Nadu Prohibition Act. Petitioner Govindaraj is A8. It is alleged that somewhere in the month of August 1958, the first accused and the 6th accused alongwith other accused 1 to 4 and 7 to 11 and one Kathavarayan, son of Perumal and Sahadevan, son of Kaliyavaratha Gounder, both are since dead, entered into a conspiracy at Panruti whereby A6 to All agreed to supply illicit liquor to A1 to A5 for the purpose of sale in Thattanchavady in Panruti and commit such other connected offences punishable under the provisions of Tamil Nadu Prohibition Act and in furtherance of such conspiracy and with intent to carry on the illicit trade in spurious liquor in Panruti from the year 1988, A6 to A11 supplied by way of sale of illicit liquor from time to time from their licensed shop in Pulladai.

It is alleged that due to the consumption of the illicit arrack which contained poisonous substance, 36 persons died and the individuals given in the list-2 of the charge, sustained grievous hurt by losing their eye-sight and the individuals given in the list-3, sustained simple hurt.

The learned Counsel for the Petitioner contended that since the Petitioner was set at liberty after his detention under Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders, Forest Offenders and Slum-Grabbers Act 1982 (Act 14 of 1982), it was not open for the Respondent to initiate prosecution against the Petitioner as per the charge memo in S.C. No. 159 of 1992, upon the same facts. The findings of Advisory Board, is binding on the prosecution agency and no punitive action under Tamil Nadu Prohibition Act or Penal Code ought to be taken against the Petitioner herein. He also contended that there is mistake in identity of the Petitioner herein.

The Petitioner submits that the Sessions Judge ought to have considered the findings of Advisory Board before framing any charges against the Petitioner.

On the other hand, learned Public Prosecutor submitted that the above contentions of the counsel for Petitioner are not sustainable in law. There is a marked difference between preventive detention and prosecution under punitive law. Just because the Petitioner was detained under Act 14 of 1982 and later on set at liberty, there is no bar for the prosecution agencies to prosecute the Petitioner herein for violation of punitive law. It is further submitted that the learned Assistant Sessions Judge, has only to consider the documents filed by the prosecution agency under S. 173(5) of the Code of Criminal Procedure and he is not bound to look in to any other documents not forwarded to the Court, u/s 173 Code of Criminal Procedure In support of the above contention, the learned Public Prosecutor cited the rulings reported in J.P. Sharma Vs. Vinod Kumar Jain and Others, State of Bihar and Another Vs. P.P. Sharma, IAS and Another, . Angusami v. Kaleeswaran Ambalam ( 1989 L.W.(Crl.) 108) and Muthuraman v. State by Sub-Inspector of Police, Crime Branch, Madras (1991 L.W.(Crl.) 223). On the authority of the above rulings, the learned Public Prosecutor submitted that before framing the charges, the learned Assistant Sessions Judge ought to consider only the material documents filed u/s 173 Code of Criminal Procedure and apply his mind and satisfy on the said materials, whether any cognizable offence has been committed by the accused and frame charges accordingly. He further submitted that at this stage, the learned Judge is not bound to look into any other document even if summoned and placed before the court by the accused. He denied the contention of the counsel for the Petitioner that there is a mistake of identity as far as the Petitioner herein, Govindaraj A8, is concerned. Witness No. 265-Kumar, has stated that A6 to A8 were running the business. He further submitted that the charges against the Petitioner and the other accused are serious one. Thirty six persons died by consuming illicit liquor. Six persons had grievous injuries and 152 persons had other injuries and it is not a fit case or this Court to quash the proceedings u/s 482 , Cr.P.C.

The first contention of the counsel for the Petitioner is that once the Petitioner was set at liberty under Act 14 of 1982, he cannot once again be prosecuted under punitive law. He cited the following ruling of the Apex Court, in support of his contention.

In the ruling reported in But Nath MCE v. The State of West Bengal (1974 S.C.C. (Crl.) 300), it is held as follows:

The question is whether for the reason that criminal prosecutions have failed the detention order is bad. We think not, and there is authority for it.

In Subvati v. State of West Bengal, this Court rejected on identical argument, the purposes of preventive detention being different from conviction and punishment and subjective satisfaction being enough in the former while proof beyond reasonable doubt being necessary in the later (at page 254, para 3):

The Act creates in the authorities concerned a new jurisdiction to make orders for preventive detention on their subjective satisfaction on grounds of suspicion of commission in future of acts prejudicial to the community in general. This jurisdiction is different from that of judicial trial in Courts for offences and of judicial orders for prevention of offences. Even unsuccessful judicial trial or proceeding would, therefore, not operate as a bar to a detention order, to render it mala fide. The matter is also not res integra:

In Colam Hussain alias Oma v. The Commissioner of Police, Calcutta and Ors. (1974 S.C.C.(Crl.) 566), it is held as follows:

It is not denied that the Petitioner's name was not in the First Information Report, but he was apprehended later on the basis of evidence gathered during the investigation of the criminal case. The commissioner admits that the detenu was discharged by the Court as no witness dared to depose against the detenu in open Court. According to him, the said order of discharge was made on the prayer of the police on July 19, 1973, and thereafter, the Petitioner was preventively detained. Could such an order be castigated as a mala fide and oblique resort to the inscrutable order of detention when the prospects became bleak? This charge has been repudiated by the Commissioner on oath and we are not able to hold with the Petitioner that merely because the Detaining Authority has chosen to pass the order on the discharge of the Petitioner by the court for want of evidence, the order is bad in law. The branch of jurisprudence bearing on prohibitory detention has been crystalised by now and it is no longer a valid contention that because the accused has been discharged in a criminal case the ground of charge cannot be relied upon by the appropriate authority for passing an order of detention. The former relates to the punitive branch of the criminal law and relates to the past commission, the latter to the preventive branch of social defence and protects the community from future injury. Whether we like it or not, this branch of jurisprudence, as interpreted by this Court, has made it futile for a detenu to urge that because the grounds of detention have been the subject matter of criminal cases which have ended in discharge, therefore the order of detention is mala fide. The basic impressive of proof beyond reasonable doubt does not apply to the "subjective satisfaction" component of imprisonment for reasons of internal security.

In Noor Chand Sheiah v. The Stale of West Bengal (1974 S.C.C. (Crl.) 914), it is held as follows:

It is an established rule that an unsuccessful judicial trial or proceeding would not operate as a bar to a detention order to make it mala fide. It cannot be said that the discharge was entirely irrelevant and of no significance it is a circumstance which the Detaining Authority cannot altogether disregard.

In Sadhu Roy v. The State of West Bengal (1975 Crl.L.J. 784), it is held as follows:

The discharge or acquittal by a criminal court is not necessarily a bar to preventive detention on the same facts for security purposes. But, if such discharge or acquittal proceeds on the footing that the charge is false or baseless, preventive detention on the same condemned facts may be vulnerable on the ground that the power under the MISA has been exercised in a mala fide or colourable manner.

The above rulings of the Apex Court in no way support the contention of the Petitioner to the effect that no punitive prosecution should be taken against the Petitioner, just because, he was set to liberty under Act 14 of 1982. On the other hand, the Apex Court in the above ruling has held that there is no bar for preventive detention just because the detenu was acquitted or discharged under punitive law. The Apex Court has held that the branch of jurisprudence bearing on punitive prosecution, is different from preventive detention. The former relates to punitive branch of criminal law and relates to the past commission of offences. The latter to the preventive branch of social defence and protects the community from future injury. Therefore, just because the Petitioner was prevented from committing future offences and detained under Act 14 of 1982 and later set at liberty, does not absolve the alleged past commission of offences under punitive law, of course subject to prosecution proving the offence beyond reasonable doubt. The object of preventive detention is to prevent a person from committing an offence whereas the object of punitive law is to punish a person who has committed an offence. As such, just because the Petitioner detained under preventive law, it is not a bar for the prosecuting agency to prosecute the Petitioner for violation of any other law. Therefore, I reject the contention of the learned Counsel for the Petitioner as untenable and unsustainable in law. I am of the view that there is no bar for prosecuting agency to institute criminal proceedings under punitive law, even if the Petitioner is set at liberty under Act 14 of 1982.

Regarding the second contention of the learned Counsel for the Petitioner to the effect that the learned Assistant Sessions Judge ought to look into the report of the Advisory Board made under Act 14 of 1982 before framing charges, he has not cited any rulings and the same is untenable.

On the other hand, the ruling cited by the learned Public Prosecutor, are clear with regard to the legal aspect in this matter, and the same has been summarised by Ratnavel Pandian, J., (as he then was) in the case reported in Angusami v. Kaleeswaran Ambalam (1989 L.W. (Crl.) 108) to the following effect:

The views expressed in the above decisions can be summarised thus: The state of Section 239 of the Code prior to the framing of the charge u/s 240 of the Code, is not expected to be a dress rehearsal of a trial. The Magistrate at that stage is required to consider the police report and the documents sent along with it u/s 173 which are furnished to the accused in compliance with Section 207 of the Code and the explanation given by the accused during his examination and the submission, if any, made by the prosecution and the accused for finding out whether the charge, which means the accusation, levelled against the accused is groundless. At that stage, as rightly pointed out by the learned single Judge of the Delhi High Court in Surinder Kumar Yadav's Case it is not open to the Magistrate to consider any other document, which is not covered by the provisions of Section 207 of the Code, and the examination of the accused, if any, under that provision must necessarily be with regard to the material placed by the prosecution against him and the documents referred to under S. 207 Code of Criminal Procedure but the documents produced by the accused are not to be taken into consideration by the Magistrate while applying his mind whether the acquisition levelled against the accused is groundless or not. I am fortified in my view by the judgment of the Supreme Court, reported in J.P. Sharma v. Vinod Kumar Jain (AIR 1986 S.C. 33).

The Supreme Court while examining the legality of the order of the High Court has stated:

The question at this stage is not whether there was any truth in the allegations made but the question in whether on the basis of the allegations, a cognizable offence or offences had been alleged to have been committed. The facts subsequently found out to prove the truth or otherwise of the allegation is not a ground on the basis of which the complaint can be quashed.......

On the principles laid down by the Supreme Court in J.P. Sharma's case cited supra, at the stage of Section 239, Code of Criminal Procedure there is no question of adding or subtracting anything or considering any extraneous matter other than the documents forwarded to the court as contemplated u/s 173, Code of Criminal Procedure and furnished to the accused u/s 207, Cr.P.C, besides examining the accused and affording an opportunity both to the prosecution and the accused or being heard.

Arunachalam, J. has reiterated and followed the above ruling in the case reported in Muthuraman v. State by Sub Inspector of Police, Crime Branch, Madras (1991 L.W.Cri 223).

Therefore, I am of the view that at the stage of framing charges, the learned trial Judge has only to look into the materials supplied by the prosecution agencies, u/s 173, Cr.P.C, and satisfy himself whether any cognizable offence is committed by the accused and frame charges accordingly and he is not bound to look into any other document, even if summoned by the accused and placed before the court. Therefore, I reject the contentions of the learned Counsel for the Petitioner on this point.

The Petitioner has filed two affidavits before this Court to the effect that he is not the accused in the case and one T. Govindaraj, son of Thangavelu, residing at Karaiyamputhu, is the accused. The learned Public Prosecutor objects to the filing of affidavit and states that under Criminal Procedure Code, affidavits can be filed u/s 295 of Code of Criminal Procedure and the affidavit cannot be admitted where evidence is not of a formal character, but goes to the root of the matter. There is substance in the contention of the learned Public Prosecutor with regard to the affidavits filed by the Petitioner at this stage. With regard to the contention of the counsel for the Petitioner, regarding mistaken identity of the Petitioner-Govindarai, witness No. 265- one Kumar was examined by the Investigating Agency. The Said Kumar has stated that the transported Rectified Spirit, twice in his tyre cart at the request of A6 to A10 and one N.S. Mani and accused got into cart and came along. The said Kumar in his statement has categorically referred to Govindaraj. However, it is open to the Petitioner to urged before the trial court, his contention that he is not the accused Govindaraj. In view of the above, the petition is dismissed.