K. Dhanasekaran vs The Inspector of Police, Erode Town Police Station, Erode

S.M. Ali Mohamed, J.—The petition is filed u/s 482, Code of Criminal Procedure to call for the records relating to C.C. No. 217 of 1992 on the file of the Judicial Magistrate No. III, Erode and to quash the same.

It is alleged in the petition that there are three accused before the trial court. The Petitioner herein is the third accused. It is stated that Accused 1 and 2 are citizens of Srilanka. It is alleged that accused 1 and 2 purchased 10000 mts. of Kakhi cotton cloths and Anr. 10000 mts. of teri cotton Khaki cloths from one Kanagasabapathy Mudalier and on 14.11.1990 they purchased a Maruti Gypsy Jeep from Union Motors Service Private Ltd., Trichy through the accused Petitioner herein in the name of witness K. Prakash. Both the accused 1 and 2 are citizens of Sri Lanka and A-1 is permanent resident of Pattina Salai, Jafna Srilanka and A 2 permanent resident of IInd street, Manipal, Jafna, Srilanka. They are the active members of the LTTE of Sri Lanka Militants. Both the accused frequently used to come over to India to purchase cloths and petroleum products for the LTTE militants at Jafna without a valid passport and visa, on 29.1. 1991 at about 5:30 p.m. near clock tower, within Erode Town Police Station limits Accused 1 and 2 were in the Maruti Gypsy Jeep were questioned by the Inspector of Police, Thiru. Palaniswamy on suspicion, A-1 assaulted by pushing the Inspector Thiru. Palaniswamy, a public servant and obstructed him from discharging his official duty and both the accused ran away. The said Inspector of Police chased and arrested them. A-1 was in possession of a cyanide capsule, a bag containing Rs. 8,800/-, and a cash receipt for Rs. 5,50,000/-. Both the accused have no valid passport and they have failed to produce their pass port and travel documents, when demanded by the Inspector of Police, Both the accused (foreigners) have entered into India and remained in India without valid travel documents. There by A-1 Rajan, appears to have committed offence punishable u/s 353(1) I.P.C 12(1) (c) of Indian Passport Act, 3(i) (a) (b) of Foreigners Order, Section 14 of Foreigners Act and A-2 Sakthi appears to have committed offences punishable u/s 12(i)(c) of Indian Passport Act, 3(i)(a)(b) of Foreigners Order and Section 14 of Foreigners Act. During the course of the same transaction of third accused K. Dhanasekaran, son of Kandasamy has forged the signatures of one Prakash of Erode, on 14.11.1990 at Salem in the order letter for the purchase of Maruthi Gypsy van and in the delivery receipt for the abovesaid Gypsy van and taken the delivery Gypsy van (movable property). As far as A-3 is concerned, it is alleged that during the course of the said transaction A-3 appears to have committed offences punishable under Ss.467 and 468 of I.P.C.

It is submitted by the learned Counsel for the Petitioner/third accused that the offences under Ss. 467 and 468, I.P.C. are alleged to have been committed by the Petitioner/third accused at Salem, and no part of the offence was committed within the jurisdiction of Judicial Magistrate No. III, Erode and as such the prosecution against the Petitioner/third accused is without jurisdiction and the same ought to be quashed.

Notice was issued to the learned Public Prosecutor and the learned Public Prosecutor was heard in the matter.

Learned Public Prosecutor submits that no doubt, the offence charged against the third accused has not taken place within the jurisdiction of the trial court, namely Judicial Magistrate No. III, Erode but as per Section 460 of Criminal Procedure Code, there is no irregularity if the Magistrate not empowered by law does anything in good faith viz., to take cognizance of offence Cl.(a) or Cl.(b) of sub-S.(i) of Section 190 Criminal Procedure Code. There is substance in the contention of the learned Public Prosecutor. In the case of Purshottam Jethanand Vs. The State of Kutch, , the Supreme Court held that

Where a Magistrate of the I class though not empowered to do so, takes in good faith cognizance of an offence u/s 190(1)(a) and (b) the defeat in the absence of any prejudice to the accused is cured by Section 529 Crl. P.C. corresponding to Section 460 of Code of Criminal Procedure, 1973.

Both the counsel for the Petitioner and the Respondent submitted that there is no specific provisions in the Code of Criminal Procedure to split up a case and transfer the same to the Court having jurisdiction. However, both the counsel for the Petitioner/third accused and the learned Public Prosecutor submitted that under inherent power of this Court given u/s 482, Criminal Procedure Code, the case of the Petitioner/third accused can be split up and transferred to the court of Chief Judicial Magistrate, Salem from the court of Judicial Magistrate No. III Erode.

In view of the peculiar facts and circumstances of the case, the ends of justice would be served if the case of the Petitioner/third accused is split up and transferred to the court of Chief Judicial Magistrate, Salem.

I am therefore of the view that it is a fit case for this Court to exercise its inherent power u/s 482, Code of Criminal Procedure and issue necessary directions to the trial court to split up the case of Petitioner/third accused from the case of first and second accused and transfer the case of the Petitioner/third accused to the court of Chief Judicial Magistrate, Salem. Accordingly, the learned Judicial Magistrate, No. III, Erode is directed to split up the case of the Petitioner/third accused from the case of the accused 1 and 2 in C.C. No. 217 of 1992 and give a separate number and transfer the case to the file of Chief Judicial Magistrate, Salem for trial in accordance with law.

With the above observations and directions this petition is dismissed.