Lalkhan alias Gnanaprakasam and Others vs Inspector of Police, Q Branch, Villppuram Town

M.N. Moorthy, J.—This is a petition filed under S. 482, Crl. P.C. to quash the order passed by the learned Assistant Sessions Judge.

Tindivanam in Crl. M. P. No. 20 of 1982 in S.C. 65 of 1982.

The Inspector of Police, Villupuram town, filed a charge sheet in Crime No. 215 of 1981 against the petitioners herein for offences under S.

153(A), 147, 148, 323. 427, 506(2) and 307, I.P.C., alleging that on 22nd June, 1981, when the Superintendent of Police, South Arcot,

instructed the Inspector of Police to conduct a raid with a police party at Sorappur and Veeranam Harijan colonies to search for the naxalite

leaders A.K. Kothandaraman and others, the petitioners and others, while the raid was being conducted, pelted stones at the police party and they

were also at that time armed with deadly weapons. The petitioners are alleged to have raised alarms and instigated the mob at the place of

occurrence to kill the police officials and as a result damage was caused to the police vehicles and some constables sustained minor injuries.

The petitioners filed a petition before the learned Assistant Sessions Judge in Cr. M. P. 20 of 1982, stating the police had seized about 25

books for which a mahazar was prepared in the police station, as the witnesses admit and their signatures were obtained there by force. They

submitted, the books seized were not in any way connected with the so called naxalite principles and there is nothing in law preventing the

petitioners from reading such books. It was further submitted that there is no warrant of arrest or proclamation for the police to conduct any raid in

the villages of Sorappur and Veeranam to arrest the naxalite leaders. They contended they were captives in the hands of the police and they were

physically immobilised at the time of the incident to commit any overt acts as alleged against them. Even on the allegations, there is no specific act

alleged against the petitioners excepting there was a general investigation. All the materials available including the statements recorded under S.

161, Cr. P. C, they pleaded, would not implicate the petitioners in any of the offences alleged. Even if the entire allegations in the F.I.R. are

admitted, there is no case made out against them.

On the said petition of the petitioners, the learned Assistant Sessions Judge held there was no offence made out under S. 307, I.P.C., and

framed charges for offences under Ss. 147, 148, 153-A, 323, 427 and 506(2), I.P.C. He rejected the petition of the petitioners on the ground that

the evidence has to be recorded and only thereafter the court has to consider whether the accused have committed any offence with which they

were charged. Hence, there is no question of discharge at that stage. He was of the view that this was a raid to curb the naxalite activities and it

was unsafe to discharge the accused, taking into consideration the damages caused to the police vehicles and injuries sustained by the police

constables. At the stage of S. 227, Crl. P. C, the court has to find out whether there is sufficient ground for proceeding against the accused. If the

materials produced before the court are sufficient to constitute an offence, the court has to frame charges. The court has to take into effect the

totality of the materials and the documents produced before it, without going into the infirmities in the case.

Assailing the order of the learned Assistant Sessions Judge Mr. R. Sankarasubbu contended on behalf of the petitioners, that they are

respectable people and they are not likely to be involved in the allegations made against them. The 5th petitioner for instance, is a graduate and is a

Central Government employee. Even on the allegations, on 22nd June, 1981, at Sorappur, in the backyard of the first petitioner''s house, the first

and second petitioners were found discussing about naxalite activities with books. When they were questioned, it is alleged they took to their heels

and they were chased and over-powered. Some of them raised alarms and instigated the mob to kill the police officials and as a result, damage

was caused to police vehicles and some police constables also sustained minor injuries. The learned counsel took exception to the order of the

learned Assistant Sessions Judge, remarking that this was a case of naxalite activities and it was unsafe to discharge the accused. He submitted

every case has to to be judged in its correct perspective without being influenced by extraneous considerations whether the persons accused

belong to some party or other or hold certain political convictions.

He relied on the decision reported in Karunakaran Jabamani Nadar, In re, 1974 L.W. Crl. 198 where K.N. Mudaliyar, J. observed

India is a land of freedom under law. Even the crimes of Naxalites must be legally proved before the courts of law. We cannot treat or equate

Naxalites as hardened criminals and hang them on the merest production of flimsy and fabricated evidence.

The learned counsel vehemently contended, taking all the materials available including the statements given under S. 161, Crl.P.C. by the witnesses

examined by the Investigating officer into consideration, there is no case made out against the petitioner. Even if the entire allegations in the F.I.R.

are admitted and the statements are true in toto, it cannot be said there is a case to go before the court against the petitioners. In support of his

contention, the learned counsel relied on the decision in Union of India v. Prafulla Kumar Samal 1979 L.W. (Crl.) 86. In that decision, an

observation made in the case reported in K.P. Raghavan and Another Vs. M.H. Abbas and Another, is extracted and it runs as follows :

No doubt a Magistrate enquiring into a case under S. 209, Crl. P.C. is not to act as a mere post office and has to come to a conclusion whether

the case before him is fit for commitment of the accused to the court of Session.

In the same judgment, there is an extract from the decision reported in Almohan Das and Others Vs. State of West Bengal, , which is as under :

A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but

only for seeing whether there is sufficient evidence for commitment and not whether there is sufficient evidence for conviction. If there is prima facie

evidence is totally unworthy of credit, it is his duty to discharge the accused.

The learned judges after considering the authorities referred to above, laid the following principles among others

...the Judge while considering the question of framing the charges under S. 227 of the Code has the undoubted power to sift and weigh the

evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

The learned counsel then relied on the decision in Mohan Lal and Others Vs. The State of U.P. and Others, . This is a case like the one On

hand where the offences were committed in a crowd. In that decision, the learned Judge observed as follows :

If any member of such a crowd had indulged in any act of arson or violence, it cannot, from such an individual act be presumed that it was either

the common object of the crowd or that every member of that crowd had necessarily shared the object of that individual who had committed the

act. The acts of only a few individuals of such crowd cannot be held to be the common object of the crowd nor every member of that crowd can

be presumed to have shared the object with which such acts were committed by only a few members of that crowd. The mere presence of the

accused persons in that crowd would not, therefore, make them responsible for any act of damage, violence or arson committed by any member

of that crowd.

In the instant case, it was contended when the persons are in the custody of the police, they could not have shared the object with the others if

some offences were committed by some members of the crowd.

The learned counsel finally relied on a decision of mine in Mohd. Zakir Vs. Delhi Administration and Others, where I had quashed the

prosecution pending against the petitioners on the ground that it was groundless and vexatious.

The learned Public Prosecutor relying on a decision reported in P. Narayana v. Public Prosecutor ( 1982 M.L.J. (Crl.) 322 , contended the

court need not see at the time of framing the charges whether the evidence was sufficient to warrant a conviction. The standard of test and

judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused, is not exactly to be applied at the

stage of deciding the matter under S. 227 or S. 228, Crl. P. C. However, he drew my attention to the F.I.R. filed in the present case. According to

it, when the police party raided at Sorappur the house of the first petitioner, who was said to be a close associate of the Extremist leader, A.K.

Kothandaraman, he along with the second petitioner was found discussing about naxalite activities with some books, When questioned about A.K.

Kothandaraman, the two petitioners ran out leaving the books at the place and made an alarm shouting to attack the police party. By then a mob

of 150 persons had gathered and the first petitioner shouted to attack the police and kill them. Then pelting of stones began and some constables

were injured and police vehicles were damaged. The learned Public prosecutor was fair enough to bring to my notice that there is substantial force

in the contention raised by the learned counsel for petitioners that as far as petitioners 3, 4 and 5 are concerned, on the F.I.R. the case against

them could be viewed favourably.

I agree with the learned Public Prosecutor that this is not a case where petitioners 3 to 5 have to undergo a trial, I quash the proceedings

pending against petitioners 3 to 5 and allow their petition. As far as the first petitioner Lalkhan alias Gnanaprakasam and the second petitioner

Chandrasekharan are concerned there, is material against them to face proceedings in a court of law, and their petition stands dismissed.

In the result, the petition of petitioners 3 to 5 is allowed and the petition of petitioners 1 and 2 is dismissed.