Ponnuchamy, Inspector of Police, Trichy Airport vs Suyambanandam

Arunachalam, J.—The Petitioner is the fifth accused in P.R.C. No. 8 of 1986 on the file of the Judicial Magistrate, Nanguneri. He is being

prosecuted along with four others on a private complaint instituted by the Respondent for alleged offences u/s 120B, 302, 390 and 506(II) I.P.C.

The facts leading to the prosecution can now be summarised. On 9-10-1985, the Petitioner was the Inspector of Police at Thisayanvilai and one

A.M. Subbaraj was the Sub-Inspector of Police at the Uvari police station, which was under the jurisdiction of the Petitioner. In respect of the

suspicious death of one Ramasamy Nadar, Chidambaranathan, the brother of the said Ramasamy Nadar, preferred a complaint, at 5 p.m. on 9-

10-1985 before the Uvari police station, which was registered as Crime No. 145 of 1985 by the Sub-Inspector of Police, u/s 174 Code of

Criminal Procedure It appears that the Petitioner took up investigation later in the evening and also prepared a seizure mahazar at 6 p.m. at the

scene. Thereafter, on the next day, the Executive Magistrate, Radhapuram, conducted an inquest and the Panchayatdars unanimously gave their

verdict that the deceased Ramasamy Nadar had been murdered by his son Suyambanandam and others in pursuance of a conspiracy hatched by

them. Thereafter, the Petitioner, on completion of the investigation obtained opinion from the Public Prosecutor, and filed the charge-sheet before

the J.S.C.M., Nanguneri against nine persons, of whom the first accused is the son of the deceased and the last accused is the son-in-law of the

deceased.

The motive for the murder appears to be that the deceased Ramasamy Nadar, who was a rich person, having earned substantial properties as

his self-acquisitions, had illicit intimacy with one Sulochana who was initially his servant-maid before she was taken as a concubine.

Suyambanandam, A-1 in Crime No. 145/85, did not relish the attitude of his father and with an eye on the property of the deceased, had filed

O.S. No. 122 of 1985 on the file of the Sub Court, Tirunelveli, praying for partition. It is the prosecution case that Suyambanandam apprehended

that his father, the deceased, might alienate the property in favour of Sulochana, and that was the motive for hatching a conspiracy to get rid of

Ramasamy Nadar.

The occurrence appears to have taken place between 7:30 p.m. and 10 p.m. on 8-10-1985. The concealing of the offence appears to have

been done soon thereafter, by burying the body in a pit with sand and thorns. In the process of the burial, the accused are alleged to have removed

the gold ring and wrist watch worn by the deceased Ramasamy Nadar. In the charge-sheet filed in Crime No. 145/85, twenty-six witnesses have

been cited. It is stated that, after committal, the case arising out of Crime No. 145/85 is ending trial in S.C. No. 37 of 1987 on the file of the Court

of Sessions, Thirunelveli. While so, on 5-2-1986, this private complaint was instituted by first accused in Crime No. 145 of 1985 against the

Petitioner and four others, which has resulted in P.R.C. No. 8 of 1986, which proceedings are sought to be quashed by the Petitioner, as far as he

is concerned.

Mr. M. Karpagavinayagam, learned Counsel for the Petitioner, has placed before me two contentions:-

(i) The entire averments in the complaint relate to two different instances, which have occurred on two different dates, both of which could not be

clubbed in one complaint, and hence misjoinder of persons as well as offences are patent.

(ii) The averments made in the complaint disclose certain offences, alleged to have been committed in or in relation to a proceeding in court, which

the trial court cannot take congnizance of on a private complaint by the Respondent, since the complaint, if any, must be in writing by the Court, or

some other superior Court. Circumvention of the provisions of Section 195 Code of Criminal Procedure cannot be permitted.

To appreciate the contentions of the learned Counsel for the Petitioner, it is necessary to look into the averments made in the complaint as far as

the Petitioner is concerned. The murder and concealing of the evidence has taken place on 8-10-1985 during night time. The averment in the

complaint is that at or about 10:30 a.m on 9-10-1985, one Rajagopal, cited as P.W.2 in the charge-sheet, went to the Uvari police station and

narrated to Subbaraj, the Sub-Inspector, the incident which had occurred the earlier night when accused I to 3 in the private complaint had taken

the deceased by tying his legs. It appears from the complaint that he also narrated to the Sub-Inspector of Police that accused 1 to 3 in the private

complaint threatened him then that he would also be done to death if he divulged what he had seen. It is stated in the private complaint that the

Sub-Inspecter of Police directed Rajagopal to wait for the arrival of the Petitioner and at or about 12 noon, the Petitioner reached the Uvari police

station. It appears that Rajagopal informed the Petitioner about what he had seen and wanted him to take action in the matter. At or about that

time, it is stated in the complaint that accused 1 to 3 in the private complaint entered the police station and had a private conversation with the

Petitioner, resulting in the Petitioner criminally intimidating the said Rajagopal that in the event of his divulging his having seen the occurrence, or his

having approached the authorities to set the law in motion, death or grievous hurt would be the consequence. It appears that Rajagopal then left for

Coimbatore. These are the allegations made against the Petitioner.

From the above, it is clear that the Petitioner is not sought to be implicated either with the conspiracy or the offence of murder or concealing the

evidence of murder. The only allegation against him, even if all the averments in the complaint are taken at their face value, will disclose an offence

u/s 506(II) I.P.C., alone. Obviously, this offence has not been committed either during the murder as such or while the offence of murder was

sought to be concealed. This is an independent offence which had taken place at the police station, a day later to the actual occurrence. Though

allegations have been made against the other accused in the private complaint regarding conspiracy to murder and conspiracy to conceal the

evidence, no such averments are made as far as the Petitioner is concerned. It is only in this background, the learned Counsel for the Petitioner

contends that there has been misjoinder of the persons and the offences in this private complaint.

Countering the arguments of the learned Counsel for the Petitioner, Mr. I. Subramaniam, learned Counsel for the Respondent, would contend

that Section 223(d) Cr.P.C., may permit a joint trial, since it was plausible that different offences had been committed in the course of the same

transaction. As an alternative, he would submit that it will be premature to go into this question at this stage.

I have carefully considered the submissions made by both the counsel. In the complete absence of any allegation that the Petitioner was in any

way connected with the commission of murder, or the conspiracy to commit that crime, or for concealing the said offence, a joint trial will be

absolutely illegal. The only allegation against the Petitioner is as to what happened at the police station on the next day, when he is alleged to have

threatened the witness Rajagopal. This circumstance alone would not in my view render the offence of murder and the offence of concealing the

body of the deceased parts of the same transaction. I am unable to agree that Section 223(d) Cr.P.C., will permit the Petitioner to be included

along with the other accused in this complaint. I am also unable to agree that it will be premature to consider the question of misjoinder, for the

very issue of process affects the rights of the accused and prima facie, on the very complaint itself, if it is patent that there is a misjoinder of persons

and offences, there will be no bar for invoking the inherent powers u/s 482 Cr.P.C., to set right the illegality even at the initiation. On this ground of

misjoinder of persons and offences, this complaint against the Petitioner will have to be quashed.

Regarding the second contention, the averments in the complaint will indicate that the Petitioner had fabricated false evidence against the

relations of the deceased and had made a false charge of such offence with an intent to injure the accused in the Sessions Case. The offences

punishable u/s 192, 194, 195 and 211 I.P.C., are prima facie discernible and it may also be, that the averments may take in their fold an offence

u/s 218 I.P.C. As far as the offences; u/s 194, 195 and 211, I.P.C., are concerned, there is a legal bar of the Magistrate to take cognizance

except on a complaint in writing by the Court or some other Court to which that Court is subordinate. It is clear that the charge-sheet had been

filed before the Committal Court and the proceedings are now pending before the Court of Sessions in relation to Crime No. 145 of 1985. The

complaint for these offences may have to be made either by the Committal Magistrate or by the Court of Sessions. This may also be possible, after

the trial in S.C. No. 237 of 1987 is concluded. At this stage, it is apparent that to circumvent the provision of Section 195 Cr.P.C., this private

complaint has been filed, implicating the Petitioner for an offence u/s 506(II) I.P.C., alone. The attitude of the prosecution to circumvent Section

195 Cr.P.C., by resorting to prosecute for other offences, without attempting to move the Court or the Officer concerned for taking action u/s 195

Cr.P.C., cannot be allowed to stand. Learned Counsel for the Respondent would only submit that the prosecution for an offence u/s 506(2)

I.P.C., will still be maintainable, irrespective of the contention of the learned Counsel for the Petitioner. Once it is patent that circumvention of the

provision of Section 195 Cr.P.C., has been attempted by the Respondent, the proceedings will have to be quashed against the Petitioner on this

ground as well.

In the light of the aforesaid reasoning, the proceedings in P.R.C. No. 8 of 1986 on the file of J.S.C.M., Nanguneri, are quashed as far as this

Petitioner alone is concerned.