Ratnasabapathy vs State

Ramalingam, J.—This criminal revision has been filed by the second accused Rathinasabapathy, (an Advocate practising at Tiruppur) in S.C. No. 9 of 1935 on the file of the learned First Additional Sessions Judge, Coimbatore, against the order dated 23rd July, 1988 refusing to discharge him from an offence punishable under S 302, r/w. S. 109, I.P.C., in that the petitioner herein is alleged to have instigated the first accused Muthu alias Muthu Maistry of Anupparapalayam, Tiruppur to commit the murder of one Natarajan, a Head Constable under suspension from 25th May. 1983 due to previous enmity, under the following circumstances.

The petitioner herein is an Advocate practising at Tiruppur. The deceased Natarajan was the Head Constable at Kunnathur Police Station, Periyar District during the month of May, 1983 and was residing at Periyar Colony, Tiruppur. One of the witnesses, styled in this case by name Subramaniam, is also a resident of Tirurpur. Another witness by name Gandhimathi, who is of questionable character indulging in illicit distillation, is a client of the petitioner herein. The case of the prosecution is this:-- On 25th May, 1983, a dispute arose between the petitioner herein/second accused and the deceased Natarajan at 11.45 p.m. The petitioner gave a complaint against the deceased in Tirupur North Police Station. A case was registered against the deceased in Crl. No. 278/83 under Ss. 341, 323 and 379 I.P.C. The matter was enquired into by the concerned Revenue Divisional Officer and a compromise has taken place between the petitioner and the deceased. However, the deceased continued to be under suspension from 27th May, 1983 onwards. While so, it is further alleged that on 19th December, 1983 at about 7.30 p.m. witnesses Muthu and Murugappa Gounder were conversing with each other after attending to calls of nature in front of a butcher shop. The deceased who was standing nearby called Muthuswami as �Checkpost, (as he is an assistant at a Checkpost) and asked him to come nearer to him. Thereafter Muthuswami and Murugappa Gunder went nearer to the deceased. Murugappa Gounder sat on the stem used for cutting the mutton. Witness Muthuswami and the deceased were conversing with each other. At that time the first accused passed through them. The deceased called the first accused. However, the first accused without heeding to the call made by the deceased went away. At that time, the deceased observed that all ''Pallans'' are calling themselves as ''gounders''. Witness Murugappa Gounder is alleged to have stated that the deceased should not refer to caste. The deceased is alleged to have replied then even though he happened to be a Head Constable the first accused has called him a person not capable of knowing the directions, like south and north and that is why he addressed him (the first accused) like that. Muthuswami is alleged to have asked the place where the first accused has uttered like that, for which the deceased has stated that when he and the first accused were drinking toddy, a week ago, near a garden named Vasavankuzhi thottam. While the deceased and witnesses Muthuswami and Murugappa Gounder were conversing with each other in the above said manner, the first accused who passed through them, returned the same way from south. The deceased asked the first accused to come nearer to him. The first accused without heeding to the call made by the deceased proceeded towards north. The deceased calling Muthuswami as "Checkpost", asked him to purchase two Scissors cigarettes. Witness Muthuswami went to purchase cigarettes from a nearby bunk. He was followed by the first accused. Witness Muthuswami enquired the first accused as to why he and the deceased, who were friends, were at loggerheads. At that time, the deceased calling himself as "Pandaram" in soliloquy and uttered persons like the first accused were calling themselves as "Gounders" and he does not know to which class of Gounders the first accused belongs, since there were 17 types of Gounders. The deceased also stated that the first accused belonged to "Palli Goundan" and gave a meaning that ''''Palli Goundan� means "Pallan", thereby indicating that the first accused is an untouchable. Immediately, the first accused warned the deceased that he should speak politely for which the deceased made a reply that persons like the first accused did not deserve any respect and so saying stood out and proceeded towards the first accused as if the deceased is going to assault the first accused. The first accused pulled out a knife from his waist and stabbed the deceased on his stomach and flank. There; after, the first accused proceeded towards north. The deceased fell down. Since the witness Muthuswami was also injured while the first accused pulled out a knife, he with to a nearby Doctor for treatment and returned to the place of occurrence and did not see anybody and he was examined at the time of inquest. To the same effect the witness Murugappa Gounder has stated in his statement recorded by the police. Murugappa Gounder is the person who gave information to the police through phone and thereafter the deceased was taken to the hospital by third parties.

At the hospital, the deceased was examined by the police and a statement was recorded, in which the deceased has stated that the first accused has stabbed him on his chest and left flank at the instigation of the second accused and the occurrence has been witnessed by one Murugappa Gounder as well as by one Muthuswami. He has also stated that he (deceased) left the company of the first accused and stopped taking arrack with him for the past ten days. He has further stated that the first accused ought to have stabbed him on the instigation of the second accused. Thereafter, the Judicial II Class Magistrate, Tirupur has also recorded a statement from the deceased, wherein he has mentioned the dispute that has taken place between him and the second accused and further stated that on 2-5-1983 at about 11.45 P.M., an Ambassador Car bearing No. 1064 came to his house and five persons, who were under the influence of drink, alighted from the car. They are the Deputy Tahsildar, a Banian Company Agent, a teacher, the petitioner herein and a Retired Head Constable, assisting the petitioner herein. He also mentioned that witness Gandhimathi, who is engaged in illicit distillation and belongs to Valaiyar caste, is a client of the petitioner herein, and that her husband Gopal is undergoing imprisonment in a murder case. Further the petitioner herein is conducting prohibition cases for and on behalf of the witness Gandhimathi. The deceased has stated that the occurrence has taken place at 11.45 p.m., on 25-5-1983, and that the first accused has stabbed after enquiring an "Iyer". Natarajan succumbed to the injuries on 20-12-1983 by 7.30 a.m.

Two more witnesses were examined by the prosecution, viz., one Subramaniam and Gandhimathi. According to witness Subramaniam, who ii a resident of Velampalayam, the father-in law of the petitioner herein is residing at Velampalayam, that on 19-12-1983 when he was returning from a place where he was constructing a house and while he was passing through Kaliamman Temple, he saw the second accused and the first accused conversing with each other without realising that the witness Subramaniam is passing through them. At that time,'' witness Subramaniam has heard the second accused saying to the first accused that he should finish off the head constable and he would protect him and so saying patted him on his back. On seeing witness Subramaniam, the first accused and the second accused did not talk further. Witness Subramaniam asked the second accused the reasons for his presence at Velampalayam, for which the second accused is alleged to have stated that he has come to celebrate ''Mangalya Viratham'' and also stated that the first accused has come to consult him in connection with a case and since there were too much crowd at his residence. On the next morning, he came to know about the occurrence. The statement of witness Gandhimathi recorded two days after the occurrence shows that the petitioner herein is her Advocate in two cases, that her husband is undergoing life imprisonment in connection with a murder case that she is being kept by one Kittu as a concubine, that she developed intimacy with the petitioner, that the petitioner used to visit her house, that one day the petitioner saw her talking with the deceased Head Constable, that she was questioned by the petitioner herein and that even though the petitioner has compromised with the Head Constable, the petitioner has stated to her that he would take revenge upon the deceased.

On the aforesaid facts, the trial court framed two charges. They are as follows:-

After framing the charges, the second accused filed Crl. M.P. No. 1510/85 on the file of this Court to call for the records in the case from the file of the Court of the Principal Sessions Judge, Coimbatore and to quash the proceedings in so far as it relates to the petitioner herein is concerned. this Court, by order, dated 23-3-1985, after hearing the petitioner herein has observed that the Investigating Officer has not filed a report under S. 173, Crl. P.C. and that the learned Public Prosecutor before the Sessions Court, also has not filed the written statement as contemplated under S.226, Crl. P.C. In such contingencies and on other grounds, this Court came to the conclusion that the exact case of the prosecution is not known as contended by the Learned Counsel for the petitioner herein and that the trial Court has framed the charge without proper application of its kind. Eventually, this Court set aside the charges in so far as it relates to the petitioner herein is concerned and remitted the papers back to the First Additional Sessions Judge, Coimbatore with a direction to obtain a statement from the Public Prosecutor as contemplated under S.226, Crl. P.C. and to decide the future coarse of action after hearing the case of the prosecution in this matter. In pursuance of the directions given by this Court, the matter was taken up by the First Additional Sessions Judge, Coimbatore, and the learned Public Prosecutor has filed a written statement as directed by this Court. The petitioner herein has also filed a petition under S.227, Crl.P.C. to discharge him.

Learned First Additional Sessions Judge, Coimbatore, after hearing the submissions of the accused, the petitioner herein and that of the prosecution, considered that there is ground for presuming that the accused, the petitioner herein, has committed the offence punishable under S.302 r/w 109, I.P.C. and on that ground refused to discharge the petitioner herein. To set aside the said order passed by the learned First Additional Sessions Judge, Coimbatore, this revision has been filed under Ss.397 and 401. Crl. P.C.

The question that arises for consideration in this revision is, whether the order of the learned First Additional Sessions Judge, Coimbatore is not correct and vitiated by any impropriety or illegality.

Learned Counsel for the petitioner contended that the case as put forth by the prosecution in the written statement filed by the learned Public Prosecutor before the sessions court warrants a discharge of the petitioner herein and as such the order passed by the trial court is vitiated and liable to be set aside.

I find much force in the contention of the Learned Counsel for the petitioner. The first dying declaration recorded by the Head Constable Paulraj mentions the enmity between the deceased and the petitioner herein. The deceased presumes that the first accused ought to have stabbed him at the instigation of the second accused, the petitioner herein. This statement is based on presumption. So no importance could be given to a statement based on presumption even though the statement happened to be a dying declaration. Toe next dying declaration that was recorded by the Judicial II Class Magistrate, Tirupur shows that the deceased was sinking because he mentioned the date of occurrence as on 25th May, 1983 at 11.45 p.m. Even though it mentioned the dispute that arose between the second accused and himself on 2nd May, 1983 the occurrence has taken place nearly seven months later. The statements of the eye witnesses to the occurrence show that the second accused was not present and that the deceased provoked the first accused. If the statements of Muthuswami and Murugappa Gounder, the eye witnesses to the occurrence are taken at par value, the following facts would emerge. The deceased and the first accused were intimate friends and they used to drink together. A week prior to the day of occurrence the deceased and the first accused consumed toddy and were taking mutton. During the revel, it is alleged that the first accused addressed the deceased that even though he happened to be a Head Constable he did not know which is north and which is south, as a result the deceased got annoyed. It is only on that ground the deceased is alleged to have addressed the first accused as "Pallan" when the first accused passed through the house of the deceased. This information was revealed by the deceased to the eyewitnesses to the occurrence. From what is stated to the eye witnesses by the deceased is true, the immediate provocation is not what is contained in the dying declaration of the deceased but what is stated to the eye witnesses. Further, while the first accused was returning from north, it is alleged that the deceased asked Muthuswami, who is an Assistant in a Checkpost, by calling himself as "Check Post" to purchase Scissors cigarettes. Muthuswami went to a nearby bunk, and purchased cigarettes. While he was returning with the cigarettes with a view to hand over to the deceased, the first accused followed him. Witness Muthuswami asked the first accused as to the reasons for difference of opinion between him and the deceased since they happened to be friends. While they came very near to the mutton stall, the deceased calling himself as "......Poojari" and indicating the first accused is alleged to come stating that persons like the first accused are roaming during night bouts calling them selves as "Goundan" and asked him whether he is a "Goundan". There are 17 types of Goundars and that the first accused belonged to Palli Goundan (Harijan Goundan), for which the first accused asked the deceased to give respect and take respect, for which the deceased is alleged to have stated that the first accused did not deserve any respect and rose from his seat and that the first accused has addressed the deceased in case if the deceased speaks like that he would not deserve respect and something would happen. Immediately, it is stated that the deceased rushed towards the first accused. At that time, the first accused pulled out a knife from his waist and stabbed the deceased and in the process of pulling out the knife from his waist, witness Muthuswami received an injury and has left the place to see a Doctor for treating the injury.

Learned Counsel for the petitioner urged, that if one accepts the evidence of the eye witnesses as true there is nothing on record to show the occurrence has taken place either on the provocation or at the instigation of the second accused, the petitioner herein. His further contention is that the statement of two witnesses, Subramanian and Gandhimathi, connecting the petitioner herein to corroborate the alleged dying declaration of the deceased, which is the First Information Report in this case, even if it is accepted, discloses grave suspicions against the accused and there is no prima facie evidence and the evidence is totally unworthy of credit and as such the learned Sessions Judge ought to have discharged the accused. I find much force in the contention of the Learned Counsel for the petitioner. The power of the High Court, while exercising the jurisdiction vested under S.482, Crl.P.C. has been amply elaborated by the Supreme Court in the decision reported to State of Karnataka Vs. L. Muniswamy and Others, . The view of the Supreme Court in this matter is that for meeting the ends of justice, the High Court is justified in quashing the proceedings against the accused in case High Court feels that it would be a sheer waste of public time and money to continue against the accused, when there is no material on the record on which any tribunal could reasonably convict the accused for any offence connected with the charge. The examination of Subramaniam and Gandhimathi hid been for the mere reason that evidence of direct involvement of the accused, the petitioner herein, is lacking. According; to the Supreme Court, the saving of the High Court''s inherent powers, both in civil and criminal matters, is designed to achieve a salutary pub lie purpose which is that Court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution and that the High Court would be justified in quashing the proceedings in a criminal case, where the very nature of the material on which the structure of the prosecution rests is weak and lame. It also stated that it is wrong to say that at the stage of framing charges the Court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence. While considering whether there is sufficient ground for proceeding against the accused, according to the Supreme Court, the court possesses a comparatively wider discretion in the exercise of which, it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. The contention of the learned Public Prosecutor that the High Court should not interfere with the Session''s Court orders prematurely is not justified. The High Court is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. The High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The Supreme Court has further enlightened by observing as follows:

The ends of justice are higher than the ends of mere law though justice has got to be administered according to law made by the legislature. Without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.

To the same effect, in a later decision reported in Union of India v. Prafulla Kumar Samal 1979 L.W. (Crl.) (S.C.) 86 : 1979 2 S.C.R. 229, the Supreme Court has laid down the following four principles:

That the Judge while considering the question of framing the charges under S.227 of the Code that 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;

Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial;

The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused;

That In exercising his jurisdiction under S.227 of the Code of the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting trial.

Applying the principles enunciated by the Supreme Court to the present case, is order to find out whether or not the Sessions Court is legally justified in framing a charge against the petitioner herein, I find that the reasoning adopted by the Sessions Judge is not justified. Of the two witnesses examined against the? petitioner to corroborate what j� alleged to have been stated by the deceased one is a chance witness and another is of questionable character. As I stated earlier, even the statement of the deceased at the first instance is based on presumption find not on legal evidence. As such, I find that the charge framed against the petitioner herein is liable to t*e quashed and accordingly this charge framed against the petitioner is quashed.

In the result, the criminal revision is allowed, and the petitioner is discharged.