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2022 Supreme(Mad) 871
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Anthony Pal - Petitioner
Versus
State Rep. by The Inspector of Police, Kanchipuram & Another - Respondents
Criminal Revision Case No. 564 of 2016 & Crl. M.P. No. 3790 of 2016
Decided On : 06-09-2022
For the Petitioner: R. Sankarasubbu.
For the Respondents:N.S. Suganthan, Government Advocate (Crl.Side).
The main legal point established in the judgment is the need to follow the guidelines laid down by the Hon'ble Apex Court in summoning an additional accused under Section 319 of Cr.P.C.
Headnote:
Summoning - Criminal Revision Case - Section 61 of Cr.P.C - Sections 447, 427 and 506(i) of IPC - Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992
Fact of the Case:
The case involved a complaint alleging trespass and damage to property. The trial court issued a summon to the petitioner under Section 61 of Cr.P.C. without proper consideration of the evidence and guidelines.
Finding of the Court:
The court found that the summon issued under Section 61 of Cr.P.C. was not in line with the docket order and that a prima facie case was made out against the petitioner. However, it directed the trial court to issue a fresh summon under Section 319 of Cr.P.C. and consider the guidelines laid down by the Hon'ble Apex Court in the Hardeep Singh case.
Issues: The issues revolved around the legality of the summon issued under Section 61 of Cr.P.C., the consideration of evidence, and the application of guidelines for summoning an additional accused.
Ratio Decidendi: The court held that while a prima facie case was made out against the petitioner, the summon issued under Section 61 of Cr.P.C. was not appropriate. It emphasized the need to follow the guidelines laid down by the Hon'ble Apex Court in the Hardeep Singh case and directed the trial court to issue a fresh summon under Section 319 of Cr.P.C.
Final Decision: The Criminal Revision Case was disposed of with the direction for the trial court to issue a fresh summon under Section 319 of Cr.P.C. and consider the guidelines laid down by the Hon'ble Apex Court in the Hardeep Singh case.
JUDGMENT :
(Prayer: Criminal Revision Case has been filed under Section 397 r/w Section 401 of Cr.P.C., to summoning the order in C.C.No.45 of 2010 on the file of the District Munsif cum Judicial Magistrate at Uthiremerur, Kanchipuram District and set aside the same as illegal so far as this petitioner is concerned.)
1. This Criminal Revision Case filed challenging the legality of the summon issued by the trial Court under Section 61 of Cr.P.C to the petitioner arraying him as an additional accused in the pending trial in C.C.No.45 of 2010.
2. The second respondent/Bakiyam gave a complaint to the first respondent police on 11.05.2007 alleging that she is the owner of S.No.508/6C at Kuppaiyanallur Village, Uthiremerur. On 08.05.2007, her land was measured by the Taluk Surveyor and boundaries were fixed. While so, on that day at 11.30 p.m., (i) Asirvatham; (ii) Arokiyadoss; (iii) Sagayam; (iv) Sulochana and (v) Anthony Pal assembled unlawfully, they all trespassed into the land and removed the fence. When her brother Immanuvel and her brother's wife, Lurthumary questioned them, they threatened to kill them. The complaint was registered in Crime No. 308 of 2007 under Sections 147, 447, 427 and 506(i) of IPC r/w Sections 2 and 3 Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992.
3. After completion of investigation, final report was filed against Asirvatham(A1), Arokiyadoss(A2), Sagayam(A3) and Sulochana (A4). The name of the 5th accused Anthony Pal was dropped for the offence under Sections 447, 427 and 506(i) was taken cognizance. The second respondent/defacto complainant filed the petition under Section 319 of Cr.P.C., before the District Munsif-cum-Judicial Magistrate, Uthiramerur to include Anthony Pal as 5th accused in the case and issue summon to him for his appearance.
4. In the said petition, it is alleged that Anthony Pal, S/o Kitherian is the prime culprit of the offence. Without proper investigation, his name has been dropped and the value of the property damaged is mentioned erroneously as Rs.200/-, though the property damaged was worth about Rs.3000/-. Stating that she filed a petition before the Hon'ble High Court seeking direction to include Anthony Pal as 5th accused and the Hon'ble High Court, vide order dated 18.11.2011 in Crl.O.P.No.10144 of 2011 permitted the petitioner to file petition under Section 319 of Cr.P.C before the trial Court and seek redressal. Accordingly, the petition was filed.
5. Pursuant to her petition under Section 319 of Cr.P.C, the learned District Munsif-cum-Judicial Magistrate has caused summon to the petitioner under Section 61 of Cr.P.C., for appearance of the petitioner in person and answer to the charges under Sections 447, 427 and 506 (i) of IPC.
6. The learned counsel appearing for the petitioner submitted that the impugned summon has been issued on 22.12.2015 without proper appreciation of the law and facts. Based on the statement of one Lurthumary examined as PW-5, the present impugned summon has been issued after five years of the occurrence. Without any reason the summon issued to the petitioner to face the charges. The petitioner is forced to face the trial by including him as an additional accused without causing any notice.
7. The Report called for by this Court, vide order dated 18.11.2021, to ascertain whether any notice caused to the petitioner before arraying him as an additional accused. In response to the direction, the District Munsif cum Judicial Magistrate, Uthiramerur has forwarded his report dated 19.01.2022 stating that on 27.10.2015 the docket entry shows,
“A1 absent. 317 petition filed and allowed. Other accused present. On examination of PW-1, PW-2, PW-5 substantial evidence against Anthony Pal. Issue summon under Section 319 of Cr.P.C. Hon'ble High Court order call on 24.11.2015 for LWs.”
8. From the Docket order, it appears that on the petition filed by the defacto complainant under Section 319 of Cr.P.C, the learned District Munsif-cum-Judicial Magistrate
