@JUDGMENTTAG-ORDER
K.P. Sivasubramaniam, J.@mdashThis revision is directed against the order of the learned Additional Sessions Judge-cum-Chief Judicial
Magistrate, Ramanathapuram, made in Crl.M.P.No. 185 of 1996 in S.C.No. 3 of 1996, dated 24.1.1997.
2. The twelve petitioners in the above revision petition alongwith 18 others, stood charged in Crime No. 145 of 1991 by the Sub-Inspector of
Police Peraiyur Police Station, for offences Under Sections 147, 148, 323, 324, 307, 302 read with Section 149, I.P.C. On behalf of the above
mentioned petitioners a petition u/s 227 Cr.P.C. in Crl.M.P.No. 185 of 1996 was filed for discharge mainly on the ground that there was no
incriminating material against any one of them as would appear from the records of the case as furnished to them. It was pointed out by the
petitioners that in the first information report given against them, none of their names has been mentioned. It appears that after the petition was filed,
the Public Prosecutor had filed Crl.M.P.No. 940 of 1996 praying for inclusion of one Muniasamy as a prosecution witness and to include his
statement u/s 161(3), Cr.P.C. as part of the case records wherein all the petitioners were alleged to have been implicated as abetting the offence of
murder and assault. It was further pleaded by the prosecution that the non-inclusion of Muniasamy in the list of prosecution witnesses was a mere
omission. It is true that the statement obtained by Muniasamy was not included in the list. The document not having been furnished to the accused
was only due to mistake. On the said, claims by the prosecution the trial court appears to have ordered inclusion as prayed for, by order dated
3.12.1996. Subsequently, the petition filed by the petitioners was taken up for hearing and the learned Chief Judicial Magistrate dismissed the
petition on the ground that the evidence of Muniasamy furnished prima facie basis to prosecute the petitioners and consequently the petition for
discharge filed by the petitioners was dismissed. It is as against the said order the present revision has been filed.
3. Subsequent to the dismissal of the petition, the learned Chief Judicial Magistrate has also framed charges against all the 27 accused persons. The
petitioners herein are accused 16 to 27 in the said Sessions Case. The facts regarding what had happened before the lower Court are not in
dispute. It is also not in dispute that the names of these petitioners are not mentioned in the First Information Report and that the implication of
these petitioners as accused is solely on the basis of the statement of Muniasamy who was not included in the original list of witnesses nor his
statement furnished along with the documents to the accused. Muniasamy has been included in the list of witnesses and his statement added
subsequently only after five years and that too after the present petition for discharge was filed by the petitioners.
4. Learned Public Prosecutor submits that the First Information Report cannot be an encyclopedia for all the facts and the omission to mention the
name of an individual was not a bar for charge-sheeting him as the accused. It is also open to the prosecution to rely on the various pieces of
evidence to sustain the charges and in a petition u/s 227, Cr.P.C. the enquiry was only as regards the existence of a prima facie case and the
discretionary order of the learned trial Judge cannot be interfered with.
5. The legal position thus stated by the learned Public Prosecutor cannot be disputed but the duty of the Court to discharge, if it is shown that there
are no sufficient grounds, is mandatory. The peculiar facts and circumstances arising in this case have to be borne in mind. There cannot be any
comparison between the facts of one case with the other and the following peculiar features seen in this case have to be given their due
consideration:-
(a) The names of as many as 12 persons are not found in the First Information Report and from the very array of the petitioners as accused would
disclose that their inclusion must have been the result of a subsequent intervention of some third parties to include these petitioners.
(b) Steps were not taken by the prosecution either to include Muniasamy in the list of witnesses or to furnish a copy of his statement to the accused
for more than five years. All of a sudden, the prosecution woke up only after a petition for discharge was filed.
(c) Apart from what is stated above, it is significant to note that these 12 persons were not arrested on 26.11.1991 along with other accused. If
really, the information about their involvement was available on 22.11.1991 itself there was no reason for their non-arrest. The only conclusion
which can be drawn is that either no statement was available prior to the arrest of all the other accused on 26.11.1991, or that the prosecution
itself was very well aware of the flimsy nature of the allegations against the said 12 accused.
(d) Belated inclusion of the names of the persons who are mostly wives and kith and kin of the other accused persons would only suggest that the
investigation appears to be diverted by some interested third parties for some personal reasons.
(e) The allegation against the petitioners is that they were shouting in front of the house of Alagarsamy along with the other accused to the effect
that as per the previous talks the deceased should be beaten up and killed. The place of occurrence is entirely different. The incident is said to
taken place at 1.30 P.M. on 21.11.1991 and that they were shouting in front of the house of Alagarsamy when the occurrence had also taken
place. But the facts, as disclosed in the First Information Report, is that the occurrence had taken place in front of the house of one Mariammal. A
perusal of the observation Mahazar of the scene of occurrence as well as the plan of the scene of occurrence appended to the observation
Mahazar, does not show the house of Alagarsamy as situate anywhere within the vicinity. All the houses in the street are marked with the names of
the owners and the name of Alagarsamy is not found in the list of the owners of the house. There is no proper explanation from the prosecution on
this issue. This would only suggest that these petitioners were nowhere at the scene of occurrence. The non-mentioning of the names of anyone of
the said 12 persons in the First Information Report, is therefore, understandable. If there had been a failure to mention about five or six out of 12
persons, it would be appreciated. But the failure to mention even one among the 12 persons is very significant.
(f) The very framing of the charges against 12 persons, as compared to other accused, would disclose the futile exercise which is being indulged in
by the prosecution. Out of a total of 10 charges in which specific charges have been made against other accused persons, only one charge (third
charge) relates to the petitioners and they are charged u/s 302 read with Section 109, I.P.C., for having allegedly instigated the other accused to
commit the murder.
6. None of the above reasons have been taken note of by the learned Chief Judicial Magistrate while passing the order under revision. The only
reason given by the learned Chief Judicial Magistrate is that the statement of Muniasamy was sufficient to hold a prima facie case against the
petitioners. In a petition u/s 227, Cr.P.C. several reasons have been urged by the petitioners to show that there was no basis for prosecuting them.
Even a discretionary order to be passed u/s 227, Cr.P.C. should be passed on a proper consideration of the various issues therein, instead of
merely referring to the contention and without any discussion thereon, merely holding that there is a prima facie case against the accused. Such an
order cannot be sustained. Such an approach would only render and reduce Section 227, Cr.P.C. into a meaningless and ineffective provision.
7. It is not known as to why it has taken more than five years to frame charges in a case of murder. It is worthwhile for the prosecution to
concentrate and pursue its case against the prime accused against whom clear overt acts have been attributed instead of adopting the course of
witch-hunting and trying to rope in the family members of the accused on a charge of abatement. It would only weaken the prosecution case in its
venture to obtain a conviction of the actual culprits.
8. Learned counsel for the petitioners has referred to the judgment of the Supreme Court reported in State of Karnataka Vs. L. Muniswamy and
Others, in support of his contention that if there was no material on record on which any Court can reasonably convict the accused for any offence,
it would be a sheer waste of public money and time and to proceed against the accused. In the said judgment, the order of the High Court
quashing the charges against some of the accused was upheld by the Supreme Court.
9. It is no doubt true that in dealing with rejection of a petition u/s 227, Cr.P.C. this Court would not normally interfere with such an order in a
revision. But in view of the various defects in the prosecution case as detailed above, I am inclined to conclude that it would be futile to prosecute
the petitioners herein in view of the said features.
10. I am therefore inclined to set aside the order of the learned Chief Judicial Magistrate and consequently the charges framed against accused 16
to 27 have also to be set aside. In the present revision, the petitioners have prayed for calling for the records, to quash further proceedings against
the accused and also to quash the charges framed against them.
11. In the result, the above revision is allowed. The charges against accused Nos. 16 to 27 are quashed and they are discharged. The Trial Court
is directed to proceed with the case expeditiously as against the other accused. The occurrence is said to have taken place in the year 1991 and
already six years have elapsed without even commencing the trial. Therefore, the learned Additional Sessions Judge-cum-Chief Judicial Magistrate,
Ramanathapuram, is directed to take up the trial of the case in S.C.No. 3 of 1996 and to dispose of the same expeditiously.
