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KUMAR versus STATE

High Court of Madras

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Kumar v. State - Criminal R.C. No.740 of 2005 [2007] RD-TN 549 (12 February 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 12.02.2007

CORAM:

THE HONOURABLE MR.JUSTICE S.TAMILVANAN

Criminal R.C. No.740 of 2005

and

Crl. M.P. No.4793 of 2005

Kumar ..Petitioner Vs

State

represented by Superintendent of Police

Salem

(Cr.No.350 /03 of Yercaud Police Station) ..Respondent Criminal Revision Petition filed under Section 397 and 401 Cr.P.C. against the order, dated 18.04.2005 passed in C.M.P.No.7/05 in S.C.No.56/04 on the file of the I Additional Sessions Judge, Salem, seeking to set aside the order passed in the petition filed u/s 409 (2) of Cr.P.C. For petitioner : Mr.K.V.Sridharan

For respondent : Mr.Hasan Mohammed Jinnah, Govt. Advocate (Crl. side) O R D E R



This Criminal Revision is directed against the order, dated 18.04.2005 passed in C.M.P.No.7/05 in S.C.No.56/04, on the file of the I Additional Sessions Judge, Salem.

2. It is seen that the petitioner / accused had filed the Criminal Miscellaneous Petition before the I Additional Sessions Judge, Salem under Section 409 (2) Cr.P.C, with the prayer, which reads as follows " The further proceedings in the above case be stopped and the case be disposed off according to law".

3. The learned counsel appearing for the revision petitioner would contend that the learned Principal Sessions Judge, Salem, after recalling the case from the Fast Track Court No.I, Salem, has made over the same to the I Additional Sessions Court, though charges had already been framed against the petitioner / accused. It is seen that the charges were framed against the revision petitioner / accused, under Section 376, 302 (2 counts), 302 r/w 201 (2 counts) and 506 (ii) IPC. The learned counsel appearing for the revision petitioner has not disputed the fact that 30 prosecution witnesses were examined before the I Additional Sessions Court and after closing the prosecution evidence, the case was posted for questioning the accused under Section 313 Cr.P.C by the court below and at that stage, the revision petitioner has come forward with this petition under Section 409 (2) Cr.P.C, before the I Additional Sessions Court to stop all further proceedings. The said petition was dismissed by the court below, aggrieved by which, this revision has been preferred.

4. The learned counsel appearing for the revision petitioner would contend that on administrative grounds, the Principal Sessions Judge, Salem, by his order in D.No.8001/2004, withdrew the case from the file of the Fast Track Court No.I, Salem and made over the case to the I Additional Sessions Judge, Salem, for disposal, according to law. According to the learned counsel for the revision petitioner, as the charges had already been framed by the learned Fast Track Judge, Salem, it was not open to the Principal Sessions Judge, Salem to make over the case to the I Additional Sessions Judge, Salem.

5. It is not in dispute that as per the prosecution case, the petitioner / accused is alleged to have committed rape of the deceased, Vijayalakshmi and subsequently, killed the said victim and her female child, and in order to screen the evidence, poured kerosene on the dead bodies and set fire and also threatened the witness Selvi, thereby committed the alleged offence, punishable under Sections 376, 302 (2 counts), 302 read with 201 (2 counts) and 506 (ii) IPC.

6. The learned Government Advocate contended that so far 30 witnesses have been examined by the I Additional Sessions Court, Salem, and the prosecution evidence was also closed and when the case was posted for questioning the revision petitioner / accused, he came forward with the petition, only with the view to protract the criminal proceedings, which is not maintainable in law.

7. In the Criminal Revision, both the learned counsel have raised the following points for consideration:

1. Whether the petition filed under Section 409 (2) Cr.P.C, before the I Additional Sessions Court is legally maintainable?

2. Whether the prayer seeking to stop further proceedings, by way of filing the criminal miscellaneous petition is legally sustainable and supported by valid grounds ?

3. Whether the revision petitioner can challenge the criminal proceedings in view of Section 462 of the Code of Criminal Procedure, after the prosecution evidence is closed and when the case is posted for questioning the accused under Section 313 Cr.P.C ?

8. It is not disputed that after the case was made over to I Additional Sessions Court, Salem, 30 prosecution witnesses have been examined and the prosecution evidence was also closed and when the case was posted for questioning the accused under Section 313 Cr.P.C, the revision petitioner / accused filed the petition under Section 409 (2) Cr.P.C, before the I Additional Sessions Court to stop further proceedings against him. There is no satisfactory reason from the revision petitioner, as to why the order passed by the Principal Sessions Judge was not challenged, immediately after the case was withdrawn and made over to the I Additional Sessions Court. Further, he has not stated any valid reason, as to how he would be prejudiced by the impugned order.

9. According to the learned Government Advocate, the petition filed under Section 409 (2) Cr.P.C before the I Additional Sessions Court, Salem seeking to stop further proceedings is not legally maintainable. As contemplated under Section 409 (2) Cr.P.C, only the Principal Sessions Judge, being the Sessions Judge is empowered to withdraw any case, pending before any Additional Sessions Judge and make over the case to another Additional Sessions Court on administrative grounds.

10. Section 409 (2) of Code of Criminal Procedure reads as follows : " At any time before the trial of the case or hearing of the appeal as commenced before the Additional Sessions Judge, Sessions Judge may recall any case or appeal, which he has made over to any Additional Sessions Judge." The term 'Sessions Judge' as contemplated under Section 409 Cr.P.C is only the Principal Sessions Judge and not an Additional Sessions Judge and hence, the petition filed under Section 409 (2) before the I Additional Sessions Judge is not maintainable in law.

11. Learned counsel for the revision petitioner has not disputed that under Section 409 (2) Cr.P.C, only the Principal Sessions Judge is vested with the power, to recall any case, pending before any Additional Sessions Court and make over the case to any other Additional Sessions Judge, on administrative grounds, and as such an additional Judge is not empowered to deal with Section 409 (2) Cr.P.C. Therefore, this Court is of the considered view that the petition filed under Section 409 (2) Cr.P.C, before the Additional Sessions Court is not legally maintainable.

12. As contended by the learned Government Advocate, the revision petitioner has sought, by way of filing the criminal miscellaneous petition, only to stop the proceedings before the I Additional Sessions Court, when the case was posted for questioning the accused under Section 313 Cr.P.C. It is seen that no valid reason has been assigned by the revision petitioner and he has questioned only the earlier order of made over, passed by the Principal Sessions Judge, stating that under Section 409 (2) Cr.P.C, the said order could not have been passed by the Principal Sessions Judge. It is clear that the revision petitioner cannot challenge the order passed by the Principal Sessions Judge, before the I Additional Sessions Judge, by way of filing the criminal miscellaneous petition and thereby, seeking an order to stop all further proceedings in the case. Therefore, for the second point raised, I am of the view that there is no valid reason assigned by the revision petitioner to stop further proceedings in the case, pending before the I Additional Sessions Court, Salem and as such, the prayer in the C.M.P.No.7/05 on the file of the court below is also not legally sustainable and not supported by valid grounds.

13. According to Mr.K.V.Sridharan, the learned counsel appearing for the revision petitioner, as charges were already framed by the Fast Track Court, the Principal Sessions Judge, could not have withdrawn the case and made over the same to the I Additional Sessions Court. In support of his contention, the learned counsel for the revision petitioner cited the following decisions:

1. Harminder Singh v. D.P.Majumder reported in 1996 (1) Crl.L.J. 815

2. Devarasu & 6 others v. State, etc., reported in 1998-1-L.W. (Crl) 128 The aforesaid decisions cited by the learned counsel for the petitioner are not applicable for the facts and circumstances of the case, since the criminal miscellaneous petition was filed only before the Additional Sessions Court, under Section 409 (2) Cr.P.C, which is not legally maintainable and the prayer thereon, seeking to stop all further proceedings is also not sustainable. Further, the order of making over the case by the Principal Sessions Judge, to the I Additional Sessions Judge, was not challenged by the revision petitioner / accused. The prosecution has examined 30 witnesses and after the prosecution evidence was closed, while the case was posted for questioning the accused under Section 313 Crl.P.C, the criminal miscellaneous petition was filed before the I Additional Sessions Court under Section 409 (2) Cr.P.C to stop all further proceedings and therefore, I am of the view that the decision cited by the learned counsel for the revision petitioner is not applicable for the facts and circumstances of this case on hand.

14. As contended by the learned Government Advocate, the scope of interference of this Court in a criminal revision is limited, as ruled by the Hon'ble Apex Court in various decisions. Therefore, I am of the considered view that this court need not give much importance, merely on the ground of wrong provision of law, as contended by the revision petitioner, and if it is to prevent abuse of process of the Court or in order to meet the ends of justice, this Court can interfere with the order passed by the court below, in a criminal revision.

15. Per contra, Mr.Hasan Mohamed Jinnah, the learned Government Advocate contended that the miscellaneous petition filed by the revision petitioner, is a clear abuse of process of the court and the same was filed with a view to drag on the proceedings and in support of his contention, he drew the attention of this court to Section 462 Cr.P.C and according to him, the criminal proceedings, pending before the I Additional Sessions court is perfectly valid in law, which cannot be challenged by the revision petitioner, on trivial grounds, and that too, before the I Additional Sessions Court. According to the learned Government Advocate, the petition was filed only with an ulterior motive.

16. As contemplated under Section 409 (2) Cr.P.C, the Principal Sessions Judge can withdraw the case from the file of an Additional Sessions Judge and make over the same to another Additional Sessions Judge on administrative grounds. The said provision is not applicable for a part heard case, but, in the instant case, admittedly, charges were framed by the Fast Track Court, at that stage, according to the learned Government Advocate, due to some genuine reason, the case was withdrawn from the file of the said court and made over to the I Additional Sessions Court to be disposed according to law. On the facts and circumstances, this Court has to draw the line of harmonious construction, with reference to Sections 409 (2) and 462 Cr.P.C.

17. The Hon'ble Supreme Court in the decision Delhi Municipality v. Ram Kishan, reported in AIR 1983 SC 67, at page number 68 as held as follows : " 5...It is true that Section 397 (2) clearly bars the jurisdiction of the Court in respect of interlocutory order passed in appeal, enquiry or other proceedings. The matter is however, no longer res integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye v. State of Maharashtra, (1978) 1 SCR 749 : (AIR 1978 SC 47) where this Court pointed out that Section 482 of the present Code had a different parameter and was a provision independent of Section 397 (2). This Court further held that while Section 397 (2) applied to the exercise of revisional powers of the High Court, Section 482 regulated the inherent powers of the Court to pass orders necessary in order to prevent the abuse of the process of the Court." Though, Section 397 (2) Cr.P.C, clearly bars the jurisdiction of the court in respect of interlocutory orders, passed in appeal. Considering the inherent power under Section 482, Hon'ble Supreme Court has taken a view on the basis of harmonious construction, in order to prevent abuse of process of the court and to meet the ends of justice.

18. Section 462 of the Code of Criminal Procedure reads as follows: " No finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong session division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice." Here in this case, the revision petitioner / accused has not stated any reason to show that as to how he would be prejudiced. It is seen that the I Additional Sessions court, which has proceeded the trial up to the stage of questioning the accused Section 313 Cr.P.C, is no way inferior to the Fast Track Judge, in deciding the sessions case. I am of the view that Section 462 Cr.P.C is squarely applicable for the facts and circumstances of this case. Here in this case, there is no possibility for failure of justice, on account of the trial being conducted before the I Additional Sessions Judge, as made over by the Principal Sessions Judge.

19. In a criminal revision, unless there is manifest error of law or patent illegality, resulting in failure of justice, this Court cannot interfere with the order of the court below. In this case, the revision petitioner has not specifically stated, as to how he is prejudiced by the impugned order. Had the revision petitioner been aggrieved by the order passed by the Principal Sessions Judge, he could have challenged the order, but so far, he has not challenged the order, but, after the examination of 30 witnesses and closure of the prosecution evidence, he filed the criminal miscellaneous petition under Section 409 (2) Cr.P.C, before the I Additional Sessions Court with a prayer to stop further proceedings and hence, as contended by Mr.Hasan Mohamed Jinnah, the learned Government Advocate, it would be a clear abuse of process of the court.

20. I could see no manifest error of law or illegality, which would prejudice the rights of the revision petitioner, resulting in failure of justice, so as to warrant the interference of this Court in the criminal revision.

21. Considering the facts and circumstances, I am of the view that the criminal miscellaneous petition filed by the petitioner before the trial court, has been rightly dismissed by the court below and hence, the revision petition is liable to be dismissed.

22. Accordingly, the Criminal Revision Petition is dismissed and the interim stay already granted is vacated and the Crl.M.P.No.4793 of 2005 is also dismissed. The trial court is directed to dispose the case, with in one month from the date of receipt of the case records, according to law. tsvn

To

1. The I Additional Sessions Judge

Salem.

2. The Superintendent of Police

Salem.

3. The Public Prosecutor

High Court

Madras 104.

[PRV/9577]


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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