The petitioners, who have been arrayed as accused in P.R.C.No.6 of 1987 on the file of the learned Judicial II Class Magistrate, City No.II, Coimbatore, on a petition filed by the complainant / respondent herein under Section 319 of the Criminal Procedure Code, have filed the above Criminal Original Petition to quash the order dated 29.04.1987 passed in C.M.P.No.744 of 1987.
2. Learned counsel for the petitioners submitted that on a complaint filed by the respondent herein, after recording the sworn statement of the complainant and the four other witnesses, the case was taken on file for the offences under
Sections 114,120 (b), 148, 392 (1) and 448 IPC read with
Sections 34 &
39 of the IPC and thereafter the complainant filed C.M.P.No.744 of 1987 under
Section 319 of the Criminal Procedure Code alleging that there are allegations against the petitioners herein in the body of the complaint though their names were not mentioned in the cause title and in the sworn statement the names of the petitioners have been mentioned. In the petition it was further alleged that the complainant and the witnesses have stated on oath that the petitioners have committed offence along with the other accused during the course of the same transaction and hence sought for arraying them as accused.
3. Learned counsel for the petitioners further submitted that without keeping in mind the provisions contained in
Section 319 of the Cr.P.C., and without proper application of judicial mind, the learned Magistrate ordered the issuance of summons to the accused and the order is bereft of reasons. He further submitted that the learned Magistrate ought not to have invoked his powers under
Section 319 of the Cr.P.C., and arryed the petitioner as accused even before the trial in the case has commenced. He further submitted that as per
Section 319 of the Cr.P.C., the evidence envisaged in the Section is the evidence tendered during trial of the case if the offence is triable by a Court of Session and the materials placed before the committal court cannot be treated as evidence collected during enquiry or during the course of trial. He further submitted that admittedly the offence under
Section 392 (1) of the Cr.P.C., is triable by the Court of Sessions and as such the order passed by the learned Magistrate by invoking
Section 319 of the Cr.P.C., is unsustainable. In support of the above said contention, the learned counsel placed reliance on a decision of the Apex Court reported in (1998) 7 Supreme Court Cases 149 (RANJIT SINGH v. STATE OF PUNJAB). In the said decision, in paragraph 9, it is held as under:-
"9. Now it is well-nigh settled that "evidence" envisaged in
Section 319 of the Code is the evidence tendered during trial of the case if the offence is triable by a Court of Session. The material placed before the committal court cannot be treated as evidence collected during enquiry or trial (vide Raj Kishore Prasad v. State of Bihar (1996) 4 SCC 495 : 1996 SCC (Cri) 772)"
4. On the aforesaid submissions, the legal Aid Counsel appearing for the respondent was heard.
5. Learned counsel appearing for the respondent also fairly submitted that the procedure adopted by the learned Magistrate is against the very provisions contained in
Section 319 of the Cr.P.C., and fairly submitted that even in the complaint and in the swron statements the witnesses have not spoken to anything about the part played by the petitioners and there are no allegations prima facie to constitute the ingredients of the offences alleged. He also fairly submitted that the decision relied upon by the learned counsel for the petitioners is squarely applicable to the facts of this case.
6. I have considered the said submissions made by the learned counsel on either side.
7. Admittedly, P.R.C.No.15 of 2000 pending on the file of the Judicial Magistrate No.6, at Coimbatore, is triable by the Court of Sessions, as the offence under
Section 392 (1) is triable by the Court of Sessions. Therefore,
Section 319 of the Cr.P.C., can be invoked only by the Court of Sessions that too after the evidence has been tendered during tiral of the case. Admittedly, the case has not been committed to for trial before the Sessions Court and therefore the learned Magistrate is not empowered under
Section 319 of the Cr.P.C., to implicate or / array the petitioners as the accused by invoking the provisions contained in
Section 319 of the Cr.P.C., Further, it has to be pointed out that the order sought to be quashed is a non-speaking order and the same has been passed without application of mind and therefore the same cannot be sustained.
8. For the aforesaid reasons, the order passed in P.R.C.No.15 of 2000 pending on the file of the Judicial Magistrate No.6, at Coimbatore, is hereby set-aside and the above Criminal Original Petition is allowed. Consequently, the connected Crl.M.P. is closed.
srk To The Judicial Magistrate No.6 Coimbatore