GANDHI Vs. M. BOORASWAMY AND ORS.

JUDGEMENT

(1.) THIS revision is at the instance of an impleaded accused in S.C.No. 24 of 1994 on the file of the Sessions Judge, South Arcot Vallalar Division, Cuddalore, and the revision came to be filed under the following circumstances: - On a complaint lodged with the police by the first respondent, a crime was registered and the police ultimately filed the final report charging respondents 3 to 5. The learned Magistrate, on going through the materials and finding that the offence made out is triable by Court of Sessions, committed respondents 3 to 5 to the Sessions Court to take trial. Before the Sessions Court, the de facto complainant filed a petition contending that the materials collected by the investigating agency show the complicity of two other persons, namely Gandhi and Subramanian, the petitioner and the 6th respondent respectively in this revision. He, therefore, prayed that they have to be impleaded as accused in the Sessions Case. The learned Sessions Judge allowed the petition and impleaded Gandhi and Subramnian as accused. Aggrieved by the said order of impleading the two persons, the present petition is filed by Gandhi, one of the accused who was impleaded.

(2.) THE learned Counsel appearing for the Petitioner contends that the learned Sessions Judge ought not to have impleaded the Petitioner and the 6th Respondent in this revision, in view of Section 193 Code of Criminal Procedure which contemplates that the Court of Sessions can take cognizance of any offence as a court of original jurisdiction only on the case being committed to it by a Magistrate under the Code. According to him, as there was no committal order committing the Petitioner and the 6th Respondent to take their trial before the Sessions Court, the learned Sessions Judge was not justified in impleading them. In support of his plea, he relies upon the judgment of the Supreme Court rendered in Ranjit Singh v. State of Punjabi [ : (1998) 7 SCC 149], in which the Apex Court held that there is no power by which the Court of Sessions can array a new person as accused, but can only act under Section 319 Cr.P.C., if the evidence let in during the trial indicates the involvement of some other accused. The Supreme Court further held that even if the Sessions Court is of the view that more number of persons have to be impleaded as accused, then the Sessions Court cannot straightaway take cognizance of those persons, but only can make a reference to the High Court. The Supreme Court held that in a situation where the Sessions Judge notices the materials produced, but before any evidence is taken, that any other person should also have necessarily been made an accused, the Sessions Court is not without any power to deal with such contingency; and it can send a report to the High Court detailing the situations so that the High Court can in its inherent powers or revisional powers, direct the Magistrate to rectify the committal order by issuing process to such left -out accused.

(3.) THE learned counsel appearing for the first respondent submits that the revision having been filed and the matter having come to the notice of this court, it is not necessary for the Sessions Court to send a report making a reference to the High Court and this court, while exercising the powers of revision, can rectify the defect. He submits that the materials collected by the investigating agency and produced before the learned Magistrate in the form of final report, indicate the complicity of the petitioner and the 6th respondent and therefore, instead of waiting for the reference by the Sessions Court, this court can direct the learned Magistrate to commit. I see some force in the contention. I have also heard the learned counsel for the petitioner on the contention. On considering the materials, I feel that directing the Sessions Court to make a reference so as to enable this court to issue a direction to the learned Magistrate to commit the petitioner and the 6th respondent to take their trial, will delay the committal to the Sessions Judge. As this court feels that there are materials against the petitioner and the 6th respondent, which justify their inclusion as accused to face their trial, I direct the learned Judicial Magistrate No. 1 Chidambaram to pass an order of committal committing the petitioner Gandhi and the 6th respondent Subramnian to take their trial before the learned Sessions Judge along with the other three accused, who are already facing trial in the said Sessions Case.