ELANGOVAN Vs. JAYABALAN

JUDGEMENT

(1.) The petitioner who is P.W.11 in S.C.No.126 of 2002 has filed the above Criminal Revision Case against the order dated 9.4.2003 made in Crl.M.P.No.7 of 2003 in S.C.No.126 of 2002 by the Court of Additional Sessions Judge,(Fast Track Court No.II), Tindivanam on grounds that the learned Sessions Judge has erroneously passed orders to implead the petitioner herein as an accused in S.C.No.126 of 2002; that the learned Judge has failed to consider the point that for every criminal offence punishable under I.P.C., there should be criminal intention i.e. Mens rea but in this case there is no such Mens rea as warranted by the Criminal Procedure Code and as well as Indian Penal Code and that the learned Judge ought not to have taken the petition under Section 319 of Cr.P.C. on her file; that the learned Judge has failed to consider that the petitioner herein as P.w.11 in this case has already deposed as a prosecution witness and that the petition filed under Section 319 of Cr.P.C. is an after-thought of the first respondent herein in order to drag on the proceedings; that the learned Judge has analysed the counter statement filed by the petitioner herein as well as the State in improper manner since the petitioner herein at the time of making entries in Ex.P.10 series on the request of the first respondent herein was not aware of the occurrence that took place in the Sub Jail and in such absence of knowledge and intention the act of the petitioner herein cannot be termed an offence falling under Sections 218, 466 and 477-A of the I.P.C.; that the learned Judge has failed to consider the fact that the petitioner has already been placed under suspension and proceeded against for dereliction of duty in a departmental enquiry which is going on and impleading the petitioner as an accused in the above Sessions case is a clear cut case falling under the doctrine of double jeopardy which is barred under Section 300 Cr.P.C.; that the learned Judge has filed to consider that there is no substantial evidence produced by the first respondent; that the learned Judge further has failed to consider that in the normal course ill-health prisoners are brought to the duty doctor by the warder of the jail and get signature from the duty doctor; that in any event the order passed by the learned Judge have to be quashed. On such grounds the petitioner would pray for the relief extracted supra.

(2.) During arguments, the learned counsel appearing on behalf of the petitioners would only reiterate the grounds raised in the above Criminal Revision Case with no new facts or circumstances or law having brought forth praying for the relief sought for in the petition stating that in reply to the petition, from the lower Court, the petitioner herein has submitted before the court below that he was not aware of the occurrence that took place in the Sub-jail, Gingee on 29th and 30th October, 2001; that on 1.11.2001 when he was busy with hospital work, the first respondent herein came to his office with the 'IN' and 'OUT' register and requested to sign the same stating that all the prisoners were in good health, trusting which he made entries in Ex.P.10 series in order to oblige them; that the act was only dereliction of duty for which he had already been placed under suspension and the enquiry was pending and at this stage belatedly such of having examined 52 witnesses of prosecution, this petition filed would only lead the dragging of the proceeding and to waste the precious time of the court and hence would pray to dismiss the same.

(3.) On the part of the learned Government Advocate on the Criminal side, he would sail along with the order of the lower Court which is impugned herein and would further point out that on a petition filed by the first respondent who is the second accused in the case in S.C.No.126 of 2002 stating that this petitioner has been examined as P.W.11 in the above Sessions case deposing to the effect that in the 'IN' and 'OUT' register maintained in the Sub-jail, Gingee he has made entries in Ex.P.10 series on 1.11.2001 as if he visited the Sub-jail Gingee on 30.10.2001 and 31.10.2001 without actually visiting the Sub-jail, Gingee and looking into the health conditions of the prisoners as required by law and therefore, he being a public servant framed incorrect record, forging the public register and using it as genuine, further falsifying the accounts therein and has committed the offences punishable under Sections 218, 266 and 477A I.P.C. and therefore, he ought to have been impleaded by the prosecuting agency as an accused in the above case for the commission of the said offences and that petition has been filed under Section 319 of Cr.P.C. praying to include the petitioner herein as accused in S.C.No.126 of 2002 on the file of the Court below.