SELVARAJ Vs. MARIMUTHU

JUDGEMENT

(1.) THIS revision is directed against the order passed in crl. M. P. No. 2146 of 1993 in P. R. C. No. 3 of 1993, dated 13. 8. 1993 on the file of judicial Magistrate No. 1, Pattukottai, by which the revision petitioner-Selvaraj was directed to be included as one of the accused viz. , accused 55 in the above P. R. C. and summons to be issued to him. The said, order impugned herein has been passed on the application filed by one Marimuthu, who is said to be the first informant in the P. R. C. , which has been taken on file for an offence under Sec. 307, I. P. C. Though reference about the involvement of the revision petitioner-Selvaraj was made in the record, the 2nd respondent/police has thought it fit, for the reasons best known to them, to omit the name of the revision petitioner in the charge-sheet. The said Marimuthu, the first informant has filed the application before the learned Magistrate under sec. 319, Crl. P. C, which is an irrelevant section, as contended by learned counsel for the revision petitioner. The learned Magistrate who has taken cognizance of the offence under Sec. 307, I. P. C. , against accused 1 to 54, has considered this application and after perusal of the records found out that there are some reference about the involvement of revision petitioner-Selvaraj, and on that basis, the learned Magistrate has passed the order, directing the issue of summons and the impleading of the revision petitioner as accused No. 55.

(2.) IT is represented by learned counsel Mr. S. Mohan, appearing on behalf of Mr. Shanmugasundaram, counsel for the revision petitioner that the Magistrate has committed an illegality in passing the order on the application filed by the first informant, under Sec. 319, Crl. P. C, by issuing summons to the revision petitioner and adding him as accused No. 55, without understanding the concept of Sec. 319, Crl. P. C. He also relied upon the judgments reported in Rajendran v. Drug Inspector, G. T. , Madras, 1991 L. W. (Crl.) 78 and 1995 Crimes 351 in support of his contention that Sec. 319, crl. P. C. though refers before enquiry and trial' ; , the Magistrate can consider the evidence recorded only either at the stage of enquiry or at the stage of trial and then come to the conclusion in this respect. This mandatory procedure has not been followed by the learned magistrate, which is clearly illegal. I find sufficient force in the contention raised by learned counsel Mr. S. Mohan.