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A.Sethuraman vs State Through on 27 April, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 27.04.2017

CORAM

THE HONOURABLE MR.JUSTICE P.N.PRAKASH

Crl.O.P.(MD)No.5275 of 2017
and
Crl.M.P.(MD)No.3729 of 2017

1.A.Sethuraman
2.S.Pandiammal
3.A.Radhakrishnan : Petitioners

-Vs-

State through
the Inspector of Police,
All Women Police Station,
Samayanallur,
Madurai District.
(Crime No.10 of 2008). : Respondent

PRAYER: Petition is filed under Section 482 of the Criminal Procedure Code
praying to call for the records relating to the “B” Diary order issue summons
to witnesses Nos.1 to 3 and posted for evidence dated 10.03.2017 passed in
Spl.S.C.No.168 of 2011 on the file of the learned Additional District and
Sessions Judge (Mahaleer Neethimandram), Madurai and set aside the same.

!For Petitioners : Mr.T.K.Gopalan

^For Respondent : Mr.A.P.Balasubramani,
Government Advocate (Crl.side)

:ORDER

For the sake of convenience, the parties should be referred to by their
names.

2. It is the case of Sathiya that Jeevagapandian promised to marry her
and had physical relationship with her, on account of which, she conceived.
It is her further allegation that when she asked Jeevagapandian to marry her,
he reneged and his family members viz, Sethuraman, Pandiammal and
Radhakrishnan joined hands against her and prevented him from marrying her.
Hence, she gave a complaint, based on which, Samayanallur police registered a
case in Crime No.10 of 2008 on 27.04.2008 under Sections 420 and 506(i) of
the Indian Penal Code. During the course of investigation, DNA profiling was
done and the DNA report shows that the child that was born to Sathiya was
fathered by Jeevagapandian. During the pendency of investigation,
Jeevagapandian died on 02.04.2010. The police completed the investigation and
filed a charge sheet against Jeevagapandian, Sethuraman, Pandiammal and
Radhakrishnan for offences under Sections 417, 376 r/w 109 of the Indian
Penal Code and the case is now pending trial in Spl.S.C.No.168 of 2011 before
the learned Additional District and Sessions Judge (Mahila Court), Madurai.
Charges for the aforesaid offences were framed by the Trial Court on
10.10.2011 against A-2 to A-4 and they pleaded not guilty. At that juncture,
they did not choose to file a discharge application under Section 227 of the
Code of Criminal Procedure. Thereafter, the petitioners have filed a petition
under Section 216 of the Code of Criminal Procedure for alteration of the
charges in Spl.S.C.No.168 of 2011, which, according to the petitioners, was
allowed by the Judge on 10.03.2015. Since the case was pending from 2011, the
present Judge has passed the following docket order on 10.03.2017:

“Trial. A-1 died. A-2 to A-4 absent. Petition u/s 317 Cr.P.C. filed and
allowed. Since the case is of the year 2011, issue summons to Witness Nos.1
to 3. Call on 24.03.2017.”

3. On 24.03.2017, the Judge has passed the following order:
“Crl.M.P.309 CrPC filed. A1 died. A 2 to A4 absent. Petition u/s 317
Cr.P.C. filed and allowed. Witness Nos.1 to 3 present. Crl.M.P.605 of 2017 is
pending. Call on 17.04.2017.”

4. While so, the petitioners, who are A-2 to A-4, have filed the
present quash application to set aside the “B” diary entry dated 10.03.2017.

5. Heard Mr.T.K.Gopalan, learned counsel for the petitioners and
Mr.A.P.Balasubramani, learned Government Advocate (Criminal side) appearing
for the first respondent.

6. Mr.T.K.Gopalan, learned counsel for the petitioners submitted that
after the death of Jeevagapandian, the offence under Section 376 of the
Indian Penal Code will abate and no charge under Section 109 of the Indian
Penal Code can be framed against the accused and, therefore, the Trial Court
ought to have altered the charge. He also submitted that in the light of the
order passed by the earlier Judge on the petition under Section 216 of the
Code of Criminal Procedure, the present Judge ought not to have issued
summons for examining L.Ws.1 to 3 on 10.03.2017 and, therefore, the docket
order dated 10.03.2017 should be set aside.

7. Per contra, the learned Government Advocate (Criminal side) refuted
the contentions.

8. This Court gave its anxious consideration to the rival submissions.

9. The fact remains that Jeevagapandian died on 02.04.2010. On the
death of the accused, the prosecution against him may abate. But the offence
committed by him can, by no stretch of imagination, stand abated. For
example, A, B and C conspired to kill ‘D’ and pursuant to the said
conspiracy, they killed ‘D’. Thereafter, if ‘A’ dies, the prosecution against
‘A’ can only abate. But, ‘B’ and ‘C’ cannot claim that they cannot be tried
for the charge of murder. In this case, the death of Jeevagapandian will
abate the prosecution against Jeevagapandian, but it will not abate the
offence of 376 IPC r/w 109 IPC against the petitioners herein. However, if
the petitioners were of the view that there was no prima facie case against
them for framing of a charge under Section 376 IPC r/w 109 IPC, they should
have filed a discharge application under Section 227 of the Code of Criminal
Procedure or inter alia challenge the prosecution in a quash application. On
the contrary, after the charges were framed by the Trial Court on 10.10.2011,
an application under Section 216 of the Code of Criminal Procedure for
alteration of the charges, without there being any material in the
interregnum cannot be maintained, in the light of Section 362 of the Code of
Criminal Procedure as a review cannot be done by a Criminal Court of its
earlier order. That apart, Section 216 gives a plenary power to a Trial Court
to alter the charges at any time before the judgment which means that after
framing of the charge and before the delivery of judgment, if the evidence
adduced in the case warrants alteration of charge, the power of the Court to
alter the charge is preserved by Section 216. Therefore, in this case, after
the charges were framed by the Trial Court on 10.10.2011, there has not been
any other additional material warranting alteration of charge under Section

216. Therefore, it was incumbent on the trial Judge to take evidence of the
witnesses and, therefore, summons were issued for examination of the
witnesses, viz., L.Ws.1 to 3, which cannot be faulted.

10. In the result, this petition is devoid of merits and accordingly,
the same is dismissed with liberty to the petitioners to work out their
remedies before the Trial Court. Whatever observed above is only for the
limited question of deciding this petition and the Trial Court shall proceed
with the case without in anyway being influenced by the observation as stated
above. Consequently, the connected miscellaneous petition is closed.

To

1.The Additional District and Sessions Judge
(Mahaleer Neethimandram),
Madurai.

2.The Inspector of Police,
All Women Police Station,
Samayanallur,
Madurai District.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai..

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