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D.Sabapathy @ Saba Kailas-vs-State Of Tamil Nadu Rep on 9 April, 2008

Madras High Court D.Sabapathy @ Saba Kailas-vs-State Of Tamil Nadu Rep on 9 April, 2008

DATE: 9.4.2008.

CORAM

THE HON’BLE MR.JUSTICE M.JEYAPAUL

Crl.R.C.No.1262 of 2007

and

M.P.Nos.1 and 2 of 2007

1. D.Sabapathy @ Saba Kailas

2. Shajini Petitioners

vs.

1. State of Tamil Nadu rep.

The Inspector of Police,

W-7, All Women Police Station,

T.Nagar, Chennai 600 017.

2. S.Vadivukkarasi Respondents

Criminal Revision Case filed under sections 397 and 401 Cr.P.C. seeking to set aside the order dated 5.7.2007 made in Crl.M.P.No.2293 of 2005 in C.C.No.4559 of 2004 on the file of XVII Metropolitan Magistrate, Saidapet, Chennai.

For petitioners: Mr.M.Sathyanarayanan

For R1 : Mr.A.Saravanan,

Govt. Advocate (Crl. Side)

For R2 : Mr.R.Gandhi, Senior Counsel for

Ms.R.Kamalarani

ORDER

The order passed by the learned XVII Metropolitan Magistrate, Saidapet, Chennai in Crl.M.P.No.2293 of 2005 in C.C.No 4559 of 2004 is under challenge before this court.

2. The petition filed invoking the provision under section 239 of the Code of Criminal Procedure seeking to discharge the accused stood dismissed by the Trial Court.

3. The first petitioner was charged for offences punishable under sections 498A, 406, 420 and 494 of the Indian Penal Code and second petitioner was charged for offences punishable under section 494 read with 109 and 506(ii) of the Indian Penal Code.

4. It was contended by the petitioners/accused that there was no entrustment of any property by the de facto complainant, and hence no offence under sections 420 and 406 of the Indian Penal Code would lie as against the first accused. As per section 198(1)(a) of the Code of Criminal Procedure the court can take cognizance of an offence punishable under Chapter XX only on a complaint laid by an aggrieved person. Further, the entire prosecution suffers from misjoinder of charges. Therefore, no case also has been made out as against the second accused for offences under sections 494 read with 109 and 506(ii) of the Indian Penal Code it was submitted by the accused before the Trial Court.

5. The Trial Court, having found that there are materials to show that there was criminal breach of trust, that offences under sections 498A and 494 of the Indian Penal Code can be jointly taken cognizance by the investigating officer and that there had been commonality of purpose in the series of acts committed by A1 and A2, chose to dismiss the petition seeking discharge under section 239 of the Code of Criminal Procedure.

6. Only two questions of law were raised before this court during the course of arguments by the learned counsel appearing for the petitioners/accused. The first one is that though the court alone can take cognizance of an offence punishable under section 494 of the Indian Penal Code as per section 198(1) of the Code of Criminal Procedure, the Trial Court has taken cognizance of the same based on the police report in connection with offences punishable under sections 494 and 498A of the Indian Penal Code. The second submission is that there are misjoinder of charges inasmuch as various offences alleged to have been committed at different point of time by one of the accused had been clubbed with the alleged occurrence which took place at the instance of the second accused at a different point of time. Therefore, two distinct and separate offences alleged to have been committed at different point of time cannot be clubbed together as they do not fall within the same set of transactions.

7. Learned counsel appearing for the respondent would contend that there is no embargo for taking up investigation of a cognizable and non-cognizable offences together as per section 155(4) of the Code of Criminal Procedure. As there is commonality of action alleged as against these petitioners, the court has rightly taken cognizance of all the offences said to have been committed at various point of time. At any rate, there is no reason to upset the well considered order passed by the Trial Judge, he would contend.

8. Section 198(1) of the Code of Criminal Procedure contemplates that no court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by the same person aggrieved by the offence. The offence under section 494 of the Indian Penal Code forms part of Chapter XX of the Indian Penal Code. If a person is charged with an offence under section 494 of the Indian Penal Code alone without combining the said offence with any cognizable offence, the court cannot take cognizance of such offence except upon a complaint made by some person aggrieved by the said offence. As per section 155(4) of the Code of Criminal Procedure, an officer in charge of a police station informed of a commission of a non-cognizable offence shall enter the substance of the information in a form prescribed by the Government in that behalf and refer the first informant to the Judicial Magistrate.

9. It is quite pertinent to refer to section 155(4) of the Code of Criminal Procedure. Under the aforesaid provision of law, it is found that where a case relates to two or more offences of which atleast one is cognizable, then the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

10. The Supreme Court in STATE OF ORISSA v. SHARAT CHANDRA SAHU ((1996) 6 SCC 435) has authoritatively held that the Station House Officer is not debarred from investigating a non cognizable case and including the same in the final report he submits if the facts disclose both cognizable and non cognizable offences. Therefore, if the first information report speaks of the commission of both cognizable and non cognizable offences and the materials gathered during the course of investigation support the said factual disclosure in the first information report, there is no embargo for the Station House Officer for filing a final report incorporating both cognizable and non cognizable cases. In such circumstances, it is not proper to direct the complainant being an aggrieved person to lodge a complaint separately for offence punishable under section 494 of the Indian Penal Code, the same being non cognizable one, to the Judicial Magistrate concerned. Such an exercise would be against the spirit of section 155 of the Code of Criminal Procedure.

11. Referring to section 223 of the Code of Criminal Procedure, the learned counsel appearing for the petitioners would contend that two distinct offences have been charged jointly which is not permissible in law. It is found that the main accused viz., the first petitioner was charged with offences punishable under sections 498A, 406, 420 and 494 of the Indian Penal Code and the second petitioner viz., the second accused was charged with offences punishable under sections 494 read with 109 and 506(ii) of the Indian Penal Code.

12. It has been demonstrated before this court that series of matrimonial offences have been allegedly committed by the first accused alone at the first instance and later on by joining hands with the second accused. There is continuity of action and commonality of purpose in the commission of offences alleged as against the first and second petitioners. Separate offences of different nature forming part of the same transaction can be tried in the same trial. It is not necessary that different offences shall be of the same nature for the purpose of conducting single trial. Section 223(b) of the Code of Criminal Procedure contemplates that persons accused of offences and persons accused of abetment of such offences can be charged and tried together.

13. Here is a case where the main accused viz., the first petitioner was charged with the main offence punishable under section 494 of the Indian Penal Code and the second petitioner who is the second accused was charged with abetment of such an offence. Therefore, there is no illegality in charging both the petitioners together for the series of matrimonial offences alleged to have been committed by them.

14. The learned counsel appearing for the petitioner cited the ratio laid down in BALBIR v. STATE OF HARYANA ((2000) 1 SCC 285) wherein it has been observed that if two diametrical opposite versions are put to joint trial, the confusion which could cause in the trial would be incalculable. It would then be a mess which would cause a dent in the fair trial. It is not permissible for the court under section 223 of the Code to club and consolidate the case on a police challan and a case on complaint where the prosecution versions in the police challan case and the complaint case are materially different and contradictory and mutually exclusive. It is found that the above said ratio has been laid in a case where there was an attempt to try jointly the case on a police report and the complaint case together when the prosecution versions and the version in the complaint are contradictory. In such circumstances, the Supreme Court has stated that those two cases will have to be tried separately in order to ensure fair trial. As there is commonality of purpose and continuity of action in the commission of the matrimonial offences alleged as against the petitioners herein, the aforesaid ratio does not apply to the facts and circumstances of the case.

15. In the above circumstances, it is found that there is no merit in the criminal revision filed by the petitioners. There is no illegality or irregularity in the order passed by the Trial Court. Therefore, the criminal revision fails and it stands dismissed. The connected Miscellaneous Petitions also stand dismissed.

ssk.

To

1. XVII Metropolitan Magistrate,

Saidapet, Chennai.

2. The Inspector of Police,

W-7, All Women Police Station,

T.Nagar,

Chennai 600 017.

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