BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/02/2010 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM CRL.R.C.(MD)No.56 of 2010 AND M.P.(MD)No.1 of 2010 1.J.Chitra Pandi 2.P.Raja Lingam 3.R.Selvam ... Petitioners Vs State through The Inspector of Police, Tisayanvilai Police Station Crime No.561/1994, Tirunelveli District. ... Respondent PRAYER Criminal Revision filed under Section 397 r/w. 401 of Cr.P.C., praying to set aside the order dated 25.01.2010, passed in Crl.M.P.No.540 of 2009 in SC No.338 of 1996, on the file of the Mahila Court, Tirunelveli. !For Petitioners ... Mr.J.Ashok ^For Respondent ... Mr.L.Murugan Govt.Advocate (crl.side) :JUDGMENT
The petitioners are the accused Nos.2, 3 and 6 in S.C.No.338 of 1996, on
the file of the Additional Sessions Court, (Mahila Court), Tirunelveli. Totally,
there are seven accused in this case.
2.Originally, the case was tried and the judgment was delivered on
15.02.2004, acquitting the first accused, but, convicting the accused Nos.2 to
4, for the offence under Section 376(2)(g) I.P.C., and convicting the accused
Nos.5 to 7 for the offence under Section 376 r/w 109 of I.P.C. As against the
said conviction, the accused Nos.2 to 7, had preferred an appeal before this
Court in C.A.Nos.27, 36 and 39 of 2005 and this Court has disposed of those
three appeals on 21.07.2009. While disposing of the appeal, this Court has set
aside the conviction and sentence passed on the accused Nos.2 to 7. The case
was remitted to the file of the trial court. In the judgment passed by this
Court it was stated that the trial court ought to have framed the charges under
Sections 376(2)(g) of the Indian Penal Code, since the specific case of the
prosecution is that the accused Nos.2 to 4 have committed a gang rape. The
trial Court failed to avail the provision under Section 216 of the Code of
Criminal Procedure, but convicted the accused under Section 376(2)(g) of the
Indian Penal Code. Only in the said circumstances, the matter was remitted back
to the trial Court. After the matter was being remanded to the trial Court, the
trial Court had framed fresh charges against the accused Nos.2 to 7. At that
stage, the petitioners herein, who are the accused Nos.2, 3, and 6, have filed a
petition to try them along with the first accused, who had already been
acquitted and the said petition was dismissed. Aggrieved by the said order, the
petitioners have preferred the criminal revision before this Court.
3.The learned counsel for the petitioners submitted that without summoning
the first accused, the trial Court proceeding against the remaining accused
would cause grave prejudice to them and the charges should have been framed on
the first accused also.
4.The Court heard the submissions made by the learned counsel for the
petitioners/Accused Nos.2,3 and 6 as well as the learned Government Advocate
(crl.side) and also perused the documents available on record.
5.Originally, the trial Court acquitted the first accused giving findings
that the first accused did not instigate the other co-accused to commit the
crime and it was also held that the first accused did not know that the offence
was being committed or contemplated. At the same time, the trial Court accepted
the prosecution case and convicted the other co-accused viz., A2 to A7. In the
appeal preferred by the co-accused Nos.2 to 7, this Court has not allowed the
appeal on rejecting the evidence of prosecution witnesses, but, only on the
ground that the accused Nos.2 to 4, were convicted under Section 376(2)(g) of
I.P.C., which is a gang rape, but, the charge was framed only under Section 376
I.P.C., and therefore, the accused must be given an opportunity to defend
themselves for the grave charge under Section 376(2)(g) of the Indian Penal
Code.
6.The State has not preferred any appeal against the acquittal already
passed in respect of the first accused. This court has also in its judgement
has not observed anything against the first accused. The acquittal in respect of
the first accused has not been set aside by this court. This being the case, the
co-accused Nos.2,3 and 6 have unnecessarily filed an application seeking the
trial Court to frame charges against the first accused also and try the case
once again against the first accused. It is very surprising to this Court how
the learned counsel appearing on behalf of the accused Nos.2, 3 and 6, has
chosen to file an application. The accused, who had already been acquitted once,
cannot be tried once again for the same offence. Section 300(1) of Cr.PC., reads
as follows:-
300.Person once convicted or acquitted not to be tried for the same
offence:-
(1) A person who has once been tried by a court of competent jurisdiction
for an offence and convicted or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be liable to be tried again for
the same offence, nor on the same facts for any other offence for which a
different charge from the one made against him might have been made under sub-
section (1) of Section 221, or for which he might have been convicted under sub-
section (2) thereof.
7.The learned counsel for the petitioners is unable to say under which
Section of the Criminal Procedure Code, the petition was filed by the accused
Nos.2,3 and 6, before the trial Court and hence it is maintainable. In the
petition filed by the petitioners/Accused Nos.2, 3 and 6, no provision is
quoted. It has been rightly observed by the trial Court that only to prolong
the trial as a delaying tactics, this petition has been filed by the
petitioners. A counsel appearing for an accused should not act in any manner
detrimental to the interest of the accused. Similarly, a counsel appearing for
one accused should not make any attempt unnecessarily to drag on or to implicate
the other accused in the proceedings. It is very painful to this Court to see
such a petition being filed by the counsel appearing for the accused Nos.2,3 and
6.
8.This Court does not find any infirmity in the order passed by the trial
Court. The petition filed by the accused Nos.2,3 and 6 in Crl.M.P.No.540 of
2009 in S.C.No.338 of 1996 is not maintainable.
9.In the result, the revision is dismissed and the trial Court is directed
to try the case in S.C.No.338 of 1996, on the file of the Additional Sessions
Court, (Mahila Court), Tirunelveli. on day-to-day basis, without giving any
unnecessary adjournments. If any delaying tactics is played by the accused, it
is open to the prosecution to file a petition for cancellation of bail of the
accused. Consequently, connected miscellaneous petition is also dismissed.
MPK
To
1.The Inspector of Police,
Tisayanvilai Police Station
Tirunelveli District.
2.The Mahila Court,
Tirunelveli.
3.The Assistant Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.