ADDITIONAL SPECIAL JUDGE FOR CBI CASES, CHENNAI. Present: Thiru L.S.Sathiyamurthy, M.A.,M.L., XIII Additional Special Judge, C.C.No. 02 of 2016 (RC.No.MA 1/2015 A 0040 SPE/CBI/ACB/Chennai)
[12/24, 15:05] Sekarreporter 1: The accused to whom copies of case records furnished under Section 207 CrPC died before framing of charges.
In such circumstances the court neither acquit nor discharge as the
[12/24, 15:05] Sekarreporter 1: IN THE COURT OF XIII ADDITIONAL SPECIAL JUDGE FOR CBI CASES, CHENNAI.
Present: Thiru L.S.Sathiyamurthy, M.A.,M.L.,
XIII Additional Special Judge,
C.C.No. 02 of 2016
(RC.No.MA 1/2015 A 0040 SPE/CBI/ACB/Chennai)
Tuesday, 21 day of December, 2021
State rep. by
The Inspector of Police, SPE/CBI/ACB/CHENNAI ..Complainant
vs
Shri.S.SRIRAMAN
No.342, 13th Street,
Baba Nagar, Villivakkam, Chennai – 600 049. ..Accused No.1/ Deceased
This case coming on 21.12.2021 before this court for framing of charge in the presence of Mr.Balaji Francis, Special Public Prosecutor for complainant and Mr.B.R.Jayaprakash Narayanan, counsel for the accused nominated by the District Legal Services Authority, Chennai upon hearing their submissions and upon perusing the connected material papers thereto, and having stood over for consideration, this court delivered the following:
ORDER
1.This criminal case has ripen for disposal under a non-trial mode.
2.The following observation about the Code of Criminal Procedure, 1973 by the Hon’ble Supreme Court in a case reported at Ashwin Nanubhai Vyas vs State of Maharashtra (AIR 1967 SC 983) is squarely applicable to the instant case on hand.
Therefore, paragraph 3 of the above decision extracted hereunder.
The Code of Criminal Procedure provides only for the death of an accused or an appellant but does not expressly provide for the death of a complainant. The Code also does not provide for the abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused, in respect of appeals under Sections 411a(2) and 417 and on the death of an appellant in all appeals except an appeal from a sentence of fine. Therefore, what happens on the death of a complainant in a case started on a complaint has to be inferred generally from the provisions of the Code.
3. The seminal question that arise for consideration is that a personsummoned under Section 61 Cr.P.C and furnished with the copies of case records under Section 207 Cr.P.C can be discharged or acquitted before framing of charges, on his death.
4. The facts and history of the litigation which are necessary for the disposal of this case are stated in brief as follows:
The sleuths of the Central Bureau of Investigation had registered case in RC MA1/2015 A 0040 on 29.09.2015 for the offences under Sections 120B r/w 420, 471 IPC and 7, 12, 13 (2) r/w 13(1)(d) and 13 (2) r/w 13(1)(a) of Prevention of Corruption Act, 1988. The said FIR was registered against Shri.S.Sriraman S/o.A.Srinivasan, Technician Grade-I ELF AC 1976, PF No.04907760, LOCO Works, Perambur, Chennai, the accused herein and one Shri.C.Swaminathan, S/o.Chinna Mariyappan, Sellaguda Patti, Barur Post, Pochampalli Taluk,
Krishnagiri District. After the investigation, the final report under Section 173(2) (i) Cr.P.C was filed against both the persons names mentioned in the FIR and one Shri.Aathimani S/o.Periyasami, Pannadur, Krishnagiri. Therefore, there are three accused persons in this case. The learned Principal Special Judge for CBI Cases, Chennai took cognizance against the said three persons and posted the case before this court for disposal according to law.
5. In the meanwhile, Shri.C.Swaminathan (A2) said to have came forward tomake a statement under Section 164 Cr.P.C before a Metropolitan Magistrate Chennai. In pursuance of it, his statement was recorded and as per order in Crl.M.P.No.669 of 2016 dated 25.02.2016 tender of pardon was granted to him under Section 5(2) PC Act, 1988. Subsequently, he was transformed from the status of accused to a witness on the side of the prosecution. Therefore, the accused herein and the said Shri.Aathimani were the two accused person in the case in C.C. 02 of 2016.
6. However, summons were not duly served upon the accused herein, evenafter lapse of three years, but another accused Shri.P.Aathimani was served with the summon and he had appeared regularly before this court.
7. Under the circumstances, as per the order dated 18.02.2020 inCrl.M.P.No.1352 of 2020 dated 18.02.2020. The case against the said Shri.Aathimani(A3) was splitted up for trial according to law and a new C.C.NO.06 of 2020 assigned to it. In the case in C.C.06 of 2020 the erstwhile accused Shri.C.Swaminathan whose name was mentioned in the FIR, treated as an accomplice and examined as a witness on the side of the prosecution. After full trial the judgment in C.C.06 of 2020 was pronounced on 28.10.2021. Thus, the cases against Shri.C.Swaminathan and Shri.P.Aathimani came to an end.
8. The alone accused namely Shri.S.Sriraman who was left without facingtrial, in C.C.02 of 2016 due to non-service of summon was secured and produced before this court on 28.04.2021, on execution of non-bailable warrant issued in C.C.No.03 of 2021 by the IX Additional Court for CBI Cases, Chennai. As he was remanded to judicial custody in the said case in C.C.No.03 of 2020 this court issued a PT warrant under Section 267 Cr.P.C for cause production of the accused in this case. So, the accused later produced before this court on PT warrant and copies of case records also furnished under Section 207 Cr.P.C to him. He made a request for appointment of a counsel to defend the case against him. Therefore, this court in complaince with the provisions of Sections 303 and 304 Cr.P.C facilitated for appointment of a panel lawyer from the District Legal Services Authority (DLSA), Chennai. Accordingly, Thiru.B.R.Jayaprakash Narayanan, Advocate appointed by DLSA Chennai and he entered appearance to defend the accused. Thus, after furnishing of copies of case records, legal aid also extended to the accused, and after providing sufficient time to read the case records and consult with his counsel, this court posted the matter for framing of charges as contemplated in Chapter XVIII of Cr.P.C.
Death of the Accused
9. As stated supra, when the matter was posted for framing of charges, the Superintendent of Central Prison, Puzhal, Chennai has sent letters to this court contending that the accused was admitted as inpatient in the Convict Ward of the Stanley Hospital, Chennai for illness.
10. While so, on 04.12.2021 this court has received letter from theSuperintendent of Prisons, Central Puzhal, Chennai which stated that the accused who was under medical treatment in the Convict Ward, Stanley Hospital, Chennai expired on 01.12.2021 at 20.20hrs. The said letter was recorded and the matter has been posted for production of Death Certificate by the prosecution. The learned Public Prosecutor has filed a memo along with a copy of the Death Certificate issued by the Greater Chennai Corporation which shows that Shri.S.Sriraman died on 01.12.2021. The memo is recorded. Determination and Order
11. This court heard the submissions made by the learned Public Prosecutorand the learned counsel appointed by DLSA, Chennai.
12. The sole accused who appeared / produced on service of summons fromthis court has answered the last and unassaiable summon of the God and passed away on 01.12.2021 leaving behind him, the criminal case initiated by the CBI, at the inquiry stage.
13. The trial of a criminal case commences with the framing of charges.
Section 2 (g) Cr.P.C. defined the term inquiry and it reads as follows:
“inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.
14. A plain reading of the above provision makes it clear that the inquiry andtrial are two distinct process and separate procedures contemplated for them under the Code of Criminal Procedure, 1973.
15. The Hon’ble Supreme Court in Common Cause case (AIR 1997 SC 1539) has referred to the earliest decision reported in Emperor vs Khawaji Nazhir Ahmed (1945) 46 Cri L J 413 in which it is clearly defined that the stage of pre-charge framing in a criminal case, is inquiry.
16. As narrated above, the charges are not yet framed against the accused, inthis case. Therefore, the criminal case on hand has not ripen for trial. The accused died when the matter was sub-judiced in the inquiry stage, before this court.
17. The Code of Criminal Procedure, 1973 a major adjective law applicablefrom the registration of case till the final adjudication including the phases of investigation, inquiry, trial, appeal, revision, review and other incidental process. It consist of the procedures to be followed on the death of a party in a criminal case, in three provisions. They are,
(a) As per sub Section (7) of Section 145 any party dies, to the proceedings ina dispute concerning land or water, which likely to cause breach of peace, the legal representative of the deceased party can be made a party and thereupon continue the inquiry.
(b) In a trial of summon cases by Magistrate under Chapter XX Cr.P.C, subSection (2) of Section 256 may be applied to cases where non-appearance of the complainant due to his death, can acquit the accused, if there is no sufficient cause or reasons shown by the counsel on record for the non-appearance of the complainant.
(c) It is expressly provided in Section 394 Cr.P.C for abatement of appeal onthe death of the accused.
18. Except the said three procedures the Cr.P.C does not consist of any otherprocedures to be followed in case of death of an accused in the inquiry stage, where the charges are neither framed nor read over to him or substance of accusation are made aware to the accused.
19. Under the piquant circumstances, as observed by the Hon’ble SupremeCourt in a case in Ashwin Nanubhai Vyas vs State of Maharashtra cited above, this court has to infer the substance and analogies from the Cr.P.C and dispose the case on hand.
20. In view of the discussions and reasons stated above this court cannotdischarge or acquit the accused on two reasons. Firstly, the accused is no more and no order of discharge can be passed against a dead person. Secondly, the question of acquittal would arise only after framing of charge. In this gridlock stage and unusual circumstances the final report laid under Section 173 (2) (i) Cr.P.C against this accused has become infructuous and will not survive upon the accused, who died prior to framing of charges. (but will survive against the accused person who are alive)
21. In the result, the final report under Section 173 (2) (i) Cr.P.C filed afterinvestigation of case in crime No. RC 40 (A)/2015-CBI, ACB, Chennai is infructuous and inquiry or trial or any other proceedings are not lie on the death of the accused Shri.S.Sriraman.
22. The case is accordingly disposed of.
Dictated to the steno typist, typed by her directly, corrected and pronounced by me in the open court this the 21 day of December, 2021.
XIII Additional Special Judge for CBI Cases
Documents & witnesses on side of the prosecution: NIL
