High Court of Madras

Murugan Vs. State

MANU/TN/6408/2018

29.10.2018

Criminal

Accused is entitled to get discharge, if there is no material on record to attract ingredients of offences alleged

The Petitioner herein has filed Petition under Section 227 of Code of Criminal Procedure, 1973 (CrPC) praying to discharge him from case pending on the file of the learned Assistant Sessions Judge. Moreover the case of the Petitioner is that, he is a practising Advocate and he has been impleaded in the case only on the strength of the confession statement given by the First Accused, in which, the First Accused alleged to have confessed during the police custody that, the Petitioner handed DVD player, tape recorder, modem and some pamphlets and booklets to him at Madurai Mattuthavani Bus stand for the use of banned CPI (Maoist) party.

The law is well settled that if there was no materials on record to attract ingredients of the offences alleged, the Accused is entitled to get discharge in the case. In the case on hand, admittedly, the Petitioner was not named in the FIR. He was arrayed as Accused (A5) at a later stage based on the confession statement of the First Accused.

In Mohd. Chand Hussain v. State of Maharashtra, it has been held that the statement of the Accused leading to the discovery cannot be used as against the Co-Accused. It has also been held that, informatory statement amounting to confession of the Accused cannot be used against the Co-Accused with the aid of Section 30 of the Indian Evidence Act, 1872.

On the facts and material available on record, in the instant case, the Court has to consider whether there was subsequent material available on record so as to implicate the Petitioner in this case. However, it is the duty of the prosecution to establish prima facie case against the Petitioner based on the materials since he was subsequently arrayed as Accused in this case. Admittedly, except the confession statement given by the Co-Accused/A1, there was no other material available against the Petitioner/A5 and there was no identification parade conducted and the Petitioner was not identified by any eyewitness.

The Petitioner is a practising Advocate and he was appearing for the Maoists. Appearing for a Maoist is not a crime. On the other hand, if a Maoist accused of an offence seeks the professional assistance of a lawyer, it is his duty to defend. As a lawyer, the Petitioner is said to have contacted the Accused persons and during meeting some conversations took place between them. For example, meeting of an Accused person in the prison by a lawyer, would not mean that there was criminal conspiracy between them.

Absolutely, there was no materials to show that, the Petitioner is a member of terrorist gang or terrorist organization or involved in terrorist Act to constitute the offence said to have been committed by him in the case on hand. In order to implicate the Petitioner subsequently as Accused in the case, there must be materials to show that there is prima facie case made out against him. In the instant case, the learned Assistant Sessions Judge erred in dismissing the discharge petition filed by the Petitioner. Accordingly, the Petitioner is entitled to get discharge.

Relevant

Mohd. Chand Hussain v. State of Maharashtra, reported in MANU/MH/0279/1979
: 1980 Crl. L.J. 860, P. Vijayan vs. State of Kerala and Anr. MANU/SC/0058/2010

Tags : Proceedings Discharge Grant

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