Kerala High Court
Velayudhan.V.N vs State Of Kerala on 11 September, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA, 1942
Crl.Rev.Pet.No.3019 OF 2007
ST 1008/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOZHIKODE
REVISION PETITIONER/S:
VELAYUDHAN.V.N., AGED 57
S/O.NARAYANAN, VADAKKEVEEDU- LAKSHMI GOVINDAM,,
P.O.SOUTH VELLARAPPILLY, THEKKUMBHAGAM,,
THIRUVAIRANIKKULAM.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.ANIL K.MOHAMMED
SRI.R.ANIL
SRI.DELVIN JACOB MATHEWS
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE DRGUS INSPECTOR,, KOZHIKODE,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
2 MS.FAIR PHARMA, SHAMEEM
C.C.NO.42/1607, KOMPARA, BROADWAY, ERNAKULAM,
KOCHI, REP.BY THE SOLE PROPRIETOR T.A.MAJEED,
A.113/43, ASHOKA APARTMENTS, MARINE DRIVE,
ERNAKULAM, KOCHI-31.
R1 BY ADV. PUBLIC PROSECUTOR
R1 BY ADV. SRI.A.K.JAYASANKAR NAMBIAR
R1 BY ADV. SRI.E.K.NANDAKUMAR
R1 BY ADV. SRI.A.M.SHAFFIQUE SR.
OTHER PRESENT:
SR.PP.M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 11.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.RP No.3019/2007
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ORDER
Dated this the 11th day of September, 2020 The revision petitioner was the Secretary of the Trust Committee of the Thiruvairanikkulam Mahadeva Temple (hereinafter referred to as, "Temple") during the year, 1999. In connection with the annual festival of the year 1999, which was celebrated from 22.12.1999 to 02.01.2000, a full page special supplement was published in the Mathrubhumi daily dated 21.12.1999. One of the advertisements in the said special supplement was of M/s Fair Pharma, Broadway, Ernakulam about their product "Cholesterol QR" and its efficacy in curing heart disease. The Drug Inspector of Kozhikode, on reading the above advertisement as an advertisement defined under Section 2(a) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (hereinafter Crl.RP No.3019/2007 ..3..
referred to as, "Act") and on finding that the claim of the manufacturers is in violation of the provisions contemplated under Section 3(d) of the Act, filed a complaint against M/s Fair Pharma, represented by its sole proprietor, Sri.T.A.Majeed, who is the 2nd respondent in this revision. The learned Chief Judicial Magistrate, Kozhikode, to whom the complaint was presented, registered the case as ST No. 125 of 2001 and made over to the Judicial First Class Magistrate Court-I, Kozhikode for trial and disposal. The learned magistrate re-numbered the case as ST No. 1008 of 2003 for the offence punishable under Section 7(a) of the Act.
2. During the course of the trial, the revision petitioner was examined on 19.09.2006 as PW5. When he was examined before the trial court, he admitted that he was the Secretary of the Temple Trust Committee during the year, 1999, Crl.RP No.3019/2007 ..4..
and that the advertisement received by the Publicity Committee had been forwarded for being published in the special supplement of Mathrubhumi daily. He further stated that he had signed Ext.P7 letter in his capacity as the Secretary of the Temple Trust Committee instructing the Mathrubumi daily to issue a special supplement with advertisements. He further stated that the cheque for payment towards publication of the special supplement in Mathrubhumi was issued from the account of the Temple Committee with the Service Co-operative Bank, Thekkumbhagom. According to him, the cost of publication of the advertisement was given in cheque by M/s Fair Pharma. The revision petitioner further maintained that no amount was spent by the Temple Committee for publication of advertisement and that the amount required for each advertisement was spent by the respective Crl.RP No.3019/2007 ..5..
individuals or firms, who gave advertisements.
3. About five months after the date of his examination as PW5, the court below passed Annexure B order directing him to appear before the court below as an accused invoking the powers under Section 319 of the Code of Criminal Procedure (hereinafter referred to as, "Cr.P.C.").
4. Heard the learned counsel for the revision petitioner and Sri.M.S.Breez, the learned Public Prosecutor.
5. Going by the impugned order, it is clear that the trial court has relied on and acted upon the answers, which were elicited from the revision petitioner when he was examined as PW5, to prosecute him as the 2nd accused in this case. The learned counsel for the revision petition contended that in violation of the proviso to Section 132 of the Evidence Act, the court below prosecuted the revision Crl.RP No.3019/2007 ..6..
petitioner. The learned counsel for the revision petitioner further contended that the court below travelled beyond the scope of the complaint and impleaded the revision petitioner as an accused invoking the powers under Section 319 of the Cr.P.C.
6. It is settled principle of law that the power under Section 319 of the Cr.P.C. is an extraordinary power conferred on the court and should be exercised sparingly and only if compelling reasons exist for taking cognizance, that arise only on evidence recorded in the course of any inquiry or trial. For the said purpose, there should be evidence to prove that some other persons, who are not arraigned as accused in the case, have committed an offence, for which, such persons could be tried along with the arraigned accused, which is not at all available in this case. Hence, it is mandatory on the part of Crl.RP No.3019/2007 ..7..
the prosecution to prove the evidence collected or adduced in the course of any inquiry into, or trial of, an offence. To invoke the power under Section 319 of the Cr.P.C., the court should be prima facie satisfied that such person committed any offence, for which he can be tried with the other accused. Going by the impugned order, there is no finding as such. On the other hand, the oral testimony of PW5, who is the revision petitioner, would show that he has no connection or acquaintance with M/s Fair Pharma or its proprietor and that he has no role in collecting the advertisement of M/s Fair Pharma and that the said advertisement was collected from the party by the Publicity Committee of the Temple Trust Committee in connection with the annual festival of the Temple. In fact, the complainant has no intention to prosecute PW5 as an accused in Crl.RP No.3019/2007 ..8..
this case.
7. PW1, the complainant, has no grievance against PW5. His statement was not recorded during the course of the inquiry. He was summoned as a witness in his capacity as Secretary of the Trust Committee of the Temple during the year, 1999. The Temple Trust Committee is a non-statutory and fluctuating body. The complainant has not impleaded the Temple Trust Committee as an accused. The revision petitioner was only the Secretary of the Temple Trust Committee during the year, 1999. The oral testimony of PW5 does not show that he has any involvement in the collection and canvassing of the advertisement.
8. Further, the court below erroneously acted upon the evidence let in by PW5 when he has examined before the trial court. Section 132 of the Indian Evidence Act clearly provides that no such answers, which a witness was Crl.RP No.3019/2007 ..9..
compelled to give, should be subject him to any arrest or prosecution or be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answers.
9. Annexure B order would show that the advertisement of M/s Fair Pharma was published in Ext.P5 by the revision petitioner. The finding of the trial court in Annexure B order is against the prosecution case and is also against the allegation in the complaint and evidence on record. Hence, the impugned order is illegal.
In the result, this revision petition stands allowed. Annexure B order dated 14.02.2007 in ST No. 1008 of 2003 of the Judicial First Class Magistrate Court-I, Kozhikode stands set aside. The learned magistrate is directed to expedite the trial of the case and dispose of the case on merits in accordance with law. Crl.RP No.3019/2007
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Pending interim applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR JUDGE Bka/11.09.2020