Kerala High Court
K.K.Jayachanran vs The State Of Kerala on 22 August, 2019
Equivalent citations: AIRONLINE 2019 KER 309, 2019 CRI LJ 4591
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941
Crl.Rev.Pet.No.17 OF 2017
AGAINST THE ORDER IN SC 68/2016 DATED 24-12-2016 OF IV ADDITIONAL
SESSIONS COURT, THODUPUZHA
CRIME NO.1196/2012 OF Thodupuzha Police Station, Idukki
REVISION PETITIONER/ADDL.ACCUSED 5 & 6 :
1 K.K.JAYACHANRAN, S/O.LAKSHMANAN,
KUNNATHU HOUSE, KUNCHITHANNY P.O.,
KUNCHITHANNY VILLAGE, DEVIKULAM TALUK,
IDUKKI, PIN - 685 565.
2 A.K.DAMODARAN, S/O.KUTTAN,
ANDOOKUNNEL HOUSE, RAJAKKAD KARA,
RAJAKKAD VILLAGE, IDUKKI,
RAJAKKAD POLICE STATION, UDUMBENCHOLA TALUK,
PIN: 685 566.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.AJAY BEN JOSE
SRI.R.GITHESH
SRI.MANJUNATH MENON
SRI.P.PRIJITH
SRI.M.K.THANKAPPAN
SRI.THOMAS P.KURUVILLA
RESPONDENT/COMPLAINANT :
1 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNKULAM,
PIN: 682 031.
Crl.R.P.No.17/17 & Crl.M.C.No.3789/19
2
2 *ADDNL R2-
GEORGE.A.P,
S/O PATHROSE, AGED 55 YEARS,
ADVOCATE, RESIDING AT
ANCHERIL HOUSE, NEDUMKANDOM.P.O,
IDUKKI
IS IMPLEADED AS PER ORDER DATED 10/8/18 IN CRMA
407/2017 IN CRL.R.P.17/2017.
3 *ADDNL R3-
A.D.SANTHOSHKUMAR,
AGED 48 YEARS, S/O LATE A.K.DAMODARAN,
ANDOOKUNNEL HOUSE, RAJAKKAD KARA,
RAJAKKAD VILLAGE, IDUKKI DISTRICT,
UDUMBENCHOLA TALUK-685566.
IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 22.7.19
IN CRMA 1/19 IN CRL.R.P.17/17.
R1 BY SRI.SUMAN CHAKRAVARTHY, SR. GOVT.PLEADER
R1 BY ADV. SRI.SIBY CHENAPPADY
R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
R2 BY ADV. SRI.BECHU KURIAN THOMAS SR.
R2 BY ADV. SRI.GEORGE A.CHERIAN
R3 BY ADV. SRI.SHIJU VARGHESE
OTHER PRESENT:
SRI SURESH BABU THOMAS-ADGP, SRI SANTHOSH PETER-SR
PP, SRI S SREEKUMAR SR ADV, SRI BECHU KURIAN
THOMAS-SR ADV
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 14.08.2019, ALONG WITH Crl.MC.3789/2019(C), THE COURT ON
22.08.2019 PASSED THE FOLLOWING:
Crl.R.P.No.17/17 & Crl.M.C.No.3789/19
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941
Crl.MC.No.3789 OF 2019(C)
AGAINST THE ORDER IN SC 68/2016 DATED 24-12-2016 OF IV
ADDITIONAL SESSIONS COURT, THODUPUZHA
CRIME NO.118/1982 OF Santhanpara Police Station, Idukki
PETITIONER/LEGAL HEIR OF THE ADDITIONAL RESPONDENT NO.6 :
SAROJINI DHAMODHARAN,
AGED 77 YEARS,
W/O.A.K.DAMODHARAN,
ANDOOKUNNEL HOUSE,
RAJAKKAD P.O.,
IDUKKI- 688566.
BY ADVS.
SRI.M.T.SURESHKUMAR
SRI.R.RANJITH
SRI.P.R.JAYASANKAR
SMT.MANJUSHA K
RESPONDENT/STATE :
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN- 682031.
BY SRI.SURESH BABU THOMAS, ADDL.DIRECTOR GENERAL OF
PROSECUTION
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
14.08.2019, ALONG WITH Crl.Rev.Pet.17/2017, THE COURT ON
22.8.2019 PASSED THE FOLLOWING:
Crl.R.P.No.17/17 & Crl.M.C.No.3789/19
4
"CR"
ORDER
[ Crl.Rev.Pet.17/2017, Crl.MC.3789/2019 ] Dated this the 22nd day of August 2019 An order passed by the learned 4 th Additional Sessions Judge, Thodupuzha on Crl.M.P.No.3178/2016 in S.C.No.68 of 2016 is under challenge in these proceedings. The prosecution in the said case is being conducted by a Special Public Prosecutor appointed by the Government. Cognizance originally was taken in the Court of Session against four accused. The Special Public Prosecutor made the said application to "implead" three more persons as additional accused, and he made the request under Sections 193 and 226 of the Code of Criminal Procedure(Cr.P.C.). The said application was heard by the learned trial Judge along with other applications filed by the accused for discharge. By the common order dated 24.12.2016, the learned trial Judge allowed the request of the learned Special Public Prosecutor, and accordingly "impleaded" three persons as additional accused Nos.5 to 7 in the case. The persons added as accused Nos.5 and 6 have brought Crl.R.P.No.17 of 2017, and the petitioner in Crl.R.P.No.17/17 & Crl.M.C.No.3789/19 5 Crl.M.C.No.3789 of 2019 is the wife of the additional accused No.6 who died after the filing of the revision. Ofcourse, the son of the deceased 6th accused is a party in Crl.R.P.No.17 of 2017 as the additional third respondent. However, the wife of the deceased brought a separate application as Crl.M.C.No.3789 of 2019. In fact Crl.M.C.No.3789 of 2019 is liable to be closed because, the charge against the additional 6th accused already stands abated on death.
2. The order of the trial court is being challenged by the supplemental accused on the important legal ground that persons cannot be added as accused under Section 193 Cr.P.C., and that such a procedure is possible only under Section 319 Cr.P.C. The case of the revision petitioners is that instead of waiting for the right stage under Section 319 Cr.P.C., the trial court illegally acted under Section 193 Cr.P.C. Ofcourse, it is true that the persons added as accused are not the accused in the final report. They are not the accused in the FIR also. It appears that on the basis of the some stray statements given by some witnesses under Section 161 Cr.P.C., the Special Public Prosecutor made application under Section 193 Cr.P.C., and the learned trial Judge allowed the request in view of the decision of the Honourable Supreme Court in Dharam Pal and others v.State of Haryana and another [(2014) 3 Supreme Court Cases 306].
3. The legal question for resolution in the revision petition is whether persons can be added as accused in a sessions Crl.R.P.No.17/17 & Crl.M.C.No.3789/19 6 case under Section 193 Cr.P.C. after the stage of cognizance is over, or whether such a process of "impleading", as is done in civil cases, is possible under Section 193 Cr.P.C. Ofcourse, it is well settled that at the time of acting upon the final report, or at the time of taking cognizance on the basis of the final report received in the Court of Session on committal under Section 209 Cr.P.C., the Court of Session can issue summons even to those persons who are not sent up for trial by the prosecuting agency, provided the final report and the supporting documents contain some material as against them also for a prosecution. In this case, the stage under Section 319 Cr.P.C. is yet to come.
4. In kishun Singh and others v. State of Bihar [(1993)2 Supreme Court Cases 16], the Honourable Supreme Court laid down the law as regards the powers of the Court of Session under Section 193 Cr.P.C., that at the time of taking cognizance on the final report, the Court of Session can issue summons to others also as accused who are not sent up for trial in the final report. In paragraph 16 of the judgment, the Honourable Supreme Court held thus;
"16. We have already indicated earlier from the ratio of this Court's decisions in the cases of Raghubans Dubey and Hareram that once the court takes cognizance of the offence (not the offender) it becomes the court's duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the court's duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance. We have also pointed out the difference in the language of Section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any Crl.R.P.No.17/17 & Crl.M.C.No.3789/19 7 offence as a court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record."
5. In 1998, the Honourable Supreme Court held otherwise that to add persons as accused, the Court will have to wait till the stage under Section 319 Cr.P.C. comes. It was so decided by a three- Judge Bench in Ranjit Singh v. State of Punjab [(1998) 7 Supreme Court Cases 149]. In paragraph 20 of the judgment, the Honourable Supreme Court held thus;
"20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Ofcourse it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."
6. The issue as regards the powers to add accused Under Section 193 Cr.P.C. again came up before the Honourable Supreme Court in 2014. In Dharam Pal's case (cited Supra), the Honourable Supreme Court (5 Judge Bench) overruled the decision of the three- Judge Bench in Ranjit Singh's case, and approved the decision in Crl.R.P.No.17/17 & Crl.M.C.No.3789/19 8 Kishun Singh's case (cited Supra). In paragraph 40 of the judgment, the Honourable Supreme Court held thus in Dharam Pal's case;
"40. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh case that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein."
7. Now we have to understand the spirit of the judgments of the Honourable Supreme Court in Kishun Singh's case and Dharam Pal's case. Referring to the decision in Dharam Pal's case another five-Judge Bench of the Honourable Supreme Court observed in Hardeep Singh v. State of Punjab [2014(1) KLT 336 (SC)] that the Sessions Court can also exercise its jurisdiction, and summon a person as an accused in case his name appears in column 2 of the charge sheet, and once the case has been committed to the Court of Session. The Honourable Supreme Court also clarified that a person whose name does not appear even in the FIR or in the charge sheet, or whose name appears in the FIR, and not in the main part of the charge sheet but in column 2, and has not been summoned as an accused in exercise of the powers under Section 193 Cr.P.C., can still be summoned by the Court, provided the Court is satisfied that the conditions provided in the provision stand fulfilled.
8. A careful reading of the decisions of the Honourable Supreme Court on the point will show that the powers under Section Crl.R.P.No.17/17 & Crl.M.C.No.3789/19 9 193 Cr.P.C. to add accused cannot be exercised at any stage after cognizance. The spirit of the decision of the Honourable Supreme Court is that upon committal, or when the Court of Session considers the prosecution records and the final report for the purpose of taking cognizance under Section 193 Cr.P.C., the Court can issue summons to other persons also as accused who are not sent up for trial, or who are not shown as accused in the final report. Cognizance is not a continuing or unending process. At the time of taking cognizance, or at the time when the Court of Session examines the final report and other materials received on committal, the Court can examine the materials to find out whether any other person than those sent up for trial is involved in the alleged act of crime. If the prosecution records contain materials against any such person, or indicating that somebody other than those sent up for trial is involved in the act of offence, the Court can very well summon such person also while issuing summons to the persons mentioned in the final report. The Honourable Supreme Court has clarified that what is committed to the Court of Session is not the accused as was the position prior to the 1973 code, and that what is actually committed is the case. That is why the Honourable Supreme Court held that the powers of the Sessions Court under Section 193 Cr.P.C. are not confined to taking cognizance only as against those sent up for trial. Thus it is quite clear from the decisions that for adding a person as accused under Section 193 Cr.P.C., there must be some Crl.R.P.No.17/17 & Crl.M.C.No.3789/19 10 material as against him. In this case, the Special Public Prosecutor made application simply on the basis of some stray statements made by some witnesses under Section 161 Cr.P.C. Apart from such statements, there is nothing against those persons. In such cases, where the prosecution does not have anything else, or anything other than some stray statements made under Section 161 Cr.P.C., it would be safe to wait till the stage under Section 319 Cr.P.C. comes. In the absence of strong materials indicating the involvement and complicity of others not sent up for trial, it would be unsafe and unjust to exercise the powers under Section 193 Cr.P.C., and to issue summons to such persons. The learned Special Public Prosecutor could have waited till the stage under Section 319 Cr.P.C.
9. On an examination of the various decisions of the Honourable Supreme Court, I find that the spirit of the decisions, or what the Honourable Supreme Court meant is that as part of taking cognizance under Section 193 Cr.P.C. on the basis of the final report and other materials submitted by the prosecution, the Court of Session can issue summons to others also as additional accused, if there are materials as against them. This does not mean that it can be resorted to at any stage after taking cognizance. As already stated, cognizance cannot be a continuing or unending process. It is something done once on the basis of the materials produced before the Court. I find that the decision of the Honourable Supreme Court in Dharam Pal's Crl.R.P.No.17/17 & Crl.M.C.No.3789/19 11 case was wrongly applied by the learned trial Judge to add persons as accused. Persons cannot be simply "impleaded" as accused, as could be done in civil cases. Such "impleading" is unknown to criminal law, and it would be against the principles of criminal justice. Persons can be added as accused in a sessions case only under Section 319 Cr.P.C.. and in some cases, under Section 193 Cr.P.C. also, if definite materials are there against such persons. In this case, I find that instead of waiting till the stage of the procedure under Section 319 Cr.P.C., the Special Public Prosecutor, in a haste, made application under Section 193 Cr.P.C., and without understanding the spirit of the decisions of the Honourable Supreme Court, the learned trial Judge allowed the request. I find that the impugend order is liable to be set aside. This order will not stand in the way of the trial court exercising the powers under Section 319 Cr.P.C. in due course.
In the result, Crl.M.C.No.3789/2019 is closed, and Crl.R.P.No.17/2017 is allowed. Accordingly, the order of the trial court dated 24.12.2016 in Crl.M.P.No.3178/2016 will stand set aside. It is made clear that this order will not stand in the way of the trial court exercising the powers under Section 319 Cr.P.C. in due course.
Sd/-
rkj P.UBAID, JUDGE Crl.R.P.No.17/17 & Crl.M.C.No.3789/19 12 APPENDIX OF Crl.MC 3789/2019 PETITIONER'S/S EXHIBITS: ANNEXURE A1 A TRUE COPY OF DEATH CERTIFICATE OF A.K.DAMODARAN DATED 11.09.2018. ANNEXURE A2 TRUE COPY OF FIR IN CRIME NO.118 OF 1982 OF SANTHANPARA POLICE STATION DATED 13.11.1982. ANNEXURE A3 TRUE COPY OF JUDGMENT DATED 21.03.1986 IN SC.NO.58 OF 1985 ON THE FILE OF ADDL.SESSION'S JUDGE, THODUPUZHA. ANNEXURE A4 TRUE COPY OF THE JUDGMENT DATED 24.01.1990 IN CRL.A.NO.411 OF 1986 OF HON'BLE HIGH COURT OF KERALA. ANNEXURE A5 TRUE COPY OF FINAL REPORT DATED 26.04.2013 IN CRIME NO.1196 OF 2012 FILED BEFORE JFCM, THODUPUZHA. ANNEXURE A6 TRUE COPY OF THE ORDER DATED 31.05.2012 PASSED AS COMMON ORDER IN CRL.M.P.NO.2604 OF 2012 AND CRL M.P.NO.2605 OF 2012 BY THE JFCM NEDUMGANDAM. ANNEXURE A7 TRUE COPY OF FINAL REPORT DATED 08.11.2015 IN CRIME NO.118 OF 1982 OF SANTHANPARA P.S. ANNEXURE A8 TRUE COPY OF ORDER IN CRL.M.A.NO.5368 OF 2012 IN CRL.APPEAL NO.2010 OF 2009 DATED 24.11.2014 BY THE HON'BLE HIGH COURT OF KERALA. ANNEXURE A9 TRUE COPY OF ORDER IN SLP(CRL)NO.9817/9818 OF 2014 DATED 06.01.2015 BY THE HON'BLE SUPREME COURT. ANNEXURE A10 TRUE COPY OF THE COMMON ORDER IN CRL.M.P.NO.3178 OF 2016 AND CRL.M.P.NO.1225 OF 2016 IN S.C.NO.68 OF 2016 DATED 24.12.2016 ADDITIONAL SESSIONS JUDGE-IV, THODUPUZHA.