Kerala High Court
George vs The Sub Inspector Of Police
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 9TH DAY OF APRIL 2013/19TH CHAITHRA 1935
Crl.MC.No. 3010 of 2010 ( )
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CC.1239/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PUNALUR
CRIME NO.254/2008 OIF EROOR POLICESTATION IN KOLLAM DISTRICT
PETITIONER(S)/ACCUSED:
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GEORGE, S/O.SAMUEL,
CHARALEL PUTHUPARAMBIL VEEDU, KINATTUMUKKUM, AYILARA
AYIRANALLUR VILLAGE, MANALIL.
BY ADV. SRI.B.KRISHNA MANI
RESPONDENTS/COMPLAINANT:
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1. THE SUB INSPECTOR OF POLICE,
YEROOR.
2. THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
ADDL.R3.
SASIDHARAN, BHAMA VILASOM, KUMATTUMUKKU,
AYOLA MURI, ARIYANALLUR VILLAGE.
ADDL.R3 IMPLEADED AS PER ORDER DATED 6.10.2010 IN CRL.MA NO.6171/2010 IN
CRL.MC NO.3010/2010
R1 & R2 BY PUBLIC PROSECUTOR SHRI REJI JOSEPH
R3 BY ADV. SRI.K.ABDUL JAWAD
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-04-2013,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO.3010/2010
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE I TRUE COPY OF THE FIRST INFORMATION REPORT, DATED 5.6.2008
ANNEXURE II TRUE COPY OF THE FINAL REPORT DATED 11.6.2008
ANNEXURE III TRUE COPY OF THE ORDER DATED 19.5.2010 IN CALENDAR CASE
NO.1239/2008 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PUNALUR
//TRUE COPY//
A.HARIPRASAD, J.
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Crl.M.C. No.3010 of 2010
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Dated this the 9th day of April, 2013.
ORDER
Petitioner challenges Annexure-III, order passed by the Judicial First Class Magistrate Court-I, Punalur in C.C.No.1239 of 2008 whereby son of the petitioner is arraigned as 2nd accused by invoking powers under Section 319 of the Code of Criminal Procedure (for short, "Cr.P.C.").
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Annexure-I, first information report shows that the petitioner is implicated in Crime No.254 of 2008 of Eroor Police Station in Kollam District. Annexure-II, final report shows that he is now charge sheeted for offences punishable under Sections 447, 294(b), 323 and 506(1) of the Indian Penal Code (for short, "IPC"). In the course of examination-in-chief of CW1 (injured witness), learned Magistrate passed the order whereby the 2nd accused is arraigned in the case. In order to pass the order, learned Magistrate invoked power under Section 319 Cr.P.C. Reading the said Section would show that where in the course of any enquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused, has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. This provision has been interpreted by the Apex Court in many 2 decisions. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi (AIR 1983 SC 67) it was held in the following words:
"In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfied the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence, the Court can take cognizance against them and try them along with the other accused. But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. ..........."
This decision was followed by the Supreme Court in Sohan Lal and others v. State of Rajasthan (AIR 1990 SC 2158). All these decisions have been considered by a learned Single Judge of this Court in Biju Gopalan and another v. State of Kerala and others (2009 KHC 421). The point decided is the following:
"The impugned order suffers mainly the following two deficiencies:
1) It is admitted that PW1 was only examined in chief and it was before the starting of his cross examination that the aforesaid petition was filed by the Public Prosecutor in charge of the case.
Even though as held by the Apex Court in Rakesh 3 and Another v. State of Haryana, 2001 KHC 666:
2001 (6) SCC 248: 2001 (3) KLT 70 : 2001 (2) KLJ NOC 52 : AIR 2001 SC 2521 : 2001 SCC (Cri) 1090 the Court is competent to exercise the power under S.319 CrPC even before the cross examination of a witness, this Court in Aboobacker Musaliar v. Inspector of Police and Others, 2005 KHC 1332: ILR 2005(4) Ker.200 : 2005(2) KLD 301 held that the said power which has to be exercised sparingly should be pressed into service only after the cross examination of the witness concerned from whose evidence the complicity of the person to be added as an additional accused is revealed. In fact, in a subsequent decision of the Apex Court in Mohd. Shafi v. Mohd. Rafiq and Another, 2007 KHC 3355 : AIR 2007 SC 1899 : JT 2007 (5) SC 562 the Apex Court has also stressed the desirability of invoking the power under S.319 CrPC only after the cross examination of the witness concerned. Hence, the learned Chief Judicial Magistrate should have waited till the cross examination of PW 1 was over to decide whether the power under S.319 CrPC should be exercised."
3. Considering the above legal provision, I find that the impugned order suffers from legal infirmity. Hence it has to be corrected by invoking jurisdiction under Section 482 Cr.P.C.
In the result, petition is allowed. Annexure-III, order is set aside. It is made clear that if the Judicial First Class Magistrate after cross examination of CW1 finds legal reasons to implicate any other person as an accused, the 4 observations made in this order will not be a fetter for doing so.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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