Kerala High Court
Santhosh vs Sub Inspector Of Police on 22 October, 2020
Equivalent citations: AIRONLINE 2020 KER 1042
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 22ND DAY OF OCTOBER 2020 / 30TH ASWINA, 1942
Crl.Rev.Pet.No.297 OF 2007
AGAINST THE ORDER/JUDGMENT IN CC 912/2005 DATED 08-11-2006 OF
JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM
REVISION PETITIONERS/ADDITIONAL ACCUSED:
1 SANTHOSH,
THATTAVAZHI PUTHEN VEETTIL,
ERUVA EAST, PATHIYOOR VILLAGE.
2 SATHEESH,
THATTAVAZHI PUTHEN VEETTIL
ERUVA EAST, PATHIYOOR VILLAGE.
BY ADVS.
SRI. P. SREEKUMAR
SRI. K. S. MANU
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 SUB INSPECTOR OF POLICE,
KAYAMKULAM.
2 THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
SRI. M. S. BREEZ, SR. PP.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
22.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.297 OF 2007
2
ORDER
Dated this the 22nd day of October 2020 PW1, Sri. Babu lodged Ext.P1 First Information Statement alleging commission of offences punishable under Sections 323 and 341 read with Section 34 of the Indian Penal Code (hereinafter referred to as "I.P.C") against four persons including the revision petitioners/accused Nos.3 and 4. After investigation, the Sub Inspector of Police, Kayamkulam submitted final report against the accused 1 and 2 for the offences punishable under Sections 323 and 341 read with Section 34 of I.P.C. The revision petitioners, who were arrayed as accused Nos.3 and 4, in Ext.P1 were found not involved in the case and, accordingly, they were excluded from the final report.
2. The learned Judicial First Class Magistrate Court, Kayamkulam took cognizances of the offences punishable under Sections 323 and 341 read with Section 34 of I.P.C against the accused 1 and 2 and issued summons to them. On the appearance of the accused Nos.1 and 2, copies of Crl.Rev.Pet.No.297 OF 2007 3 records relied on by the prosecution were served to them. Particulars of the offence were read over to which the accused Nos.1 and 2 pleaded not guilty.
3. When the case came up for evidence on the prosecution side, the learned Assistant Public Prosecutor examined PW1 in chief on 08.11.2006. However, cross examination was adjourned for the reasons better known to the learned Magistrate. Thereafter, PW2 was also examined in chief and his cross examination was also deferred. On 08.11.2006, the learned Magistrate passed a cryptic order stating that from the evidence of PW1 and PW2, two other persons namely Sri. Santhosh and Sri. Satheesh were also involved in the occurrence and hence they were impleaded as additional accused Nos.3 and 4 invoking the powers under Section 319 of Cr.P.C.
4. Challenging the aforesaid order additional accused Nos.3 and 4 are before this Court in revision.
5. Heard the learned counsel for the revision petitioners/additional accused Nos.3 and 4 and the learned Senior Public Prosecutor.
6. It is clear from the statement of PW1 that PW1 Crl.Rev.Pet.No.297 OF 2007 4 lodged Ext.P1 statement before the police implicating the revision petitioners/additional accused Nos.3 and 4 as well. Their name and addresses are found in Ext.P1 First Information Statement. Consequently, therefore, the police registered case against the four persons including the revision petitioners/additional accused Nos.3 and 4 for the offences punishable under Sections 323 and 341 read with Section 34 of I.P.C. During investigation, the investigating officer collected the wound certificate from the Doctor who examined the injured immediately after the occurrence. On going through the wound certificate, the Doctor who examined PW1, immediately after the occurrence did not notice any external injuries on him. One of the allegations leveled against the 1 st revision petitioner/additional 3rd accused is that he had fisted on the abdomen of PW1. It is clear that the allegation leveled against the additional 3rd accused is not true to facts. Yet another allegation leveled against the additional 4th accused is that he had wrongfully restrained PW1 at the time of occurrence. During investigation PW3 questioned PW2 also. In his 161 statement, PW2 stated that revision petitioners/additional accused Nos.3 and 4 were not present at Crl.Rev.Pet.No.297 OF 2007 5 the scene of occurrence. Considering the entire materials on record, the investigating officer deleted accused Nos.3 and 4 from the array of the accused.
7. According to the prosecution, the revision petitioners/additional accused Nos.3 and 4 are none other than the son of the 1st accused. The materials on record would show that sufficient materials are not brought on record to satisfy the ingredients of the penal provisions contemplated under Sections 323 and 341 of I.P.C as against the revision petitioners/additional accused Nos.3 and 4. The power under Section 319 of Cr.P.C is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exists for taking action against a person against whom action had not been taken earlier. It appears from Ext.P1 statement that the 1 st informant is eager to implicate the revision petitioners/additional accused Nos.3 and 4 as accused in the case. Unless and until sufficient and cogent reasons are assigned by the court so as to satisfy the ingredients of the provisions, it is not proper on the part of trial court to invoke the provision under Section 319 of Cr.P.C mechanically. There is nothing on record to indicate that Crl.Rev.Pet.No.297 OF 2007 6 evidence let in by PW1 must be convincing one at least for the purpose of exercising extraordinary jurisdiction under Section 319 of the Cr.P.C.
8. In Sarabjit Singh and Others v. State of Punjab and Others [2009 (16) SCC 46], the apex court held that the courts are required to apply stringent tests to invoke the powers under Section 319 of Cr.P.C; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. In Hardeep Singh and others v. State of Punjab and others [2014 (3) SCC 92] a constitution bench of the apex court reiterated the legal principles in Sarabjit Singh's case (supra) and held that the decree of satisfaction for summoning a person under Section 319 of the Cr.P.C would be the same as for framing a charge.
9. Judged by the above standards, this Court is of the view that unless a higher standard for the purpose of forming an opinion to summon a person as accused is laid down, to prove the ingredients of the offence, the jurisdiction under Section 319 of Cr.P.C cannot be invoked. At any rate, this is not an extraordinary case to exercise jurisdiction under Crl.Rev.Pet.No.297 OF 2007 7 Section 319 of Cr.P.C.
This Court, therefore, is of the view that the impugned order cannot be sustained which is set aside accordingly and the matter is remitted to the trial court to proceed with the trial of the case as expeditiously as possible. The impugned order is set aside and the revision petitioners/additional accused Nos.3 and 4 are discharged.
Sd/-
N.ANIL KUMAR JUDGE SPR