IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 CRL.REV.PET.NO. 1671 OF 2007() -------------------------------------------- SC.241/2005 OF ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA .................... REVN. PETITIONER(S): PW7 ---------------------------------------- ANNAKKUTTY, W/O AVIRA, AGED 78 YEARS, MOOLECHALIL HOUSE, VADAKKEKARA MURI, VADASSERIKKARA, RANNI TALUK. BY ADV. SMT.R.BINDU SASTHAMANGALAM SRI.PRASANTH M.P RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1671 of 2007 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of July, 2009 O R D E R -------------- Impleading of petitioner, prosecution witness No.7 as additional accused is challenged in this revision. 2. Short facts of the case are: Getting information about illicit distilling of arrack in the smoke house situated in about 3.5 acres of rubber estate, police party consisting of P.Ws.5, 8, 9 and 13 conducted search in the said smoke house on 18.8.1999 at about 5.45 p.m. According to P.Ws.5, 8, 9 and 13, accused (one Mohanan) was seen running away from the smoke house. Police seized the contraband as per search list (Ext.P1). On the premise that the smoke house and rubber estate belonged to one Avirah a case was registered against the said Avirah and Mohanan (accused Nos.1 and 2, respectively) for offences punishable under Sections 8(1) and 55(b) and (g) of the Abkari Act. P.W11, Circle Inspector conducted investigation. According to him in the course of investigation on 29.9.1999 petitioner produced a rent deed allegedly executed by Mohanan in her favour for taking the smoke house on rent. Investigating officer found the said information to be correct, deleted the husband of petitioner from the array of accused and proceeded against accused CRL. R.P. No.1671 of 2007 -: 2 :- Mohanan. After completion of investigation P.W.12 submitted final report alleging that accused Mohanan who was in possession of the smoke house has in violation of the rent deed conducted illicit distilling of arrack. Mohanan is said to have committed the offence as aforesaid. In the meantime the rent deed which the petitioner had produced before P.W11 was got back under kaichit/receipt as the case may be. Petitioner was examined as P.W.7 to prove the prosecution case to show that the smoke house was rented out to Mohanan and the latter was in possession thereof. Prosecution examined P.Ws.1 to 6 to prove the alleged incident. They did not support prosecution. When examined as P.W.7, petitioner denied that there was any rent deed executed in her favour by Mohanan and that she produced the same before P.W.1 or got it released to her. That was followed by examination of P.Ws.8 to 13. P.Ws.8, 9 and 13 spoke to the search and seizure. P.W.10 registered the case. P.W.11 spoke to the steps taken by him in the investigation of the case. Learned Additional Sessions Judge thought that there is sufficient evidence to proceed against petitioner as she is the person in possession of the smoke house and impleaded her as additional accused invoking the power under Section 319 of the Code of Criminal Procedure (for short, the CRL. R.P. No.1671 of 2007 -: 3 :- Code”). It is that order which is challenged in this revision. Learned counsel for petitioner contends that evidence given by petitioner as P.W.7 could not have been used to prosecute her. It is also contended that it is only when circumstances made it imperative and it appeared from the evidence on record that petitioner has committed the offence that impleadment is warranted. Learned counsel placed reliance on the decision in Brindaban Das v. State of West Bengal (2009) 3 SCC 329). 3. So far as impleadment under Sec.319 of the Code is concerned it is trite law that impleadment is permissible only when it appears from the evidence that the person sought to be impleaded has also committed an offence for which he could be tried along with the accused already on record. Binding authorities on the point say that evidence required for impleadment under Sec.319 of the Code must be sufficient enough for the court to reach the prima facie satisfaction that there is the possibility of the person sought to be impleaded being convicted on the evidence on record. For the purpose of framing charge it may be sufficient that there are sufficient grounds to proceed against the person charged. But for the purpose of impleadment there must be such evidence from which the court could reach the CRL. R.P. No.1671 of 2007 -: 4 :- satisfaction that there is possibility of the person to be impleaded being convicted for the offence. In this case impleadment is based on the evidence of petitioner as P.W.7 as well as seen from the order under challenge. So far as evidence of petitioner as P.W.7 is concerned, proviso to Section 132 of the Evidence Act (for short, “the Act”) creates a bar in that any answer which the witness was compelled to give shall not subject him to arrest or prosecution or be proved against him in any criminal proceeding except a prosecution for giving false evidence. Commending on the word “compelled” a Division Bench of this Court in Gangadharan v. S.I. of Police (1989 (2) KLT 448) stated that it is immaterial whether witness has objected to the questions put to him in the course of examination and that protection of the proviso is available to a witness whose presence is required by the court either by issuance of summons or by other means. Similar view was taken in Kunhappan v. Sate of Kerala (1987 (2) KLT 222) as well. In this case it is not disputed that petitioner was cited and summoned by the prosecution as witness and examined accordingly. Therefore notwithstanding that there was no objection to the questions put to her, evidence given by her cannot be used against her except of course for the purpose of proceeding CRL. R.P. No.1671 of 2007 -: 5 :- against the offence of perjury in view of Sec. 132 of the Act. Therefore in considering the issue of impleadment evidence of petitioner is to be eschewed . 4. Then the question is whether otherwise there is material to reach the prima facie satisfaction that there is possibility of the petitioner being convicted for the offence punishable under Secs.8(1) and 55(g) and (b) or any other provision of the Abkari Act. The case of prosecution throughout and still is that the smoke house where the alleged distilling of arrack was conducted by accused Mohanan was in his possession during the relevant time on the strength of the rent deed allegedly executed by petitioner. It is the further case of prosecution that the alleged distilling was done by accused Mohanan without the consent or knowledge of petitioner. None of the prosecution witnesses have stated (evidence of petitioner as P.W.7 excluded) that the land in question or smoke house was in the possession of the petitioner. Nor has any of the prosecution witness stated that petitioner has conducted illicit distilling on her own or in connivance with anybody else. If that be so it was not possible for the court to reach a prima facie satisfaction with the available evidence that petitioner has committed any offence punishable under the CRL. R.P. No.1671 of 2007 -: 6 :- Abkari Act warranting her impleadment. As such on the materials now available impleadment of petitioner cannot be sustained. 5. In the light of what I have stated above the order under challenge cannot be sustained. The same is only to be set aside. Resultantly, this revision petition succeeds. Order under challenge is set aside. THOMAS P.JOSEPH, JUDGE. vsv