IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 Crl.MC.No. 3233 of 2011() ------------------------- AGAINST THE ORDER DATED IN CMP.19/2011 IN CC.307/2004 of JUDL. FIRST CLASS MAGISTRATE COURT-II,NEYYATTINKARA .................... PETITIONER: ----------- C.MANOHARAN,S/O.CHARALS,M.S.SADANAM, CHINGAMPERAVILA,PLAMOOTTUKADA.P.O. BY ADV. SRI.G.SUDHEER RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. VILASINI,D/O.KAMALAKSHI,DAYA COTTAGE, PULAYANVILA,NELLOORVATTOM DESOM,KULATHOOR VILLAGE, NEYYATTINKARA. R1 BY PUBLIC PROSECUTOR SRI.P.M.SANEER THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JJJ Crl.MC.No. 3233 of 2011() APPENDIX PETITIONER'S ANNEXURES: ANNEXURE-A: COPY OF THE ORDER IN CMP NO.19/2011 IN CC 307/04 OF THE FILE OF JFMC-II,NEYYATTINKARA. ANNEXURE-B: ` COPY OF FIR & FIS IN CRIME NO.179/03 OF POZHIYOOR POLICE STATION. ANNEXURE-C: COPY OF THE REPORT FILED BY POZHIYOOR POLICE STATION CRIME 179/03 ANNEXURE-D: COPY OF THE FINAL REPORT POZHIYOOR POLICE STATION CRIME 179/03 ANNEXURE-E: COPY OF THE COMPLAINANT IN CC.957/04 ANNEXURE-F: COPY OF THE DEPOSITION OF 2ND RESPONDENT. ANNEXURE-G: COPY OF DEPOSITION OF ONE JAYASINGH WAS EXAMINED AS PW2 ABNEXURE-H: COPY OF THE PETITION FILED BY 2ND RESPONDENT/DE-FACTO COMPLAINANT FILED CMP NO.19/11 IN CC.NO.307/04 U/S 319 OF CRPC. ANNEXURE-I: COPY OF THE SUMMONS ISSUED ON PETITIONER IN CC 307/04. RESPONDENT'S ANNEXURES: NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C. No. 3233 of 2011 ------------------------------------------ Dated this the 13th day of October, 2011. O R D E R This petition is filed by the accused who was subsequently impleaded by the learned Magistrate invoking the power under Section 319 Cr.P.C. The learned counsel for the accused would submit that Annexure - A order passed by the learned Magistrate would only show that there is no sufficient material to implead the petitioner as additional accused. At one place it was stated by the Magistrate that there is “prima facie material” showing the involvement of Manoharan (petitioner herein) in the above crime. At another place it was specifically stated by the learned Magistrate as to the overt act of the petitioner that he had removed the towel of the complainant woman and he fisted on her shoulder 4 to 5 times . It is not disputed that the name of the petitioner mentioned in the FI statement given by her was finally deleted by the investigating officer. The evidence given by PW1 is seen corroborated by another Crl.M.C. No. 3233 of 2011 2 eye witness also. It is a case where in the First Information Statement itself definite allegation was made by the complainant as to the specific role of the petitioner herein. According to the prosecution, the petitioner somehow or other managed the police officer to have his name deleted from the final report. That does not mean that even when clear evidence has been adduced by the complainant and one eye witness with regard to the role of the petitioner, especially with regard to the overt act of the petitioner, the court should abstain from invoking power under Section 319 of Cr.P.C. There is sufficient evidence to implead the petitioner as an accused. The learned counsel for the petitioner has cited the decision in Sarojben Aswinkumar Shah v. State of Gujarat reported in 2011(3) KLTSN 121 (C.No.122) SC where it was hled: “(i) The court can exercise the power conferred on it under S.319 of the Code suo motu on an application by someone. (ii) The power conferred under S.319 (1) applies to all courts including the Sessions Court. (iii) The phrase “any person not being the accused” occurring in S.319 does not exclude from its operation an accused who has been released by the police under S.169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression Crl.M.C. No. 3233 of 2011 3 covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court. (iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word 'evidence in S.310 contemplates the evidence of witnesses given in the court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge-sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it. (v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on records which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let it before the court is not enough. The court must also be satisfied that circumstances justify and warrant that other persons be tried with the already arraigned accused. (vi) The court while exercising its power under S.319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the court to the constraints imposed in S.319 (4) that proceedings in respect of newly - added persons shall be commenced afresh from the beginning of the trial. (viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion”. In the light of the evidence available in this case, the aforesaid decision cannot come to the rescue of the petitioner. Crl.M.C. No. 3233 of 2011 4 The challenge against the impleadment of the petitioner as the 2nd accused cannot be sustained. Needless to say that the witnesses who have already been examined have to be recalled and examined again when the petitioner appears in court and proceeds with the trial. N.K. BALAKRISHNAN, JUDGE smvd