IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 CRL.REV.PET.NO. 1155 OF 2009() ------------------------------ CC.409/2006 OF JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA .................... REVN. PETITIONER(S): PETITIONERS/ACCUSED: ------------------------------------------------------------------ 1. JAMES K.JOSEPH, KARAKUNNEL HOUSE, KARIMANNOOR POST, THODUPUZHA-685581. 2. PAVIYAN THOMAS, PUNNATHOTTATHIL HOUSE, DO. DO. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI 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 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1155 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of June, 2009 O R D E R -------------- This revision is at the instance of petitioners who as per the impugned order are impleaded as additional accused Nos.2 and 3. 2. On the information given by P.W.1, Deputy Superintendent of Police Police registered crime No.18 of 2006 for offences punishable under Sections 341 and 323 read with 34 of the Indian Penal Code (for short, “the IPC”). After investigation final report was filed against the sole accused, Benny for offences punishable under Secs.341 and 323 of the IPC. De facto complainant was examined as P.W.2 and his witness was examined as P.W.3. Exhibit P1, first information statement allegedly given by P.W.2 was also marked in evidence. At that stage learned magistrate vide the impugned order dated 9.12.2008 directed impleadment of petitioners as additional accused under Section 319 of the Code of Criminal Procedure (for short, “the Code”). Learned magistrate observed that from the evidence of P.Ws.2 and 3 it has come in evidence that petitioners also assaulted P.Ws.2 and 3, they are not already made accused and hence they are required to be impleaded as additional accused under Sec.319 of the CRL. R.P. No.1155 of 2009 -: 2 :- Code. Petitioners who accordingly are impleaded challenge the legality, correctness and propriety of that order. Learned counsel for petitioners contends that P.Ws.2 and 3 had not been cross- examined before the impugned order was passed. It is further contended that learned magistrate has not applied mind on the question whether it appeared from the evidence that petitioners also committed offence as alleged before their impleadment was ordered. 3. I heard learned Public Prosecutor also. 4. Section 319 of the Code permits the court to implead an accused when it appears to such court in the course of any inquiry into, or trial of an offence from the evidence that such person, not already an accused in the case has committed any offence and such person could be tried along with the accused already facing trial. Apex Court has ruled under what circumstances a person could be impleaded under Sec.319 of the Code. In Yuvaraj Ambar Mohite v. State of Maharashtra (2006 (12) SCC 512) it is stated that there should be a possibility of the accused being convicted on the basis of the evidence on record, for his impleadment. In Kailash v. State of Rajasthan (2008 (14) SCC 51) it is held that, CRL. R.P. No.1155 of 2009 -: 3 :- “a glance at these provisions would suggest that during trial it has appear from the evidence of a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried…” Dwelling upon the words “appear from the evidence” it is further stated that, “it is not, therefore, merely against some witnesses have mentioned the name of such persons or that there is some material against that person the discretion under Sec.319 of the Cr.P.C. would be used by the court”. Therefore it is not as if whenever a witness states about the involvement of a person not already an accused the court gets jurisdiction to direct his impleadment under Sec.319 of the Code. On the other hand, it must “appear” to that court from the evidence on record that a person not already an accused has committed offence CRL. R.P. No.1155 of 2009 -: 4 :- and that he should be tried along with accused already facing trial. ‘Evidence’ as referred to in Sec.319 of the Code is such evidence as the court records under Sec.3 of the Evidence Act. Doubt has arisen whether it is within the power of the court to direct impleadment on the strength of a statement of a witness on oath which is not subject to cross-examination. It has been held that “evidence” under Sec.3 of the Evidence Act does not necessarily mean evidence which is tested by cross-examination. But it is seen from the decision of the Apex Court in Hardeep Singh v. State of Punjab (2009 SC 483) that though it is stated that the word ‘evidence’ referred to in Sec.319 of the Code is used in a comprehensive and broad sense which includes evidence given in chief examination also, the question whether 'evidence' as understood in Sec.319 of the Code is one tested by cross-examination has been referred to Larger Bench for a decision. The proper course in my view is to wait till cross-examination of the witness is over to decide whether from such evidence it would appear that a person other than the accused already on record has also committed the offence. Court has to apply its mind and decide whether it appears from evidence that the person sought to be impleaded has committed the offence. Strong suspicion may be CRL. R.P. No.1155 of 2009 -: 5 :- sufficient to frame a charge on the materials produced before the court but such strong suspicion is not sufficient to order impleadment under Sec.319 of the Code. It should appear from the evidence involvement of the persons sought to be impleaded and the court has also to consider the possibility of such evidence leading to conviction of the persons sought to be impleaded. 5. On going through the order under challenge I find lack of application of mind. It is seen that the impleadment is ordered because P.Ws.2 and 3 stated about the involvement of the petitioners. Court has to consider whether evidence on record is sufficient to order impleadment in the light of the principles sated above. That has not been done. Hence the order under challenge cannot be sustained. It is liable to be set aside. Resultantly, this revision is allowed. The order under challenge in the circumstances stated above is set aside. THOMAS P.JOSEPH, JUDGE. vsv