IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 Crl.MC.No. 1248 of 2011() ------------------------------------ C.M.P. NO.10634/2010 IN CC.586/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... PETITIONER/COMPLAINANT ------------------------------------------ T.K. GOPINANDAN, AGED 69 YEARS, S/O.KUNJIRAMAN, SURABIYIL HOUSE, NEDUMPURAM. BY ADV. SRI.E.D.GEORGE RESPONDENTS/5TH ACCUSED & STATE ------------------------------------------------------------ 1. SHYJI, KUNNATH HOUSE, RAGAMALIKA, NEDUMPURAM-689 643. 2. SUB INSPECTOR OF POLICE, PULIKEEZHU, PATHANAMTHITTA-689 645. R2 BY PUBLIC PROSECUTOR MR.V. MANU. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs Crl.MC.No. 1248 of 2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE 1: COPY OF THE CRIME NO.48/04 REGISTERED BY THE 2ND RESPONDENT, SUBSEQUENTLY NUMBERED AS C.C. NO.586/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA. ANNEXURE II: COPY OF THE DEPOSITION OF PETITIONER. ANNEXURE III: COPY OF THE ORDER OF THE 1ST CLASS JUDICIAL MAGISTRATE, THIRUVALLA IN C.M.P. NO.10634/2010 IN C.C. NO.586/2004. RESPONDENTS ANNEXURES: NIL //TRUE COPY// P.S. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1248 of 2011 ==================================== Dated this the 14th day of June, 2011 O R D E R Petitioner is the de facto complainant in C.C. No.586 of 2004 of the court of learned Judicial First Class Magistrate, Thiruvalla. That case was registered against five accused including the first respondent (accused sought to be impleaded) for offences punishable under Sections 109, 323, 324, 452, 427 and 379 read with Section 34 of the Indian Penal Code. Case is that on 22.02.2004 at about 2.50 p.m accused 1 to 3 trespassed into the property of petitioner and committed offences as alleged. It is the further case of petitioner that the said act was abeted by the first respondent (who was shown as fifth accused in the FIR). Police in the course of investigation found that first respondent (fifth accused) is not involved in the incident and filed final report deleting her from the array of accused. Learned Magistrate took cognizance against accused 1 to 4 and proceeded with trial against them. Three witnesses including petitioner/de facto complainant were examined. In the course of their evidence they said that first respondent had exhorted accused 1 to 3 to kill CRL.M.C. No.1268 of -: 2 :- petitioner. Based on that evidence petitioner wanted the first respondent to be impleaded and filed C.M.P. No.10634 of 2010 for the purpose. Learned Magistrate rejected the request of petitioner vide order dated 07.02.2011. That order is under challenge. Learned counsel submitted that for the purpose of impleadment evidence of witnesses already examined by the prosecution is sufficient and that even the evidence given in chief examination could be basis for impleadment under Section 319 of the Code of Criminal Procedure (for short, “the Code). Reliance is placed on the decisions in Ram Niwas v. State of U.P. (1990 Crl. L.J. 460) and Shiv Narain v. State of U.P. (2000 Crl. L.J. 3346). I have heard learned Public Prosecutor also. 2. It is not disputed before me and the first information statement given by the petitioner/de facto complainant also states that at the time of giving that statement petitioner had stated that accused 1 to 3 committed the offence at the instigation of the first respondent. In the course of evidence petitioner stated that first respondent exhorted accused 1 to 3 to kill petitioner and others. Of course in cross examination also he repeated that statement. Learned counsel submitted that other witnesses also gave similar evidence regarding the (alleged) role of the first respondent. But learned counsel in fairness conceded that in the statement of P.Ws2 and 3 recorded by the CRL.M.C. No.1268 of -: 3 :- Investigating Officer under Sec.162 of the Code they did not say that first respondent had made any such exhortion but only stated that accused 1 to 3 assaulted petitioner and others at the instigation of first respondent (which the investigating agency found to be not true). Now the question is whether on the above evidence of PW.s 1 to 3 first respondent can be impleaded as additional accused. 3. It is true that in the first information statement also petitioner has a case that it was at the instigation of first respondent that accused 1 to 3 committed offences as alleged. Learned Magistrate has observed that version of P.W.1 before court that first respondent had exhorted accused 1 to 3 to kill petitioner is a new development which did not find a place in her signed statement. As regards as other prosecution witnesses also they had not stated in their previous statement that first respondent had exhorted accused to 1 to 3 to commit the offence. In Ram Niwas v. Sate of U.P relied by the learned counsel the amplitude of the word “evidence” appearing in Sec.319 of the Code was considered. In Shiv Narain v. State of U.P the Allahabad High court observed that the order under Sec.319 of the Code to summon additional accused could be passed even on the basis of evidence recorded in chief examination. CRL.M.C. No.1268 of -: 4 :- 4. I think there could be no quarrel on the above propositions. But the proper course is not to act on the chief affidavit of the witness but to record evidence in full and consider whether that evidence is sufficient to implead an additional accused who is not already made an accused. 5. The Supreme Court has laid down the guidelines for invoking power under Sec.319 of the Code in Lal Suraj v. State of Jharkhand ([2009] 2 SCC 696). It is held that when there is no possibility of recording a judgment of conviction (on the evidence on which impleadment is sought) impleadment shall not be permitted. It is held that a strong suspicion may be a criterion at the stage of framing charge as all the materials brought during investigation were required to be taken into consideration but for the purpose of summoning a person who did not figure as accused, a different legal principle is required to be adopted. In Brindaban Das v. Sate of W.B. ([2009] 2 SCC (Cri) 79) it is held that evidence adduced against the persons must be substantive evidence in order to summon them for trial warranting their prosecution with good chance of conviction. 6. In the present case learned Magistrate has observed that version of prosecution witness in court that first respondent exhorted accused 1 to 3 to kill petitioner and others is a new development which did not find a place in their previous CRL.M.C. No.1268 of -: 5 :- statement where they merely stated that the first respondent instigated accused 1 to 3 to commit the offence. I must bear in mind that investigation resulted in a refer report so far as first respondent is concerned. In the circumstances I do not find reason to interfere with the discretionary jurisdiction exercised by the learned Magistrate having regard to the factual situation and the law on the point. Criminal Miscellaneous Case is dismissed. THOMAS P. JOSEPH, JUDGE. vsv