IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 Crl.Rev.Pet.No. 223 of 2011() ---------------------------------------- CRMP 2265/2010 IN SC.685/2004 OF ADDL. SESSIONS COURT (ADHOC -II), ERNAKULAM . CRIME NO.313/02 IN PARPAVUR POLICE STATION .................... REVN. PETITIONER(S): ADDL.ACCUSED NO.14 & 17 --------------------------------------------------------------------------- 1. TOMY @ THOMMACHAN,S/O.CHACKO, AGED 42 YEARS,VATHULAKALA VEETTIL,KALKKANDI, CHOLAKKANTTU KARA,KALLUMALA VIA, PALAKKAD DISTRICT. 2. SHIBU DEV @ SHIBU,S/O.RAMADEV, AGED 38 YEARS,KARATTU PARAMBU HOUSE,KALLUMALA VIA, MANNARKKADU TALUK,PALAKKAD DISTRICT. BY ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.NOEL JOSEPH SRI.M.B.SANDEEP SMT.P.T.RAZEENA SRI.K.V.REJANISH RESPONDENT(S): COMPLAINANT ------------------------------------------------- STATE OF KERALA,REPRESENTED BY C.I.OF POLICE,PARAVOOR POLICE STATION,BY P.PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.223 OF 2011 ----------------------------------------- Dated this the 10th day of October 2011 ORDER Revision is by some of the accused (A14 to A17) in Sessions Case No.685/2004 on the file of Additional Sessions Court (Ad Hoc-II), Ernakulam. They have been brought in the above case as additional accused, to be tried jointly with the other accused (A1 to A13) against whom alone the aforesaid Sessions Case arose on a report filed by the police, on orders passed by the learned Sessions Judge invoking his jurisdiction under Section 319 of the Code of Criminal Procedure. The de facto complainant and four others, all of whom are stated to have sustained injuries in a conjoint assault by the accused as members of an unlawful assembly, pursuant to a conspiracy hatched by them, when examined before the court gave evidence that the revision petitioners herein, who have not been named as accused in the final report by the police, were also involved in committing the offences along with the other accused (A1 to A13) against whom alone the final report was filed by the police after investigation. The offences imputed against the accused (A1 to A13) under the final report filed by the Circle Inspector of Police, North Paravur are under Sections 120(B), 143, 147, 148, 448, 324, 326 and 307 r/w Section 149 IPC. The evidence being brought in, during the trial against the aforesaid accused (A1 to A13), implicating Crl.R.P No.223 OF 2011 - 2 - the revision petitioners as coassailants of the injured (CW1 to CW5), examined as PW1 to PW5 in the case, the learned Public Prosecutor moved an application under Section 319 of the Code of Criminal Procedure to have their joint trial with the other accused already facing trial before the court. That application was opposed to by some of the accused contending that the investigation has ruled out the complicity of the revision petitioners against whom imputations were made by the aforesaid witnesses in evidence, and as such, the application moved under Section 319 of the Code of Criminal Procedure was not to be allowed. The learned Sessions Judge, after considering the objections raised with reference to the evidence already let in the case, being satisfied that joint trial of the persons named by PW1 to PW5 as coassailants with the accused facing trial, bringing them as coaccused in the case is essential to safeguard the ends of justice, allowed the application moved by the Public Prosecutor and ordered for including them as coaccused in the case invoking his powers under Section 319 of the Code. Propriety, legality and correctness of that order is challenged by the above said persons, additionally brought in as A14 to A17 in the case, contending that the order of the Sessions Judge is unsustainable and liable to be set aside. 2. I heard the learned counsel for the petitioners and also the learned Public Prosecutor. It is submitted that the court on its own Crl.R.P No.223 OF 2011 - 3 - motion alone has to decide whether any person has to be brought in as a coaccused to face joint trial with the accused facing trial and it is incompetent for the Public Prosecutor to move any such application invoking Section 319 of the Code. I do not find any merit in the submission made by the counsel. Satisfaction of the court on the evidence let in the case is the sole criteria whether any person who is not named and proceeded against should be brought in as a coaccused to face trial with the others already brought before the court. In a deserving case, it is even open to the de facto complainant or injured to bring it to the notice of the court that exercise of its jurisdiction under Section 319 of the Code to bring in others as against whom evidence is brought in to be proceeded against, if they are not named as accused, is essential to secure the ends of justice. It is not disputed that the de facto complainant and the other injured, PW1 to PW5, have given evidence implicating the revision petitioners also imputing that they were also coassailants with the accused already named in the report of the police and proceeded in trial. When that be the case and where the court is satisfied that joint trial of the revision petitioners as against whom evidence has been let in as to their culpability with the other accused facing trial, it can only be stated that the order passed by the learned Sessions Judge invoking Section 319 of the Code is just and proper. The broad principles governing the applicability of Section 319 Crl.R.P No.223 OF 2011 - 4 - of the Code of Criminal Procedure have been succinctly explained by the apex court in “Sarojben Ashwinkumar Shah Etc. v State of Gujarat and Another” (2011(8) SCALE 542) as follows: “(i) The court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone. (ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court. (iii) The phrase “any person not being the accused” occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression 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 Section 319 contemplates the evidence of witnesses given in 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. Crl.R.P No.223 OF 2011 - 5 - (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 record 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 in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused. (vi) The court while exercising its power under Section 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 Section 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.” 3. The learned counsel for the petitioner has contended that the statements recorded from PW1 to PW5, both under Sections 161 and 164 of the Code of Criminal Procedure, during the investigation of the crime, are conflicting with their version before the court in as much as their previous statements ruled out the complicity of the revision petitioners in the offences imputed, and as such, the investigating agency has rightly and correctly left them out while filing the final report against the other accused (A1 to A13). Whatever be the defence Crl.R.P No.223 OF 2011 - 6 - available to the revision petitioners with reference to the previous statements of PW1 to PW5 recorded during the investigation, it is open to them to canvass them in the trial of the case. The learned Sessions Judge, at this stage was concerned only with the evidence already brought on record and where the materials tendered through the testimonies of PW1 to PW5, all of whom are stated to be injured, spelt out the involvement of the revision petitioners as coassailants with the accused already arrayed, who were facing trial before that court, the order of the learned Sessions Judge directing the addition of the revision petitioners as coaccused in the case invoking Section 319 of the Code is not at all assailable on any of the grounds canvassed by the counsel. Revision lacks merit, and it is dismissed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge