IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 Crl.MC.No. 3180 of 2009 --------------------------------------- CMP/766/2008 IN CC.707/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... PETITIONER: U.A. ISMAIL, S/O.ABBAS, U.A. HOUSE MELPARAMBA, MALABAR TRADERS, MELPARAMBA, KASARAGOD DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: 1. M.T.ANOOPKUMAR, FOOD INSPECTOR KASARAGOD CIRCLE, OFFICE OF THE FOOD INSPECTOR, KASARAGOD. 2. N.I.MUHAMMAD NOUSHAD, S/O.U.A. ISMAIL, X-223 (B) MALABAR TRADERS, MELPARAMBA, CHEMMANAD GRAMA PANCHAYATH. 3. K.P.DAIVD,S/O.K.M.PAUL, NOMINEE, STERLING COCONUT OILS & CAKES (P) LTD, CHERPU, CHENGALLOOR PO, PUDUKKAD, THRISSUR. 4. STERLING COCONUT OILS & CAKES (P) LTD, CHERPU, THRISSUR. 5. STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR FOR R5 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3180 of 2009 -------------------------- ORDER Petitioner, who was impleaded as additional fourth accused, as per Annexure-A2 order on a petition filed by the Food Inspector, the complainant in C.C.No.707/2005 on the file of Judicial First Class Magistrate's Court-II, Hosdrug, filed this petition under Section 482 of Code of Criminal Procedure to quash Annexure-A2 order. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Complaint was filed, which was taken cognizance by the learned magistrate, on the allegation that first accused was the vendor who sold the food article to the then Food Inspector, who was examined as PW1 in the case. When PW1 was examined, he deposed that the person, who was standing in the dock, was not the vendor from whom CRMC 3180/09 2 he purchased the food article and the vendor was aged fifty years when the first accused is aged only twenty years. 4. Complainant Food Inspector, successor to PW1, then filed C.M.P.No.766/2008 contending that it was the petitioner who was the vendor and not the first accused and therefore, he is to be impleaded as an additional accused. By Annexure-A2 order, it was allowed. Learned counsel appearing for the petitioner pointed out that though PW1 deposed that first accused is not the vendor, he did not identify the petitioner as the vendor and petitioner could be impleaded as an additional accused only on evidence and when first respondent was not examined as a witness, learned Magistrate was not justified in invoking the powers provided under Section 319 of Code of Criminal Procedure to implead the petitioner as an additional accused and therefore, Annexure-A2 order is to be quashed. CRMC 3180/09 3 5. There is force in the submission of the learned counsel. A person, who is not facing trial as an accused, can be proceeded against, along with the accused facing trial, invoking the powers provided under Section 319 of Code of Criminal Procedure, only on evidence. True, evidence need not be a complete evidence, namely, cross- examination of the witness. Even, based on chief examination, if the learned Magistrate finds that a person, who is not arrayed as an accused, has committed any offence for which such person could be tried, along with the accused facing trial, definitely Section 319 of Code of Criminal Procedure enables the Magistrate to implead an accused as an additional accused. But, there should be evidence to satisfy the Magistrate. PW1 admittedly did not depose anything against the petitioner and only stated that first accused, who was in the dock, was not the vendor. In such circumstances, Annexure-A2 order can only be CRMC 3180/09 4 quashed. But, if, on the materials brought out by examination of the Food Inspector later, learned Magistrate is satisfied that petitioner is to be proceeded, on the evidence, he could be impleaded as an additional accused. Petition is allowed. Annexure-A2 order is quashed. It is made clear that based on examination of further witnesses or materials let in as evidence, learned Magistrate is satisfied that petitioner is to be proceeded against, as an accused, learned Magistrate is at liberty to proceed, in accordance with law, as provided under Section 319 of Code of Criminal Procedure. 23rd October, 2009 (M.Sasidharan Nambiar, Judge) tkv