IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.Rev.Pet.No. 2305 of 2009() ------------------------------ CC.328/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PARAPPANANGADI .................... REVN. PETITIONER(S): PETITIONER/ACCUSED NO.3 -------------------------------------------- KUNHIMOIDEEN @ BAVA, S/O. BEERANKUTTY, AGED 52 YEARS, THALEKKARA (H), THIRICHIRANGADI CHERIAMANGALAM (S), P.O.NEDUVA, PARAPPANANGADI. BY ADV. SRI.HARISH R. MENON SRI.K.T.SHYAMKUMAR RESPONDENT(S): COMPLAINANT/ADDL.RESPONDENT NO.2 -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.RESPONDENT NO.2: 2. FAIZEL, S/O.KUNHIMOIDEEN, THALEKKARA HOUSE, THIRICHIRANGADI, CHERAMANGALAM (S), P.O.NEDUVA, PARAPPANANGADI,MALAPPURAM DISTRICT. (ADDL.R2 IMPLEADED VIDE ORDER DATED 23.7.2009 ON CRL.M.A. NO.7065/2009) PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2305 of 2009 -------------------------------------- Dated this the 23rd day of July, 2009. ORDER Notice to additional respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision. Heard counsel for petitioner and Public Prosecutor who took notice for respondent No.1. 2. This revision is in challenge of order dated 10.6.2009 in C.C.No.328 of 2006 of the court of learned Judicial First Class Magistrate-I, Parappanangadi. Final report was filed in that case by Thirurangadi police against two accused for offences punishable under Sections 448, 323 and 354 read with Section 34 of the Indian Penal Code (for short, “the IPC”). Chief examination of PW1, alleged victim was conducted. In the course of chief examination PW1 referred to the alleged involvement of petitioner and additional respondent No.2 in the incident. Thereon without waiting for cross examination of PW1 learned magistrate passed the impugned order directing impleadment of petitioner and additional respondent No.2 as accused in the case. That order is under challenge. Since additional respondent No.2 is now abroad and he is also affected by the impugned order, he has been impleaded as a respondent in this revision. It is not disputed that additional respondent No.2 is the son of petitioner. Since this Court while exercising revisional jurisdiction is concerned with the legality, regularity and propriety of the order, failure of additional respondent No.2 to join Crl.R.P.No.2336/2009 2 as a petitioner in the revision is not fatal and notwithstanding that, this Court has to consider the legality, regularity and propriety of the order under challenge. 3. No doubt, PW1 has referred to the alleged involvement of petitioner and additional respondent No.2 in the incident and they are not accused in the case. Section 319 of the Code of Criminal Procedure (for short, “the Code”) enables the court to implead persons who are not already accused and who could be tried along with the accused on record if it appears from the evidence that such person has committed any offence. For ordering impleadment of a person who is not already an accused, it must be appear to the court from the evidence that such person has committed an offence. Supreme Court has held that for the purpose of framing charge in a case instituted on police report what is required is only the existence of sufficient ground. Even a strong suspicion may be sufficient to frame charge against an accused but when it comes to the question of impleadment under Section 319 of the Code, a prima facie case is not sufficient and instead, it must appear to the court from the evidence that such person also has committed an offence for which he could be tried along with accused on record. Supreme Court has held in Kailash v. State of Rajasthan [(2008) 14 SCC 51] , “......... A glance at these provisions would suggest that during the trial it has to appear from the evidence that 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. ..... Crl.R.P.No.2336/2009 3 ” (emphasis supplied) It is also held in the above referred decision, “............ This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the person concerned has committed an offence. The words “it appears” are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the section demands.” Again in Brindaban Das v. State of West Bengal [(2009) 2 SCC (Cri.) 79], the Supreme Court cautioned that the power under Section 319 of the Code should be invoked only where it is imperative to meet the ends of justice. The power cannot be invoked as a matter of course. 4. I am not referring to the evidence on record concerning the alleged involvement of petitioner and additional respondent No.2 in this case. I find from the impugned order that learned magistrate has not entered a satisfaction that it appeared from the evidence that petitioner and additional respondent No.2 have committed offences as alleged. Learned magistrate has merely observed that, “In chief evidence PW1 stated that about the involvement of one Kunhimoideen and Faizal Crl.R.P.No.2336/2009 4 in the case. The overt acts of these accused are also mentioned. It is seen that in the FIS also said Kunhimoideen and Faizal is mentioned and their overt acts. I find that they also to be tried along with accused in this case. So Kunhimoideen is impleaded as A3 and Faizal as A4. Issue summons to A3 and A4”. The order, I may say falls short of the requirements of Section 319 of the Code as highlighted by the Supreme Court in the decisions referred supra and hence, cannot stand. 5. It is contended by learned counsel for petitioner that without completing examination of PW1 by cross examine impleadment of petitioner and additional respondent No.2 could not have been ordered. Learned counsel has placed reliance on the decision in Hardeep Singh v. State of Punjab (AIR 2009 SC 483). There, though it was observed that ‘evidence’ includes evidence given in chief examination also, the matter has been referred to the decision of a larger Bench in view of the conflicting decisions of co-equal Benches of the Supreme Court. There are decisions which say that 'evidence' referred to in Section 319 of the Code does not mean evidence tested by cross examination since evidence tendered in chief examination is also evidence for the purpose of Section 319 of the Code. However the proper course atleast till larger Bench of the Supreme Court decided otherwise is to wait till the examination of the witness concerned is over. I am however not pronouncing any judgment on that issue in this case. Crl.R.P.No.2336/2009 5 6. I stated that the order under challenge cannot stand under the test requirements of Section 319 of the Code. I am not going into the question whether impleadment of petitioner and additional respondent No.2 warranted on the evidence on record. That is a matter which the learned magistrate has to decide after proper consideration of the evidence and in the light of the decisions of the Supreme Court referred to above. The order under challenge being illegal is liable to be set aside in toto notwithstanding that additional respondent No.2 has joined as a petitioner. Resultantly this revision petition is allowed. Order under challenge is set aside and the matter is sent back to the learned magistrate for proper consideration as provided under law at the appropriate stage. THOMAS P.JOSEPH, Judge. cks