IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 Crl.Rev.Pet.No. 961 of 2009() ----------------------------- AGAINST THE ORDER DATED 28/01/2009 IN CRMP.7740/2008 IN CC.384/2006 of CHIEF JUDICIAL MAGISTRATE COURT, MUTTOM, THODUPUZHA .................... REVN. PETITIONER(S): 4TH & 5TH ACCUSED -------------------------------------- 1. BIJU GOPALAN,MONIPPALLIKUNNEL, KALIYAR, VANNAPPURAM, THODUPUZHA. 2. M.N.SHIJU, MONIPPALLY KUNNEL, AVOLY.PO, VAZHAKKUNNAM, MUVATTUPUZHA. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENT(S): COMPLAINANT & ACCUSED NOS. 1 TO 3 ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CHIEF WELFARE FUND INSPECTOR, KERALA TODDY WORKERS' WELFARE FUND BOARD, ULLOOR, THIRUVANANTHAPURAM. 3. K.K.SASIDHARAN, KANNANKERIL HOUSE, ADARSH NAGAR, KAKKANAD. 4. THENKAMANIYAMMA, ANCHUVILA VEEDU, PALARIVATTOM, ERNAKULAM. 5. KARUNAKARAN, MULAKUTTIYIL HOUSE, THAZHATHUVADAKARYIL, VELLAVOOR VILLAGE. BY P.P. SRI. JAYAKRISHNAN FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 961 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 18th day of March, 2009 O R D E R Revision petitioners who were arrayed as additional accused 4 and 5 as per the impugned order dated 28-1-2009 passed by invoking Section 319 Cr.P.C. by the Chief Judicial Magistrate Muttom, Thodupuzha, assail the said order. 2. The revision petitioners are the licensees in respect of toddy shop Nos.16, 17, 43 and 45 of Muvattupuzha Excise Range. The 1st accused was the competent authority to assess the contribution. The assessment which is conducted in two stages was completed on 30-4-2005, which was the date of retirement of the 1st accused. The revision petitioners were facing revenue recovery proceedings for the advance contribution to the Welfare Fund and the interest due thereon. The revision petitioners preferred a writ petition as W.P.(C) No. 34498/2006 before this Court, contending that the proceedings have already been completed and assessments were completed and the revenue recovery proceedings initiated against the petitioner demanding amounts more than what is to be paid as per the final assessment were illegal. The said writ petition is still pending before this Court. While so, the Welfare Fund Crl.R.P. No. 961/2009 -2- Board initiated prosecution against 1st accused and revision petitioners alleging that the assessment order produced before this Court were actually fabricated and forged and that the said accused persons have committed offences punishable under section 466 read with section 120(B) IPC. The said case was registered as Crime No. 76/2006 of Thodupuzha Police Station. In the above crime final report was filed after deleting the names of revision petitioners and incorporating the names of accused 2 and 3. During the trial of the said case, registered as C.C. No.384/2006 before the Chief Judicial Magistrate Court, Thodupuzha, charge witness No.3 was examined as PW1. Immediately after the chief examination of PW1, the Public Prosecutor in charge of the case filed C.M.P. No. 7740/2008 seeking to implead the revision petitioners as additional accused 4 and 5. As per the impugned order dated 28-1-2009 the learned Chief Judicial Magistrate allowed the said application and the revision petitioners were ordered to be impleaded as additional accused 4 and 5. It is the said order, which is assailed in this revision petition. 3. The impugned order suffers mainly from the following two deficiencies:- Crl.R.P. No. 961/2009 -3- 1) It is admitted that PW1 was only examined in chief and it was before the starting of his cross- examination that the aforesaid petition was filed by the Public Prosecutor in charge of the case. Even though as held by the Apex Court in Rakesh and another V. State of Haryana ((2001)6 SCC 248) the court is competent to exercise the power under section 319 Cr.P.C. even before the cross- examination of a witness, this Court in Aboobacker Musaliar V. Inspector of police and others (2005 ILR (Ker.) 200 held that the said power which has to be exercised sparingly should be pressed into service only after the cross examination of the witness concerned from whose evidence the complicity of the person to be added as an additional accused is revealed. In fact, in a subsequent decision of the Apex Court in Mohd. Shafi V. Mohd. Rafiq and another (AIR 2007 SC 1899) the Apex Court has also stressed the desirability of invoking the power under section 319 Cr.P.C. only after the cross examination of the witness concerned. Hence, the learned Chief Crl.R.P. No. 961/2009 -4- Judicial Magistrate should have waited till the cross examination of PW1 was over to decide whether the power under section 319 Cr.P.C. should be exercised. 2) Another important aspect which has been lost sight of by the learned Chief Judicial Magistrate is that section 319 is an extraordinary power which is to be sparingly exercised and only if compelling reasons exist in taking cognizance against persons other than those who are arrayed as accused (See Sohan Lal V. State of Rajasthan (AIR 1990 SC 2158). Even while exercising the said power, the court has to be satisfied that there exists a real likelihood of conviction of the accused persons sought to be added. It is only after arriving at such a satisfaction that the criminal court can exercise the power under section 319 Cr.P.C. (Vide Mohd. Shafi V. Mohd. Rafiq (AIR 2007 SC 1899). 4. Since the impugned order does not reflect consideration of both the above aspects of the matter, the impugned order is set aside. It is made clear that this order will Crl.R.P. No. 961/2009 -5- not preclude the Chief Judicial magistrate from invoking the power under section 319 Cr.P.C. at the appropriate stage in case circumstances for exercising the said power are made out. Revision petition is allowed as above. V. RAMKUMAR, JUDGE. mn.