IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Crl.MC.No. 3774 of 2008() ------------------------- CC.322/2007 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... PETITIONER(S): --------------- VIPIN RAJ, S/O.RAJAN, PUSHPA BHAVAN, PURAKKAD PANCHAYAT, ALAPPUZHA. BY ADV. SRI.N.ASHOK KUMAR RESPONDENT(S): --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 3774 of 2008 ------------------------------------------------- Dated this the 13th day of January, 2009 ORDER The petitioner is now arrayed as the third accused in a prosecution for offences punishable under Secs.447, 323 and 341 read with Sec.34 IPC. In the First Information Statement lodged, only two accused persons were named. They were the petitioner herein and his mother one Vimala. Investigation was conducted by the police and in the course of investigation, the police came to the conclusion that the petitioner herein deserves to be deleted from the array of accused and his father one Rajan deserves to be brought on the array of accused. Accordingly, the 1st accused was substituted. The petitioner was removed from the array and the petitioner's father was brought on the array of accused. 2. Trial commenced with the petitioner's father and Crl.M.C. No. 3774 of 2008 -: 2 :- mother in the dock. The de facto complainant was examined as P.W.1. After recording his evidence, the learned Magistrate found that there was incriminating material against the petitioner herein. The records reveal to the learned Magistrate that the petitioner was specifically named as accused in the First Information Statement. The learned Magistrate further found that the petitioner's complicity is revealed in the wound certificate also. On the basis of these three circumstances – the incriminating oral evidence of P.W.1, the averments in the First Information Statement and the allegations made to the Doctor recorded in the wound certificate, the learned Magistrate felt that it was proper and just to invoke the jurisdiction under Sec.319 Cr.P.C. to bring the petitioner on the array of accused. It is that order passed by the learned Magistrate under Sec.319 Cr.P.C. which is assailed in this petition. 3. The crucial question is whether the learned Magistrate had sufficient materials to entertain the requisite satisfaction that the petitioner deserves to be impleaded as an additional accused in this prosecution. No hard and fast rule or rigid criteria can be imported. There can be no litmus test specified Crl.M.C. No. 3774 of 2008 -: 3 :- as to the circumstances under which the jurisdiction under Sec.319 Cr.P.C. can be invoked. In the instant case, considering the three circumstances referred above, I am of opinion that the court below has not committed any such gross error, perversity or illegality resulting in miscarriage of justice in choosing to array the petitioner as an additional accused. 4. The learned counsel for the petitioner submits that in that event the 1st accused – the father of the petitioner, should, at least, have been deleted from the array of accused. I am afraid, that question need not be considered in this petition filed by the impleaded accused – the 3rd accused i.e., the petitioner herein. 5. I must alertly remind myself of the nature, quality and contours of the jurisdiction which I am called upon to invoke and exercise. Unless the discretions exercised by the subordinate courts are so grossly erroneous or perverse and such vice, in turn, leads to miscarriage of justice, it is not necessary for this Court to invoke such extraordinary inherent jurisdiction. I do not find any circumstances justifying the invocation of such jurisdiction. Crl.M.C. No. 3774 of 2008 -: 4 :- 6. This Crl.M.C. is, in these circumstances, dismissed. The learned counsel for the petitioner submits that the petitioner may be given an opportunity to appear through pleader. The petitioner can appear and after his release on bail, he can certainly apply for exemption from personal appearance. Such prayer must be considered by the learned Magistrate on merits and appropriate orders must be passed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 3774 of 2008 -: 5 :-