IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 Crl.MC.No. 3993 of 2008() ----------------------------------- SC.1241/2004 of ADDL. SESSIONS COURT FAST TRACK (ADHOC-II), TRIVANDRUM .................... PETITIONER(S): --------------------- V. SUNIL KUMAR, AGED 44 YEARS, S/O. VELUKUTTY, PRAVEENA COTTAGE, THYCAUD.P.O, TRIVANDRUM. BY ADV. MR.THOMAS ABRAHAM MR.R. DIPU SMT.MERCIAMMA MATHEW MR.K.R. HARIDAS. RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, MUSEUM POLICE STATION, TRIVANDRUM. 3. ANIL KUMAR, S/O. DIVAKARAN, T.C 24/1677, THODIYILVEEDU, NEAR BOOTHATHAN TEMPLE, KANNETTUMUKKU, THYCADU VILLAGE, THIRUVANANTHAPURAM. R1 & R2 BY PUBLIC PROSECUTORMR.B. JAYASOORYA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3993 of 2008 -------------------------- ORDER This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-1 order passed by Additional Sessions Judge-II, Thiruvananthapuram in S.C.No.1241/2004 impleading China Sunil, the petitioner, as an additional accused invoking the power under Section 319 of Code of Criminal Procedure contending that the Sessions Judge should not have impleaded him as an additional accused and third respondent should be directed to undergo a lie detector test before the Forensic Science Laboratory, Thiruvananthapuram. It is contended that when police, after investigation, excluded petitioner and the prayer for reinvestigation was rejected, based on the evidence of third respondent alone, without appreciating the factual conspectus of the case, petitioner should not have been impleaded as an accused and so, Annexure-1 order is to be quashed. CRMC 3993/08 2 2. On going through Annexure-1 order, it is clear that it is based on the evidence available and finding that the case is to be proceeded as against the petitioner also, the learned Sessions Judge exercised the power under Section 319 of Code of Criminal Procedure. Section 319 enables the court, in the course of any inquiry or trial of an offence, if, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, to proceed against that person for the offence which he appears to have been committed. 3. It is not the law that power provided under Section 319 of the Code could be exercised only after exhausting recording of all the evidence. Even if a person who was originally an accused but was dropped on investigation by the police at the time of filing the final report under Section 173 (2) of the Code or was discharged under Section 239 by the Magistrate or under Section 227 of the Code CRMC 3993/08 3 by the Sessions Judge, there is no prohibition for the Magistrate or the Sessions Judge in proceeding against him under Section 319 of the Code later, if it appears from the evidence that such person has committed the offence. 4. The learned Sessions Judge, on the evidence of the third respondent, was satisfied that petitioner appeared to have committed the offence and the power under Section 319 of the Code is to be exercised. As provided under sub-section (4)(a) of Section 319, Sessions Judge is bound to commence the proceedings as against the petitioner afresh. 5. As learned Sessions Judge was justified in exercising the power under Section 319 of Code of Criminal Procedure on the evidence, I find no reason to interfere with that order. Petition is dismissed. 26th August, 2009 (M.Sasidharan Nambiar, Judge) tkv