IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 Crl.Rev.Pet.No. 2993 of 2009() ------------------------------ AGAINST THE ORDER DATED 05/08/2009 IN CRMP 7740/08 IN CC.384/2006 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER(S): 4TH & 5TH ACCUSED -------------------------------------- 1. BIJU GOPALAN, MONIPPALLIKKUNEL, 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 SMT.P.A.PRIYA RESPONDENT(S): COMPLAINANT & ACCUSED 1 TO3 ------------------------------------------ 1. STATE OF KERALA REP.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. THANKAMANIYAMMA, ANCHUVILA VEEDU, PALARIVATTOM, ERNAKULAM,. 5. KARUNAKARAN, MULAKUTTIYIL HOUSE, THAZHATHUVADAKARYIL, VELLAVOOR VILLAGE. PUBLIC PROSECUTOR SRI.P.A. SALIM SRI.SHAJI P.CHALY SRI.R.SANJITH FOR R2 SRI.K.RAVIKUMAR FOR R3 SRI.JOSE J.MATHAIKAL FOR R4 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ............................................. CRL.R.P. NO. 2993 OF 2009 ............................................ Dated this the 5th day of March, 2010 ORDER The Revision Petitioners challenge Annexure I order dated 5-8-2009 passed by the Chief Judicial Magistrate, Thodupuzha, arraigning them as additional accused Nos. 4 and 5 by invoking the power under Section 319 Cr.P.C. The first revision petitioner is the licensee in respect of Toddy Shop Nos. 16,17, 43 and 44 of Moovattupuzha Excise Range and 2nd revision petitioner is the licensee in respect of Toddy Shop No. 45. 2. C.C. No. 384 of 2006 in which the petitioners have been arrayed as additional accused Nos. 4 and 5 is a prosecution on the basis of a police report filed by the Thodupuzha Police in Crime No. 76 of 2006 As per the prosecution case, A1 to A3 stood charge-sheeted for offences punishable under Sections 120 B CRL.R.P. NO. 2993 OF 2009 -:2:- and 466 I.P.C 3. The case of the prosecution in the above C.C. No. 384 of 2006 can be summarised as follows:- A1 was the authority competent to assess the contribution pertaining to the Toddy Workers Welfare Fund. He was the Welfare Fund Inspector. He retired from service on 30-4-2005. After his retirement he entered into a criminal conspiracy with accused Nos. 2 and 3 and the pending files relating to the assessment of the aforementioned toddy shops of Moovattupuzha Range during the year 2003-04 were fabricated and the assessment orders showing the contribution payable by the revision petitioners Biju Gopalan and Shiju (who were the toddy shop contractors) under the Toddy Workers Welfare Fund Act, were forged. A3 (Karunakaran) who is a clerk in the office of the first accused affixed seals on the forged assessment orders to make them appear genuine. These forged assessment orders were produced by the revision petitioners herein before this Court in CRL.R.P. NO. 2993 OF 2009 -:3:- Writ Petition No. 34498 of 2006 and obtained the benefit thereunder. A1 to A3 have thereby committed the aforementioned offences punishable under Sections 120 B and 466 of the I.P.C. 3. During the trial of the above case before the Chief Judicial Magistrate as C.C. No. 384 of 2006, Charge Witness No. 3 (Thankappan Pillai) was examined as P.W.1. Immediately after the chief Examination of P.W,.1 was over the Special Public Prosecutor in-charge of the case filed C.M.P. 7740 of 2008 under Sec. 319 Cr.P.C. seeking to array the revision petitioners as additional accused Nos. 4 and 5. Originally, as per order dated 29-1-2009 the learned Chief Judicial Magistrate allowed the said application and the revision petitioners were ordered to be arraigned as additional accused Nos. 4 and 5 as they were the direct beneficiaries of the forgery allegedly committed in the case. The said order was assailed before this Court in Crl. R.P. No. 961 of 2009 by the revision petitioners. Taking note of the decision of the Apex court in Mohd. Shafi v. Mohd. Rafiq - AIR 2007 SC CRL.R.P. NO. 2993 OF 2009 -:4:- 1899 about the desirability of invoking the power under Sec. 319 Cr.P.C. only after the cross-examination of the witness concerned was over, this Court set aside the order clarifying that the order of this Court will not preclude the Chief Judicial Magistrate from invoking the power under Sec. 319 Cr.P.C. at the appropriate stage in case circumstances exercising the said power were made out. Thereafter, the cross-examination of P.W.1 was completed and thereafter the learned Chief Judicial Magistrate as per the impugned order dated 5-8-2009 arrayed the revision petitioners as Additional accused Nos. 4 and 5 by resort to Sec. 319 Cr.P.C. It is the said order which is assailed in this Revision. 4. I heard the learned counsel appearing for the revision petitioners and the learned Public Prosecutor appearing for the prosecution:- 5. Assailing the impugned order, the learned counsel for the revision petitioners made the following submissions before me:- CRL.R.P. NO. 2993 OF 2009 -:5:- This was a case where the revision petitioners were originally arrayed as A2 and A3 in the F.I.R. But their names were deleted by the investigating agency while the final report was filed. There is nothing to show that the petitioners were responsible for the forged assessment orders. There were other final assessment orders for the same year which were also re- called but no action against the other beneficiaries has been taken. The petitioners alone are singled out for hostile treatment. There is nothing on record to show that the petitioners were included in the alleged criminal conspiracy. Applying the dictum laid down in Ram Singh &amp; Ors. v. Ram Niwas &amp; Anr. - 2009 (8) Scale 284 there should be such evidence which if unrebutted, would warrant a conviction of the petitioner. Even recently the Apex Court has held in Hardeep Singh v. State of Punjab and Others - AIR 2009 SC 483 that the court should be satisfied that the persons summoned, in all likelihood, would be convicted. There is nothing to indicate that there is a chance of CRL.R.P. NO. 2993 OF 2009 -:6:- conviction of the petitioners in which case alone the power under Sec. 319 Cr.P.C could be invoked. I am afraid that I cannot agree with the above submissions. But I refrain from making any observations on the merits since that may prejudice one party or the other during the subsequent stages of the trial. Suffice it to say that from the evidence of P.W.1 whose cross - examination was over after this Court passed Annexure (g) order , justifying the arraignment of the petitioners as addl. accused Nos. 4 and 5, I do not find any illegality in the order passed by the court below. This Revision is accordingly dismissed. Sd/-V.RAMKUMAR, JUDGE. . /true copy/ P.S. to Judge