IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Crl.MC.No. 2047 of 2009() ------------------------- AGAINST THE ORDER DATED 8/06/2009 IN CMP 2965/2009 IN CC.220/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... PETITIONER(S): PETITIONER: ----------------------------------------------- NAINAKUMARI,AGED 43 YEARS,D/O.SARADA, PEZHUMMOODU VEEDU (BINZI BHAVAN)PULLAYIL DESOM, KODUVAZHANOOR VILLAGE,THIRUVANANTHAPURAM. BY ADVS.SMT.C.G.PREETHA, SMT.M.KABANI DINESH RESPONDENT(S): COUNTER PETITIONER: --------------------------------------------------------------- STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2047 of 2009 -------------------------- ORDER This petition is filed under Section 482 of Code Criminal Procedure to quash Annexure-IX order passed by Judicial First Class Magistrate-II, Attingal dismissing C.M.P.No.2965/2009 in C.C.No. 220/2005 filed by the petitioner to invoke the power under Section 319 of Code of Criminal Procedure to proceed against Anilkumar, who was shown as second accused in the FIR, but was subsequently deleted on investigation. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel appearing for the petitioner argued that petitioner had earlier filed an application under Section 319 of Code of Criminal Procedure to proceed against the said Anilkumar, but, it was dismissed with liberty to the petitioner to apply at a later stage and C.M.P. CRMC 2047/09 2 No.2965/2009 was filed at a later stage, based on the evidence of PWs 1 and 2 and when PWs 1 and 2 had spoken the part played by the proposed accused, learned Magistrate should have invoked the powers under Section 319 of Code of Criminal Procedure and proceeded with the case after impleading him as second accused. Reliance was placed on the decision of the Apex Court in Y.Saraba Reddy v. Puthur Rami Reddy ((2007) 4 SCC 773). 4. Section 319 of Code of Criminal Procedure enables a court, in the course of an enquiry or trial of an offence, if it appears to the court 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 such person for the offence which he appears to have committed. The power provided under Section 319 can be exercised by the court suo motu or on an application by some one including the accused. But, to invoke the power, court must be CRMC 2047/09 3 satisfied on the evidence that any other person has committed the offence and he is to be tried together with the accused. The power is discretionary and to be exercised judicially having regard to the facts and circumstances of the case. It should be exercised sparingly and only if compelling reasons exist for taking action, against whom action was not taken earlier. It is to be invoked only in the interest of justice and not to satisfy an aggrieved person. 5. The question is whether the learned Magistrate has exercised the jurisdiction properly while dismissing the application under Annexure-IX order. 6. On going through Annexure-IX order, I find that learned Magistrate has considered all the relevant aspects and rightly did not exercise the power under Section 319 of Code of Criminal Procedure. For the sole reason that two of the prosecution witnesses have spoken against the CRMC 2047/09 4 proposed accused, it is not mandatory that court is to exercise the power to proceed against that person as claimed by the petitioner. It is for the court to decide whether on the said evidence, which should be reliable, that the person, who is not before the court facing trial, is to be added as an accused in the same trial. I find no reason to interfere with Annexure-IX order. Petition is dismissed. 2nd July, 2009 (M.Sasidharan Nambiar, Judge) tkv