This High Court quashed a magistrate's order impleading additional accused persons under Section 319 CrPC, holding the order illegal because the lower court failed to record satisfaction that the evidence established a prima facie case against them.
Impugned order directing impleadment set aside; matter remitted to learned magistrate for reconsideration.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931
Crl.Rev.Pet.No. 2305 of 2009()
CC.328/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PARAPPANANGADI
REVN. PETITIONER(S): PETITIONER/ACCUSED NO.3
KUNHIMOIDEEN @ BAVA, S/O. BEERANKUTTY, AGED 52 YEARS, THALEKKARA (H), THIRICHIRANGADI CHERIAMANGALAM (S), P.O.NEDUVA, PARAPPANANGADI.
BY ADV. SRI.HARISH R. MENON
SRI.K.T.SHYAMKUMAR
RESPONDENT(S): COMPLAINANT/ADDL.RESPONDENT NO.2
ADDL.RESPONDENT NO.2:
(ADDL.R2 IMPLEADED VIDE ORDER DATED 23.7.2009 ON CRL.M.A. NO.7065/2009)
PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R1
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
THOMAS P. JOSEPH, J.
-------------------------------------Crl.R.P.No.2305 of 2009 -------------------------------------Dated this the 23rd day of July, 2009.
ORDER
Notice to additional respondent No.2 is dispensed with in view of the order I am proposing to pass in this revision. Heard counsel for petitioner and Public Prosecutor who took notice for respondent No.1.
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as a petitioner in the revision is not fatal and notwithstanding that, this Court has to consider the legality, regularity and propriety of the order under challenge.
in Kailash v. State of Rajasthan [(2008) 14 SCC 51] ,
“......... A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. .....
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” (emphasis supplied)
It is also held in the above referred decision,
“............ This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the person concerned has committed an offence. The words “it appears” are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the section demands.”
Again in Brindaban Das v. State of West Bengal [(2009) 2 SCC
(Cri.) 79] , the Supreme Court cautioned that the power under Section 319 of the Code should be invoked only where it is imperative to meet the ends of justice. The power cannot be invoked as a matter of course.
“In chief evidence PW1 stated that about the involvement of one Kunhimoideen and Faizal
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in the case. The overt acts of these accused are also mentioned. It is seen that in the FIS also said Kunhimoideen and Faizal is mentioned and their overt acts. I find that they also to be tried along with accused in this case. So Kunhimoideen is impleaded as A3 and Faizal as A4. Issue summons to A3 and A4”.
The order, I may say falls short of the requirements of Section 319 of the Code as highlighted by the Supreme Court in the decisions referred supra and hence, cannot stand.
(AIR 2009 SC 483) . There, though it was observed that ‘evidence’ includes evidence given in chief examination also, the matter has been referred to the decision of a larger Bench in view of the conflicting decisions of co-equal Benches of the Supreme Court. There are decisions which say that 'evidence' referred to in Section 319 of the Code does not mean evidence tested by cross examination since evidence tendered in chief examination is also evidence for the purpose of Section 319 of the Code. However the proper course atleast till larger Bench of the Supreme Court decided otherwise is to wait till the examination of the witness concerned is over. I am however not pronouncing any judgment on that issue in this case.
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Resultantly this revision petition is allowed. Order under challenge is set aside and the matter is sent back to the learned magistrate for proper consideration as provided under law at the appropriate stage.
THOMAS P.JOSEPH, Judge.
cks
1 issue framed by the court
Whether the learned magistrate committed an error of law in ordering the impleadment of persons not yet examined under Section 319 CrPC without recording satisfaction that evidence showed they committ
Colour shows how this judgement treated each authority
Kailash v. State of RajasthanExplained¶29
Kailash v. State of Rajasthan [(2008) 14 SCC 51] · Who else cites this
Brindaban Das v. State of West BengalExplained¶37
Brindaban Das v. State of West Bengal [(2009) 2 SCC (Cri.) 79] · Who else cites this
Hardeep Singh v. State of PunjabReferred¶45
Hardeep Singh v. State of Punjab AIR 2009 SC 483 · Who else cites this
2 provisions across 2 enactments
Kunhimoideen @ Bava
Faizel
State of Kerala
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
