The Kerala High Court dismissed a petition seeking impleadment of a fifth accused person under Section 319 CrPC. The magistrate had rejected the request because testimony in court regarding the accused's role was a new development not found in prior statements or the investigation report.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933
Crl.MC.No. 1248 of 2011()
-----------------------------------C.M.P. NO.10634/2010 IN CC.586/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA
PETITIONER/COMPLAINANT
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T.K. GOPINANDAN, AGED 69 YEARS, S/O.KUNJIRAMAN, SURABIYIL HOUSE, NEDUMPURAM.
BY ADV. SRI.E.D.GEORGE
RESPONDENTS/5TH ACCUSED & STATE
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1. SHYJI, KUNNATH HOUSE, RAGAMALIKA, NEDUMPURAM-689 643.
2. SUB INSPECTOR OF POLICE, PULIKEEZHU, PATHANAMTHITTA-689 645.
R2 BY PUBLIC PROSECUTOR MR.V. MANU.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rs
Crl.MC.No. 1248 of 2011
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE 1: COPY OF THE CRIME NO.48/04 REGISTERED BY THE 2ND RESPONDENT, SUBSEQUENTLY NUMBERED AS C.C. NO.586/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THIRUVALLA.
ANNEXURE II: COPY OF THE DEPOSITION OF PETITIONER.
ANNEXURE III: COPY OF THE ORDER OF THE 1ST CLASS JUDICIAL MAGISTRATE, THIRUVALLA IN C.M.P. NO.10634/2010 IN C.C. NO.586/2004.
RESPONDENTS ANNEXURES: NIL
//TRUE COPY//
P.S. TO JUDGE
rs
THOMAS P.JOSEPH, J.
==================================== Crl. M.C. No.1248 of 2011
==================================== Dated this the 14th day of June, 2011
O R D E R
Petitioner is the de facto complainant in C.C. No.586 of 2004 of the court of learned Judicial First Class Magistrate, Thiruvalla. That case was registered against five accused including the first respondent (accused sought to be impleaded) for offences punishable under Sections 109, 323, 324, 452, 427 and 379 read with Section 34 of the Indian Penal Code. Case is that on 22.02.2004 at about 2.50 p.m accused 1 to 3 trespassed into the property of petitioner and committed offences as alleged. It is the further case of petitioner that the said act was abeted by the first respondent (who was shown as fifth accused in the FIR). Police in the course of investigation found that first respondent (fifth accused) is not involved in the incident and filed final report deleting her from the array of accused. Learned Magistrate took cognizance against accused 1 to 4 and proceeded with trial against them. Three witnesses including petitioner/de facto complainant were examined. In the course of their evidence they said that first respondent had exhorted accused 1 to 3 to kill
CRL.M.C. No.1268 of
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petitioner. Based on that evidence petitioner wanted the first respondent to be impleaded and filed C.M.P. No.10634 of 2010 for the purpose. Learned Magistrate rejected the request of petitioner vide order dated 07.02.2011. That order is under challenge. Learned counsel submitted that for the purpose of impleadment evidence of witnesses already examined by the prosecution is sufficient and that even the evidence given in chief examination could be basis for impleadment under Section 319 of the Code of Criminal Procedure (for short, “the Code). Reliance is placed on the decisions in Ram Niwas v. State of U.P. (1990 Crl. L.J. 460) and Shiv Narain v. State of U.P. (2000 Crl. L.J. 3346). I have heard learned Public Prosecutor also.
CRL.M.C. No.1268 of
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Investigating Officer under Sec.162 of the Code they did not say that first respondent had made any such exhortion but only stated that accused 1 to 3 assaulted petitioner and others at the instigation of first respondent (which the investigating agency found to be not true). Now the question is whether on the above evidence of PW.s 1 to 3 first respondent can be impleaded as additional accused.
CRL.M.C. No.1268 of
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CRL.M.C. No.1268 of
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statement where they merely stated that the first respondent instigated accused 1 to 3 to commit the offence. I must bear in mind that investigation resulted in a refer report so far as first respondent is concerned. In the circumstances I do not find reason to interfere with the discretionary jurisdiction exercised by the learned Magistrate having regard to the factual situation and the law on the point.
Criminal Miscellaneous Case is dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv
2 issues framed by the court
Whether an additional accused person can be impleaded under Section 319 CrPC based solely on evidence available in chief examination without recording full evidence.
Whether the learning magistrate exercised the correct discretionary jurisdiction to reject the request for impleadment of an additional accused.
Colour shows how this judgement treated each authority
Ram Niwas v. State of U.P.Referred¶33
Ram Niwas v. State of U.P. (1990 Crl. L.J. 460)
Shiv Narain v. State of U.P.Referred¶33
Shiv Narain v. State of U.P. (2000 Crl. L.J. 3346)
Lal Suraj v. State of JharkhandExplained¶44
Lal Suraj v. State of Jharkhand ([2009] 2 SCC 696) · Who else cites this
Brindaban Das v. Sate of W.B.Explained¶44
Brindaban Das v. Sate of W.B. ([2009] 2 SCC (Cri) 79) · Who else cites this
1 provisions across 1 enactments
T.K. Gopinandan
Shyji
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
