This criminal miscellaneous case was dismissed in limine. The High Court held that a witness protected under the proviso to Section 132 of the Indian Evidence Act cannot be impleaded as an accused under Section 319 Cr.P.C., affirming the lower courts' dismissal.
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 P.UBAID
TUESDAY, THE 16TH DAY OF DECEMBER 2014/25TH AGRAHAYANA, 1936
Crl.MC.No. 699 of 2013 ()
CRRP 63/2011 of SESSIONS COURT, ERNAKULAM ================
PETITIONERS/ACCUSED IN C.C.NO.1293/2003 ON THE FILES OF JFCM-II, ALUVA:
1. K.M.NASARUDHEEN, AGED 48 YEARS S/O.MOOSA HAJI, KIZHAKKEKKARA HOUSE, TOLL JUNCTION PUTHUPALLIPRAM KARA, THRIKKAKKARA NORTH VILLAGE KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682024.
2. NISHIJA NASARUDHEEN, AGED 38 YEARS W/O.K.M.NASARUDHEEN, KIZHAKKEKKARA HOUSE TOLL JUNCTION, PUTHUPALLIPRAM KARA THRIKKAKKARA NORTH VILLAGE, KANAYANNUR TALUK ERNAKULAM DISTRICT, PIN-682024.
BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.G.MANU KRISHNAN
RESPONDENTS/STATE AND CW2/ACCUSED NO.4 AND PW4:
1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
2. V.C.GEORGE @ SUNNY, AGED 51 YEARS
3. SUBASH CHANDRAN, AGED 52 YEARS S/O.AMBUJAKSHAN NAIR, SREEPADHAM, EDAPPALLY NOW WORKING AT DRAWPATHI, T.D.ROAD, ERNAKULAM.
4. BINU, AGED 43 YEARS, S/O.MATHEW MOOZHIYANKAL HOUSE, KANJIRAPPILLY VILLAGE KOTTAYAM TALUK.
R3 BY ADV. SRI.K.V.JAYACHANDRAN R3 BY ADV. SRI.RAJU V.MATHEW R2 & R4 BY ADV. SRI.V.JOHN SEBASTIAN RALPH R2 & R4 BY ADV. SMT.PREETHY KARUNAKARAN R2 & R4 BY ADV. SRI.K.J.JOSEPH (ERNAKULAM) R2 & R4 BY ADV. SRI.V.JOHN THOMAS R1 BY PUBLIC PROSECUTOR SMT. P. MAYA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.M.C.NO. 699/2013
APPENDIX
PETITIONER'S EXHIBITS
ANNEXURE A1 COPY OF PETITION IN Crl.M.P.No.1843/2011 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALUVA ANNEXUE A2 COPY OF THE ORDER DATED 11.08.2011 IN Crl.M.P.No.1843/2011 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALUVA
ANNEXURE A3 COPY OF THE ORDER IN Crl.R.P.No.63/2011 ON THE FILES OF SESSION'S COURT, ERNAKULAM
RESPONDENTS' EXHIBITS
NIL
// TRUE COPY // P.A. TO JUDGE
SD
P. UBAID, J.
Crl.M.C. No. 699 of 2013
Dated this the 16th day of December, 2014
The petitioners herein are the accused Nos.1 and 2 in C.C.No.1293/2003 of the Judicial First Class Magistrate Court-II, Aluva. During trial, they filed application under Section 319 Cr.P.C. to implead one of the witnesses as accused. The said application was filed on the basis of some statements given by the said witness during trial. The learned Magistrate dismissed the said application by order dated 11.08.2011, on the ground that the said prayer cannot be allowed in view of the proviso to Section 132 of the Indian Evidence Act, granting protection to witnesses examined in court. The petitioners challenged the said order in revision before the Court of Session, Ernakulam. The learned Sessions Judge concurred with the findings of the trial court, and dismissed the Crl.R.P.No.63/2011. The said order is under challenge in this proceeding. On hearing both sides, and on a perusal of the impugned orders, I find that this is in fact a mischievous application. The witness cannot be impleaded as
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Crl.M.C.. No. 699/2013
accused under Section 319 Cr.P.C. because the witness is well protected by the proviso to Section 132 of the Indian Evidence Act. The request made by the petitioner was rightly disallowed by the trial court, and also by the revisional court. I find no reason, legal or factual, to grant the relief sought by the petitioners. I find that the application was rightly dismissed by the court below.
In the result, this Crl.M.C. is dismissed in limine, without being admitted to files.
Sd/-
P. UBAID, JUDGE
sd
1 issue framed by the court
Whether a witness protected under the proviso to Section 132 of the Indian Evidence Act can be impleaded as an accused under Section 319 Cr.P.C. during trial
2 provisions across 2 enactments
K.M.NASARUDHEEN
NISHIJA NASARUDHEEN
STATE OF KERALA
P.UBAID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
