Allowed

Sreenivasan v. State of Kerala

Kerala HC19 Dec 2018Crl.MC/4082/2015

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 Cr.P.C. challenging an order adding petitioners as additional accused under Section 319 Cr.P.C. The court found the impugned order patently illegal as it was based solely on the First Information Statement and a statement to a doctor, lacking evidence recorded in the trial.

What did the court decide?

The impugned order was set aside and the petitioners were released.

Sreenivasan Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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WEDNESDAY, THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940

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Crl.MC.No. 4082 of 2015

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CC 565/2005 OF J.M.F.C., CHAVAKKAD DATED 21-04-2014

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CRIME NO. 45/2003 OF CHAVAKKAD POLICE STATION, THRISSUR

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PETITIONER/S:

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1 SREENIVASAN, AGED 46 YEARS S/O.RAGHAVAN, KANDARASSERY HOUSE, MANATHALA, CHAVAKKAD, THRISSUR.

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2 MINEESH, AGED 32 YEARS S/O.ASHOKAN, KANDARASSERY HOUSE, MANATHALA, CHAVAKKAD, THRISSUR.

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BY ADVS.

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SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. (CRIME NO.45/2003 OF CHAVAKKAD POLICE STATION, THRISSUR DISTRICT)

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Crl.MC.No. 4082 of 2015

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..2..

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ADDL. BABURAJ, AGED 49 YEARS R2 S/O BALAN, KANDARASSERY HOUSE, MANATHALA, CHAVAKKAD, THRISSUR-680 506

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(ADDL. R2 IS IMPLEADED AS PER ORDER DATED 22/07/2015 IN CRL.MA 6886/2015 IN CRL.MC 4082/2015)

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OTHER PRESENT:

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SRI.ALEX M THOMBRA SR PP

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ORDER

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Petition filed under Section 482 Cr.P.C.

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In CC No. 565 of 2005 pending in the Court of

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the Judicial First Class Magistrate, Chavakkad, the petitioners were ordered to be added as additional accused 6 & 7 under Section 319 of the Cr.P.C. This order is challenged.

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Heard the learned counsel for the petitioners

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and the learned Public Prosecutor.

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Crl.MC.No. 4082 of 2015

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..3..

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The impugned order was passed in CC No. 565 of

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2005 by the Judicial First Class Magistrate Court, Chavakkad. The case arose from Crime No. 45 of 2003 of Chavakkad Police Station registered for the offences under Sections 324, 326 & 341 r/w Section 34 of the Indian Penal Code. In the FIR the petitioners were accused 1 & 2. The victim was the informant

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who stated to the police that the petitioners along with two others committed the offences. A few days later, the victim gave another statement to the police to the effect that the petitioners were not involved in the case. In the final report, the names of the petitioners do not find a place. Five other persons are

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shown as accused. The fifth accused died. Evidence was recorded. When the case came up for final hearing, the learned magistrate passed the following order;

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“At the time of hearing it is brought to notice that the main accused Sreenivasan and

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Crl.MC.No. 4082 of 2015

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..4..

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Mineesh were not made as accused in this case. They are the main culprit and their overt act clearly stated in the FIS. Apart from this before the doctor, the victim clearly stated these name, even though they were excluded from the array of accused. Without their presence no proper adjudication will be possible. So it is a fit case to invoke Section 319 of Cr.P.C. Hence Sreenivasan and Mineesh is made as accused No. 6 and 7 and defacto complainant is directed to furnish correct address of A6 and A7 within two days for issuing summons.”

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The learned magistrate took notice of the fact

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that the names of the petitioners were mentioned in the FI Statement; that apart,

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their names were mentioned to the doctor also. These are the only two reasons for the learned magistrate's adding them as additional accused. The order is patently illegal. Only on the basis of the evidence recorded in the case, the magistrate could have passed an order under Section 319 Cr.P.C. The Supreme Court has taken the view that unless there is a reasonable prospects of conviction, the court shall not invoke Section 319 Cr.P.C. The

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learned magistrate has passed the impugned

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Crl.MC.No. 4082 of 2015

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..5..

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order as if the FI Statement and the victim's statement to the doctor are substantive

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evidence. It stands out that the learned magistrate has not mentioned that in the evidence of any of the witnesses the petitioners' names have been disclosed as offenders. The order is liable to be set aside.

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In the result, this Crl.M.C. is allowed. The impugned order is set aside. The petitioners

are released.

Sd/-

K.ABRAHAM MATHEW

JUDGE

Bka/21.12.2018

Crl.MC.No. 4082 of 2015

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..6..

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE 1 TRUE COPY OF FINAL REPORT IN CC NO.565/2005 ANNEXURE 11 TRUE COPY OF THE COMPLAINT FILED IN CC NO 950/2009 BY THE DEFACTO COMPLAINANT

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ANNEXURE 111 CERTIFIED COPY OF THE ORDER DATED 214-2014 IN CC.NO.565/2005 PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS, CHAVAKKAD.

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ANNEXURE IV TRUE COPY OF FIR AND FIS IN CRIME NO. 45/2005 OF CHAVAKKAD POLICE

Sreenivasan v. State of Kerala

Case brief

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What did the court decide?

Sreenivasan v. State of Kerala

Case brief

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What did the court decide?

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