Dismissed

Mainadi Razak v. State of Kerala

Kerala HC6 Dec 2021Crl.MC/758/2021

Case brief

AI extract

What is this about?

This criminal miscellaneous petition challenged an order impleading the petitioner as an additional accused under Section 319 CrPC against the factual backdrop of an assault case. The High Court confirmed that the inference of common intention was justified by the First Information Statement and held there was no ground to interfere.

What did the court decide?

The Criminal Miscellaneous Case was dismissed as devoid of merits.

Mainadi Razak Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2021)

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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.HARIPAL

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MONDAY, THE 6^TH DAY OF DECEMBER 2021 / 15TH AGRAHAYANA, 1943

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CRL.MC NO. 758 OF 2021

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C.M.P. NO. 4353/2018 IN CC 2386/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, KASARAGOD

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CRIME NO. 70/2013 OF ADHUR POLICE STATION

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PETITIONER:

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MAINADI RAZAK AGED 55 YEARS S/O. M.HASSAINAR HAJI, MAINADI HOUSE, PANDI P.O., ADHUR VILLAGE, KASARAGOD-671 543

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BY ADVS.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SRI.VIMAL VIJAY

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RESPONDENTS/COMPLAINANT & ACCUSED:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (CRIME NO.70/.2013 ON THE FILE OF ADHUR POLICE STATION, KASARAGOD DISTRICT)

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2 ABDULLA.P., AGED 59 YEARS S/O.M.HASSAINAR HAJI, MAINADI HOUSE, P.O PANDI, ADOOR VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT, PIN-671 543

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3 HAMEED.M. AGED 54 YEARS S/O.M.HASSAINAR HAJI,

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Crl.M.C.No.758 OF 2021 2

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MAINADI HOUSE, P.O PANDI, ADOOR VILLAGE KASARAGOD TALUK, KASARAGOD DISTRICT, PIN-671 543

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BY SRI. RENJITH T.R., SENIOR PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No.758 OF 2021 3

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ORDER

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The petitioner is aggrieved by Annexure C order of the

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Judicial First Class Magistrate’s Court – I, Kasaragod dated 30.11.2019 by which a Criminal Miscellaneous Petition moved by the Public Prosecutor under Section 319 of the Code of Criminal Procedure was allowed and the petitioner was arrayed as the additional third accused in C.C. No. 2386/2013 pending trial before that court.

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The facts of the case are as follow:-

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Crime No. 70/2013 of Adhur police station was registered on 08.01.2013 on the strength of the First Information Statement given by one Hameed, the injured in the case. The allegation is that while the defacto complainant was returning on his bike after the day’s work, at Mynadi at 6.30 P.M., Mynadi Abdulla and his younger brothers, Hameed and Razak reached there in a pick-up autorickshaw, restrained his bike, dragged him out of the two wheeler and attacked him with a sword and caused him injuries and on that basis, the crime was registered. After investigation, charge sheet was laid, however, against the said Abdulla and Hameed only, leaving Razak on the array of parties. The trial was commenced

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Crl.M.C.No.758 OF 2021 4

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and when the injured was examined as PW1, he spoke about the involvement of Razak as well, sticking to the First Information Statement. On that basis, the Public Prosecutor moved the said Crl. M.P. under Section 319 of the Cr.P.C. for impleading the said Razak as the third accused. By the impugned order the learned Magistrate allowed that petition and aggrieved by the same, petitioner has moved this Court under Section 482 of the Cr.P.C.

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I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor.

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Relying on the further statement of the said Hameed, the injured, produced as Annexure E, the learned counsel wanted to convince the court that the defacto complainant had clarified that even though the said Razak was present at the place of occurrence, he did not commit any overt act and the name of the said Razak was deleted on that basis only. Referring to Annexures E to K the previous statements of CWs 1 to 7, the learned counsel submits that none of them has spoken about the involvement of the petitioner, nor there is evidence that he had shared common intention of the other two accused persons. So according to the learned counsel, the trial court went wrong in invoking Section 319

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Crl.M.C.No.758 OF 2021 5

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of the Cr.P.C and therefore, that order is sought to be quashed.

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After hearing counsel on both sides, I am not convinced that there is reason for interfering with the order under challenge. As indicated earlier, in the First Information Statement, signed statement given by the said Hameed, involvement of the petitioner has been specifically stated. It is the specific case that all the three brothers had reached there in a pick-up autorickshaw, wrongfully restrained him and assaulted and injured him. In the further statement recorded under Section 161 of the Cr.P.C., name of the petitioner has not been mentioned and may be on the strength of the statement that report was given by the Investigating Officer deleting the name of the third accused from the array of parties. But when examined before court as PW1, the defacto complainant has stuck to the earlier stand given in the signed statement, the First Information Statement. In the circumstance, there is amble justification in the court invoking Section 319 of the Cr.P.C. which is a discretionary remedy.

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The question whether he was actually involved in the commission of the crime, whether he had shared common interest etc., can be decided only after analysing the entire evidence. In the

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Crl.M.C.No.758 OF 2021 6

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circumstances, there is no reason to interfere with the order under

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challenge.

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The Crl.M.C. is devoid of merits and is dismissed.

SD/-

K.HARIPAL

JUDGE

DCS/06.12.2021

Crl.M.C.No.758 OF 2021 7

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APPENDIX

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PETITIONER'S ANNEXURE

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ANNEXURE-A	CERTIFIED COPY OF CMP 4353/2018 IN CC NO.2386/2013 FILED BY THE 1ST RESPONDENT BEFORE JUDICIAL 1ST CLASS MAGISTRATE-I, KASARAGOD
ANNEXURE-B	TRUE COPY OF COUNTER FILED BY THE RESPONDENTS 2 AND 3 IN CMP NO.5353/2018 IN CC NO.2386/2013 BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE-I, KASARAGOD
ANNEXURE-C	CERTIFIED COPY OF THE ORDER DATED 30.11.2019 IN CMP NO.4353/2018 IN CC NO.2386/2013 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE-I, KASARAGOD
ANNEXURE-D	CERTIFIED COPY OF THE FIR DATED 08.02.2013 IN CRIME NO.70/2013 OF ADHUR POLICE STATION
ANNEXURE-E	TRUE COPY OF THE STATEMENT OF CW1 DATED 09.02.2013
ANNEXURE-F	TRUE COPY OF THE STATEMENT OF CW2 DATED 09.02.2012
ANNEXURE-G	TRUE COPY OF THE STATEMENT OF CW3 DATED 09.02.2013
ANNEXURE-H	TRUE COPY OF THE STATEMENT OF CW4 DATED 09.02.2013
ANNEXURE-I	TRUE COPY OF THE STATEMENT OF CW5 DATED 10.02.2013
ANNEXURE-J	TRUE COPY OF THE STATEMENT OF CW6 DATED 09.02.2012
ANNEXURE-K	TRUE COPY OF THE STATEMENT OF CW7 DATED 09.02.2012

Mainadi Razak v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mainadi Razak v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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