The newly added 3rd accused in C.C.No.922/2010 on the file of the Judicial First Class Magistrate Court, Kayamkulam, has filed this revision, challenging the order implicating as accused as per the order in C.M.P.No.3546/2013.
2. The case was registered on the basis of the statement given by the injured/ defacto-complainant/ against three accused persons including the revision petitioner, alleging offence under Section 447, 323 and 294(b) read with Section 34 of the Indian Penal Code. After investigation final report was filed, confining to two accused alone, deleting the present revision petitioner from the array of accused. Two accused persons against whom final report was filed and after framing charge trial against them was proceeded with. PWs 1 to 7 were examined and during the course of trial, the involvement of present petitioner was also brought out and when the defacto-complainant came to know that, the present revision petitioner has been deleted from the party array, he filed C.M.P.No.3546/2013 for impleading the present revision petitioner also as additional accused, invoking the power under Section 319 of the Code of Criminal Procedure and after considering the allegations and the evidence, learned magistrate allowed the application and the present revision petitioner was arrayed as 3rd accused and summons was issued to him. On receipt of the summons, the petitioner challenged that order by filing this revision.
3. Since the defacto-complainant also appeared, this court felt that, the revision can be admitted, heard and disposed of on merit. So the revision is admitted, heard and disposed of today on merit.
4. The counsel for the revision petitioner submitted that, court below had not applied its mind properly. In fact, the evidence of prosecution witnesses has not been discussed by the court below, before coming to the conclusion that, there is evidence sufficient for the purpose of implicating the present revision petitioner as additional accused, invoking the power under Section 319 of the Code of Criminal Procedure. Further, the present revision petitioner was shown as 3rd accused in the first information report and on the basis of the additional statements given by the witnesses including the defacto-complainant and other injured, his name was deleted on the ground that, he was not present at the time when the alleged incident happened and that report was accepted by the court and so court below is not justified in changing that view, on the basis of the evidence now available and the evidence is also not consistent and not sufficient for conviction. He had relied on the decisions reported in Biju Gopalan and Another v. State of Kerala and Others (2009 KHC 421) and Ram Singh and Others v. Ram Niwas and Another [(2009) (14 S.C.C 25)] and Sarabjit Singh and Another v. State of Punjab and Another (AIR 2009 (S.C.) 2792) in support of his case.
5. On the other hand, the counsel for the additional 2nd respondent namely, the defacto-complainant submitted that, the evidence of PWs1, 2, 4 and 7 will go to show the presence of the revision petitioner at the time of incident and his involvement. So under the circumstances, the court below was perfectly justified in relying on their evidence and invoking the power under Section 319 of the Code of Criminal Procedure, rightly implicated the present revision petitioner as 3rd accused and that order does not call for any interference.
6. It is an admitted fact that, on the basis of the statement given by the defacto-complainant, PW3, the head constable attached to Kayamkulam Police Station went to V.S.M. hospital, Mavelikkara, and recorded Ext.P1 statement of the injured and his wife and also prepared Ext.P1(a) and P1(b) body mahazers of the injured persons, who were undergoing treatment in that hospital and came back to police station. PW6 the Sub Inspector of police, on the basis of Ext.P1 registered a case as Crime No.884/2010 of Kayamkulam police station, against three accused persons including the present revision petitioner under Section 447, 323 and 294(b) read with Section 34 of the Indian Penal Code, as Ext.P3 and the investigation was conducted by CW8 as instructed by him and after investigation, he verified the investigation records and filed final report. It is also seen from the final report that, CW8 filed a report, deleting the name of the present revision petitioner on the basis of the alleged additional statements said to have been given by PW1 and PW2 confining the case to accused Nos. 1 and 2 alone.
7. Section 319 of the Code of Criminal Procedure gives power to the court to implead any other persons, who have not been made accused, if their involvement is brought out during the course of enquiry or trial, on the basis of evidence which reads as follows:
319. Power to proceed against other persons appearing to be guilty of offence.-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then -
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
8. In the decision reported in Sarabjit Singh and Another v. State of Panjab and Another (AIR 2009 (S.C.) 2792), the Hon'ble Supreme Court has observed that, “an order under Section 319 of the Code of Criminal Procedure, therefore should not be passed only because the first informant or one of the witnesses seeks to implead the other person. Sufficient and cogent reasons are required to be assigned by the court, so as to satisfy the ingredients of the provision. Mere ipse dexit would not serve the purpose. Such an evidence must be convincing one, at least for the purpose of exercise of extra ordinary jurisdiction. For the above mentioned purpose, courts are required to apply stringent steps. One of the steps being whether the evidence on record is such, which would reasonably lead to conviction of the persons sought to be summoned. It is also observed that, different standards are required to be applied at different stages, whereas the test of prima face case may be sufficient for taking cognisance of an offence, at the time of framing charge; court must be satisfied that, there exists strong suspicion, while framing charge in terms of Section 227 of the Code; the court must consider the entire materials on record to form an opinion that, the evidence if unrebutted would lead a judgment of conviction. Whether, higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions must be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to some other person as an additional accused is laid down, the ingredients thereof viz: i) an extra ordinary case and ii) a case on exercise of the jurisdiction would not be satisfied.”
9. The same view has been reiterated in the decision reported in Biju Gopalan and Another v. State of Kerala and Others (2009 KHC 421) and Ram Singh and Others v. Ram Niwas and Another [(2009) (14 S.C.C 25)]. Further in the decision reported in Suman v. State of Rajasthan and Another (AIR 2010 (S.C.) 518), the Hon’ble Supreme Court has held that, a person who is given the first information report or complaint with the allegation that he /she has committed any particular crime or offence, that against whom the police does not launch prosecution or filed charge-sheet or drop the case can be proceeded against under Section 319 of the Code of Criminal Procedure, if from the evidence collected/ produced in the course of any enquiry in tune of the trial of the offence, court is prima face satisfied that, such person has committed any offence, for which, he can be tried with other accused. That was a case where in the statement alleging offence under Section 498A of the Indian Penal Code, there were specific allegation against sister-in-law has been made along with others, but police did not charge- sheet sister-in-law on the ground that, she was living in a different place. But when the complainant was examined before the court, she had deposed about the involvement of the sister-in-law and on that basis, the court below on application had invoked the power under Section 319 of the Code of Criminal Procedure and implicated sister-in-law also in the case as additional accused under Section 319 of the Code of Criminal Procedure and that was challenged and the Hon'ble Supreme Court has held that, merely because she was dropped by the investigating officer, though allegations were made against her in the first information statement, is not a ground to deny the power of the court to implicate the said person as an additional accused in the case, if the evidence of the defacto- complainant is such to the satisfaction of the court regarding the involvement of that person also in the commission of the crime, invoking the power under Section 319 of the Code of Criminal Procedure. Same is the case on facts in this case also.
10. In this case, the first information statement namely Ext.P1, PW1 had mentioned about the involvement of the present petitioner also and in fact the allegations were such that, it is at the instigation and in the presence of the revision petitioner that the other two accused persons have committed the alleged offence. It is true that, there was some additional statements said to have been recorded of these witnesses to the effect that they have stated that the present revision petitioner was not present at the place of occurrence, at the time of alleged incident. But when PW1 was examined before the court, he had categorically stated that, he was questioned only once by the police and that too was brought out in the cross examination of the defense counsel, who was appearing for the accused in the case. He had categorically stated in his evidence regarding the involvement of the present revision petitioner and motive for him to commit the offence and also the overt act committed by him. His evidence was supported by the evidence of PW2, who is none other than the mother of PW1, who also sustained injury in the incident. She had also stated about the overt act committed by all the accused persons including the present revision petitioner. PW4 is an independent witness to the incident. He had stated that, he was present at the time when the incident occurred. He had also stated about the presence of three accused persons including the present revision petitioner and he had also stated about the overt act alleged to have been committed by the accused persons, which he had seen at the time when he reached the place. PW3 is the head constable attached to Kayamkulam police station, who went to the hospital and recorded the statement of PW1 and also body mahazers of the injured persons, who were undergoing treatment in the hospital and he was not cross examined as well. PW7 is the father of PW1 and husband of PW2 had also deposed about the involvement of all the three accused persons in the incident. He had also categorically stated about the presence and participation in the commission of the crime of the present revision petitioner. PW6 is the charging officer and the person who registered the first information report on the basis of Ext.P1 statement. He had not conducted any investigation. CW8 is the investigating officer, who had said to have given a report deleting the revision petitioner was not examined as well.
11. So it is on the basis of the evidence given by PWs1, 2, 4 and 7 and when it was brought out to the notice of PW1 that, the present revision petitioner has not been implicated as an accused in the case, he filed the petition as C.M.P.No.3546/2013 for implicating the present petitioner also as an additional accused under Section 319 of the Code of Criminal Procedure. The court below relying on the decision reported in Sarojben Ashwinkumar Shah and Others v. State of Gujarat and Another (2011 KHC 4679) observed that, the application for impleading an additional accused on the basis of the application filed by defacto-complainant is maintainable and proceeded with the application. Though court below had not specifically extracted the evidence of each witness for formation of such opinion that, the involvement of the revision petitioner and the presence of revision petitioner is also satisfactorily made out, a reading of the order will go to show that, court below had evaluated the materials available on record before coming to such a conclusion. It is true that, Section 319 should be used only if the court is satisfied that, the evidence collected shows or satisfies the involvement of the persons sought to be implicated as an additional accused as well. But it is not necessary that, court should form the opinion that, he is liable to convicted for the offence alleged, on the basis of the evidence available, but only has to come to a satisfactory conclusion that, the evidence adduced on the side of the prosecution is sufficient to lead to the finding of conviction and actual conviction is possible or not has to be considered after the appearance of the newly added party and contested the case and after cross examination of the witnesses, to form the opinion as to whether that evidence is sufficient for come to a conclusion that prosecution has proved beyond reasonable doubt about the involvement and commission of the offence by that person as well. So at the time when the power under Section 319 invoked, the court need only to consider whether there is a possibility of conviction, whether he is liable to be convicted or not is matter to be considered after the appearance of the parties. On going through the evidence of PWs 1, 2, 4 and 7, this court also feels that, the involvement of the present petitioner has been made out and the overt act alleged against him and the role played by him and the allegation of the motive against him are also shows that, prima face there is a possibility of conviction on the basis of evidence available.
12. It is also settled law that, for the purpose of coming to such conclusion, it is not necessary that, he must be subject to cross examination as well. Even without cross examination, if on the basis of the chief examination, if it is brought out that, any other person other than the present petitioner shown as accused also involved in the commission of the crime, then court can invoke the power under Section 319 of the Code to implicate him as an accused in the case.
So under the circumstances, it cannot be said that, the court below has committed any illegality in invoking the power under Section 319 of the Code in this case, on the basis of the evidence available to implicate the present revision petitioner as additional accused in the case and the revision lacks merits and the same is liable to be dismissed.
In the result, the revision is dismissed.
Interim order dated 26.06.2014 is vacated. Office is directed to communicate this order to the concerned court, immediately.
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K. RAMAKRISHNAN, (Judge) // True Copy// P.A. to Judge ss