The newly added accused in S.C.No.716/12 on the file of the Additional Sessions Court, No-II, Kozhikode has filed this revision challenging the order in Crl.M.P.No.3577/2014.
2. The case of the prosecution in nutshell was that accused persons in furtherance of their common intention of committing murder of the de facto complainant on 11.04.2012 at 9.30 p.m inflicted injuries on the de facto complainant and caused serious injuries to him and thereby, they have committed the offence punishable under Section 307 read with Section 34 of Indian Penal Code.
3. The case was originally registered as Crime No.59/2012 of Kodenchery Police Station on the basis of the statement given by the de facto complainant against two accused persons including the present petitioner alleging offences under Section 307 read with Section 34 of Indian Penal Code. During investigation, the investigating officer filed Annexure V report stating that second accused shown in the First Information Report who is the present petitioner has not involved in the crime and he has been attempted to be falsely implicated in the case at the instance of the de facto complainant and his friends and his mobile tower location shows that, there was no possibility for him to be present there at that time and filed a report to delete him from the array of accused and after investigation, final report was filed only against the first accused confining the offence Section 307 of Indian Penal Code alone. After committal, the case was taken on file as S.C.No.716/12 by the Sessions Judge, Kozhikode and it was made over to Second Additional Sessions Court, Kozhikode for disposal. The original first accused appeared and charge was framed against him and thereafter, PWs 1 to 4 were examined and Exts.P1 to P3 were marked on the side of the prosecution. During the trial, these witnesses deposed the role played by the present petitioner as well and so, the Additional Public Prosecutor filed Annexure III petition under Section 319 of Code of Criminal Procedure to implead the present petitioner also as an additional accused and that was allowed by the learned Additional Sessions Judge by impugned Annexure IV order and the present petitioner was implicated as second accused and summons was ordered to him. This order is being challenged by the revision petitioner before this court.
4. Heard the Counsel for the revision petitioner and the learned Public Prosecutor.
5. The Counsel for the revision petitioner submitted that, though the name of the present petitioner was shown as second accused in the First Information Report, the investigating officer, after conducting investigation, found that there was no possibility for the second accused who is the present revision petitioner to be present at the place of occurrence and de facto complainant and his friends wanted to falsely implicate him in the case and filed Annexure V report to delete his name from the array of accused and also to delete Section 34 of Indian Penal Code and after investigation, it was found that first accused alone had involved in the commission of the crime and filed the final report. The court below simply relied on the evidence of the alleged eye witnesses including the de facto complainant without application of mind and without considering Annexure V report, mechanically allowed the application filed by the Additional Public Prosecutor and impleaded the present petitioner as additional accused which is unsustainable in law and the same is liable to be set aside. Further, he prayed for remitting the case to the court below for fresh consideration to be analysed by the court below in the light of Annexure V report and pass appropriate orders in the petition filed by the Public Prosecutor to implead the present petitioner as additional accused.
6. The learned Public Prosecutor submitted that the evidence will go to show that, he had involved in the commission of the crime. Further, wanted this court to make an observation that the circumstances under which Annexure V report has been filed has to be independently investigated by the Department and no illegality has been committed by the court below in passing the order.
7. It is an admitted fact that on the basis of the statement given by the de facto complainant-injured, Crime No.59/12 of Kodenchery police station was registered originally against two accused persons including the revision petitioner herein alleging offences under Section 307 read with Section 34 of Indian Penal Code. It is also seen from the documents produced that, during investigation, the investigating officer found that there was no possibility for the second accused to be present at the place of occurrence and there was a possibility of false implication and filed Annexure V report to delete his name and also Section 34 of Indian Penal Code and ultimately, after investigation, final report was filed only against the present first accused alone for the offence under Section 307 of Indian Penal Code.
8. It is settled law that, during the course of trial, on the basis of evidence, if the court is satisfied that any other person other than the person arrayed as accused in the case has involved in the case in the commission of the crime, then, court can invoke the power under Section 319 of Code of Criminal Procedure and implead him as a party to the proceedings. Merely because the investigating officer has filed Annexure V report is not a ground for rejecting the prayer for impleading an additional accused, if there is evidence before the court for that purpose. Further, in this case, injured CW1 was examined as PW1 and CW2 was examined as PW2 and the Doctor was examined as PW3.
9. In Ext.P2 wound certificate, the cause of injury was given as:
“ V , V O ] V O ] ] ×] ÿO.”
So, at the first instance itself, the name of the present petitioner has been mentioned as one of the assailants by the injured. PW1 had deposed that the present petitioner had shouted:
“ U V. .”
and it is on that basis that the first accused had stabbed the injured. CW2 also stated that the present petitioner had shouted:
“ U V. .”
and it is on that basis that first accused had stabbed the injured and inflicted the injury.
10. Further, in the decision reported in Michael Machado and Another Vs. Central Bureau of Investigation and Another [(2000) 3 Supreme Court Cases 262], the Honourable Supreme Court has held that power vested under Section 319 is discretionary in nature and when such trial court deals with an issue as to whether a person is to be added as additional accused or not, the said discretion should be exercised judicially and very sparingly. It is further observed that the court must keep in mind the entire evidence as on the date of the consideration of the issue and also the materials and evidence pressed in the service for invoking Section 319 of Code of Criminal Procedure.
11. Further, in the decision reported in Ram Pal Singh & Ors. Vs. State of U.P. & Anr. [AIR 2009 SC 1723], the Honourable Supreme Court has held that for invoking the power under Section 319 of Code of Criminal Procedure, it has to be satisfied from evidence before the court that a person against whom no charge had been framed, but, whose complicity appears to be clear should be tried together with the other accused.
12. Further, in the decision reported in Suman Vs.
State of Rajasthan and Another [(2010) 1 Supreme Court Cases 250], the Honourable Supreme Court has held that the person who is named in the First Information Report or in the complaint, but, against whom police does not launch prosecution or file charge sheet or drops the case can be proceeded against under Section 319 of Code of Criminal Procedure. In the same decision, it has been observed that, it must be exercised to achieve criminal justice.
13. In the decision reported in Dharam Pal & Ors. Vs.
State of Haryana & Anr. [AIR 2013 SC 3018], the Honourable Supreme Court has held that even without recording the evidence upon committal order under Section 209 of Code of Criminal Procedure, at the time of taking cognizance itself, if the Sessions Judge is satisfied on materials that persons other than those shown as accused are involved, the Sessions Judge may issue summons to those persons shown in the column 2 of the police report to stand trial along with those already named therein.
14. Further, in the decision reported in Soyi Vs. State of Kerala [2006 (1) KLT 32], this court has held that even without subjecting the witness to cross examination, if the court is satisfied regarding the involvement of any other person other than the person arrayed as accused, then, that can be relied on by the court for the purpose of implicating the other person as accused. The same view has been reiterated in the decision reported in Bholu Ram Vs. State of Punjab [2008 (4) KLT SN 51 (C.No.47) SC] by the Honourable Apex Court.
15. So, it is clear from the dictum laid down in the above decisions that at that stage, the court need only satisfy that the person other than the person who have been arrayed as an accused has involved in the commission of the crime and he has to be tried along with the other accused persons to meet the ends of criminal justice. But, at the same time, in all those cases, the courts have held that this power must be used sparingly and only if the evidence is satisfactory and it should not be used mechanically so as to bring an innocent person to face criminal prosecution.
16. In this case, it is seen from the First Information Statement that, the involvement of the present petitioner has been specifically mentioned and the name of the petitioner has been mentioned to the Doctor also as one of the person who had inflicted injury. The injured and eye witness who were examined as PWs 1 and 2 have deposed before the court that, it was at the instigation of the present petitioner that the first accused had inflicted injuries on the injured. So, under the circumstances, it cannot be said at this stage that the court has mechanically without application of mind, invoked Section 319 of Code of Criminal Procedure to implicate the present petitioner as an additional accused invoking the power under Section 319 of Code of Criminal Procedure. I am not at this stage, going into the question as to whether the court below has to rely on Annexure V report or not, whether the defence can use the same as evidence in their favour and its evidential value etc., at this stage as these are matters to be considered by the court below on the basis of evidence. So, there is no merit in the submission made by the Counsel for the revision petitioner that there is no satisfactory evidence available to invoke Section 319 of Code of Criminal Procedure as against the petitioner to implicate him as an accused. Otherwise, the materials on record as explained in the order shows that there is prima facie material for the court to come to a satisfactory conclusion that the present petitioner also involved in the commission of the crime so as to invoke the power under Section 319 of Code of Criminal Procedure and no illegality has been committed by the court below in passing the impugned order. So, the revision lacks bona fides and merit and the same is liable to be dismissed.
In the result, the petition is dismissed.
Office is directed to communicate this order to the concerned court immediately. The interim order passed by this court in Crl.M.A.No.6861/14 is vacated and the petition is dismissed.
Bb Sd/-
K.Ramakrishnan, Judge.
[True copy] P.A to Judge