Ahammedkutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 13[TH] DAY OF JULY 2023 / 22ND ASHADHA, 1945** **CRL.REV.PET NO. 272 OF 2021** **AGAINST C.M.P. NO.2484/2020 IN C.C. NO.1091/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM** ## **REVISION PETITIONER/ADDL. 3rd ACCUSED:** **AHAMMEDKUTTY AGED 50 YEARS, S/O.VEERAN, MATHILAKATH PARAMBIL HOUSE, MAVOOR (P.O.), KOZHIKODE DISTRICT, PIN 673 661** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031** ***2 ALI.P AGED 55 YEARS, S/O ASSAIN, THENEPARAMBIL VEEDU, MAVOOR.P.O, KOZHIKODE DISTRICT, PIN-673661** ***(ADDL.R2 IS IMPLEADED AS PER ORDER DATED 15.09.2021 IN CRL.M.A. NO.2/2021 IN CRL.R.P. NO.272/2021** Crl.R.P. No.272/21 ## **-:2:-** **BY ADVS. SRI.K.A.NOUSHAD, PUBLIC PROSECUTOR SRI.M.VIVEK RABINDRANATH SRI.V.T.MADHAVANUNNI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.06.2023, THE COURT ON 13.07.2023 PASSED THE FOLLOWING:** Crl.R.P. No.272/21 **-:3:-** **BECHU KURIAN THOMAS, J. -------------------------------Crl.R.P. No.272 of 2021 ---------------------------------** Dated this the 13[th] day of July, 2023 ## **ORDER** An order issued under section 319 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”) is challenged in this criminal revision petition. 2. On the basis of an FIR registered as Crime No.292 of 2014 against eight accused, an investigation commenced. Later, the Investigating Officer deleted six out of the eight accused and filed a final report, arraying only two persons as accused. Cognizance was taken as C.C. 1091 of 2014 on the files of the Judicial First Class Magistrate's Court, Kunnamangalam and summons were issued to the accused. 3. When the trial started, PW1 was examined before the court. He deposed that on 23.06.2014 at 7 a.m., the accused had, in furtherance of their common intention, trespassed into his property and, after wrongfully restraining him, abused him with obscene words and also attacked him. He specifically gave Crl.R.P. No.272/21 ## **-:4:-** evidence that eight persons had attacked him and that he could identify the eight persons. Petitioner is alleged to be one of the eight persons who had attacked the defacto complainant. 4. Subsequently, an application was filed by the Assistant Public Prosecutor under section 319 Cr.P.C to add six persons, mentioned by PW1 during his deposition, as additional accused in the case. By the impugned order dated 22.12.2020 in C.M.P. No.2484 of 2020 in C.C. 1091 of 2014 on the files of the Judicial First Class Magistrate's Court, Kunnamangalam, the learned Magistrate found it necessary to invoke the power under section 319 Cr.P.C, and add those six persons as accused and also to issue process to them. The aforesaid order is impugned in this criminal revision petition. 5. I have heard Sri. R. Bindu Sasthamangalam, learned counsel for the petitioner and Sri. Noushad K.A. learned Public prosecutor. 6. Even though initially the FIR was registered against eight persons alleging that they had, in furtherance of their common intention, trespassed into the property of the defacto complainant and attacked him, subsequently, the Investigating Officer deleted six of the accused from the party array. By the Crl.R.P. No.272/21 ## **-:5:-** impugned order, the learned Magistrate has directed to include those six persons as additional accused in the case after finding that the evidence adduced so far, reveals the involvement of those persons. 7. The main contention urged in this revision petition relates to a plea of alibi raised by the petitioner, who is now arrayed as the third accused. The documents produced by the petitioner indicate that he arrived in India from abroad on 08.06.2014 and departed from the country on 18.06.2014. This fact is sought to be justified by reference to the photocopy of the passport of the petitioner. 8. On a reading of the impugned order, it is noticed that the learned Magistrate has perused the entire records and also the evidence adduced before coming to the conclusion that the six accused, who are referred to in the deposition of PW1, are liable to be added as additional accused. 9. The learned Magistrate also considered that though the FIR was initially registered against eight accused, the Investigating Officer had subsequently deleted those six persons and filed the final report. After appreciating the evidence already adduced on behalf of the prosecution, especially the evidence of Crl.R.P. No.272/21 ## **-:6:-** PW1, who was the injured witness, the court has come to the conclusion that there was sufficient evidence to proceed against the six persons who were deleted from the party array by the investigating officer. 10. Though the revision petitioner has produced a photocopy of his passport indicating that he had travelled out of the country on 18.06.2014, the same by itself is not a conclusive evidence as regards his absence in the country, though it can, in a trial, go a long way, in the absence of any other evidence to assume or to presume that he was outside the country. As rightly contended by the learned Public prosecutor, there are methods in which a party could illegally come down to the country despite travelling outside. Further, when a plea of alibi is raised by a party, it is for him to prove, at the time of trial, the said contention. At this stage, that too, in revisional jurisdiction, it is not proper for this Court to rely upon the photocopy of the passport produced to arrive at a conclusion that the revision petitioner was not even present in the country at the time of incident. The said contention is a matter which will have to be established during trial. 11. In this context it is apposite to refer to the decision in Crl.R.P. No.272/21 **-:7:-** **Joginder Singh and Another v. State of Punjab and Another** [(1979) 1 SCC 345]. In the said decision, it was held that the word ‘any person not being the accused’ occurring in section 319 of Cr.P.C would cover even persons who have been dropped by the police during the investigation but against whom evidence showing their involvement in the offence comes before the criminal court. 12. The only requirement for invoking the power under section 319 Cr.P.C is that there must be evidence to the satisfaction of the court that persons who were not already on record must be added as accused in view of the existence of sufficient evidence to proceed against them. Of course, the power under section 319 Cr.P.C is extraordinary and should be used only very sparingly and for compelling reasons. When the learned Magistrate before whom evidence was adduced indicating the presence of other persons also and the Magistrate proceeds to order addition of those persons as accused, in the absence of any manifest error or impropriety or irregularity, this Court will seldom interfere with such exercise of power. 13. In the decision in **Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others** [(1983) 1 SCC 1], it was Crl.R.P. No.272/21 **-:8:-** observed that the power under section 319 Cr.P.C is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other persons against whom action has not been taken. The Supreme Court observed that _“We would, however, make it plain that the mere fact that the proceedings have been quashed against respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it_ .” 14. In the above case, persons against whom proceedings were quashed were directed to be added as additional accused and the Supreme Court held that the power under section 319 Cr.P.C encompasses even the addition of persons against whom proceedings have been quashed. 15. In the light of the above propositions of law, and on a perusal of the impugned order of the learned Magistrate, this Court is of the view that merely because the Investigating Officer had dropped six of the eight accused from the party array earlier, the same by itself is not a reason to restrain the court from adding those persons as additional accused, if during the trial the Crl.R.P. No.272/21 **-:9:-** involvement is brought out. In the light of the above discussions, I find no reason to interfere with the impugned order. The criminal revision petition fails and is dismissed. Sd/- **BECHU KURIAN THOMAS** **JUDGE** vps Crl.R.P. No.272/21 ## **-:10:-** ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** **ANNEXURE A TRUE COPY OF THE PASSPORT OF THE REVISION PETITIONER** **/TRUE COPY/ PS TO JUDGE**