George Samuel v. State of Kerala and Samuel George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 25TH DAY OF SEPTEMBER 2012/3RD ASWINA 1934** ## **Crl.MC.No. 2915 of 2012 (D)** **--------------------------------------[CRL.R.P.NO.21/11 OF THE ADDL. SESSIONS COURT-I, MAVELIKKARA DTD. 13/07/2012]** **.............** ## **PETITIONER/ACCUSED:** **----------------------------------** **GEORGE SAMUEL, AGED 47 YEARS, S/O G. SAMUEL, VALIYAPARAMBIL, VETTIYAR P.O, MAVELIKKARA.** **BY ADVS.SRI.R.SUNIL KUMAR, SMT.A.SALINI LAL.** ## **RESPONDENT/COMPLAINANT:** **--------------------------------------------** **1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031.** **2. SAMUEL GEORGE, AGED 53 YEARS, S/O SAMUEL YOHANNAN, KIZHAKKEDATHU VEEDU, THANNIKUNNU P.O., VETTIYAR, MAVELIKKARA PIN:690 514.** **R1 BY PUBLIC PROSECUTOR SRI. RENJITH, R2 BY ADV. SMT.ASHA ELIZABETH MATHEW.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-09-2012, THE COURT ON 25/09/2012 PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.2915/2012-D:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE 1: COPY OF THE LAWYERS NOTICE. ANNEXURE 2: COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT. ANNEXURE 3: COPY OF THE SWORN STATEMENT GIVEN BY THE 2ND RESPONDENT. ANNEXURE 4: COPY OF THE CHARGE. ANNEXURE 5: COPY OF THE C.M.P NO:2085/10. ANNEXURE 6: COPY OF THE ORDER IN C.M.P.NO:2085 OF THE JFMC-II, DATED 7.4.11. ANNEXURE 7: COPY OF THE ORDER IN CRL.R.P.NO:21/11 OF THE ADDL. SESSIONS COURT, MAVELIKKARA DATED 13.7.12.** ## **RESPONDENTS' ANNEXURES: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **S.S.SATHEESACHANDRAN, J.** **-----------------------------------------------** Crl.M.C.No.2915 of 2012 **----------------------------------------------Dated this the 25[th ] day of September, 2012** ## **O R D E R** Petitioner is an accused in a pending case on the file of the Judicial Magistrate of the First Class-II, Haripad. He is being prosecuted on a complaint filed by the 2[nd] respondent over a dishonoured cheque. Cognizance of the offence under Section under Section 138 of the Act of the Negotiable Instruments Act, 1881 (for short “the Act”) was taken on the complaint, and the trial proceeded. However, after recording of the evidence, the magistrate altered the charge to include offences under Sections 420 and 468 of the Indian Penal Code {for short “the IPC”}. Such alteration of the charges was made in the light of the materials tendered in the case disclosing Cr.M.C.No.2915 of 2012 :: 2 :: that the cheque allegedly handed over by the petitioner/accused and later dishonoured arose from the account of another, his father. After such alteration of charges, procedure for trial of a warrant case followed. After enquiry under Section 244(1) of the Code of Criminal Procedure {for short “the Code”} recording the evidence of complainant afresh and being satisfied from such evidence, and forming an opinion, that there is ground to presume that the accused has committed the offences imputed, the magistrate framed charge against him for the offences stated supra. Petitioner/accused pleaded not guilty. Complainant thereafter moved an application for including the drawer of the cheque, father of the petitioner as a co-accused in the case invoking the powers of the court under Section 319 of the Code. Even in his Cr.M.C.No.2915 of 2012 :: 3 :: complaint and also evidence, joint culpability of the proposed accused with the petitioner has been specifically imputed/stated was his case in making such request. Learned magistrate, after hearing both sides, allowed that application vide Annexure-6 order. Petitioner challenged that order filing a revision. Sessions Judge turned down that revision vide Annexure-7 order. Propriety and legality of Annexure-6 order of the magistrate affirmed by Annexure-7 order of the Sessions Judge in revision, is challenged in the above petition invoking the inherent powers of this court under Section 482 of the Code. 2. Learned counsel for the petitioner, relying on Ram Singh and others v. Ram Niwas and another {2009 (14) SCC 25} and Sarabjit Singh v. State of Punjab {2009 (16) SCC 46} contended that for invoking Section 319 of the Code, to add a new Cr.M.C.No.2915 of 2012 :: 4 :: accused during the course of the trial of the case, prima facie case to do so is not enough, but there should be strong ground on the materials placed before the court that the exercise of that extraordinary power is required to secure the ends of justice. Sufficient and cogent reasons are required to be stated by the court for invoking such extraordinary jurisdiction to add a new accused in the case, is the further submission of the counsel. Learned counsel emphasizing on the observation made in Sarabjit Singh's case that a prima facie case may be sufficient for taking cognizance of an offence at the time of framing of the charge, but, to invoke extraordinary jurisdiction under Section 319 of the Code the court must consider the entire materials on record and must arrive at a decision that the evidence adduced on behalf of the Cr.M.C.No.2915 of 2012 :: 5 :: prosecution, if un-rebutted, would lead to conviction of person/s sought to be added as an accused in the case. What has been stated by the learned Magistrate in Annexure-6 order is only satisfaction of a prima facie case to invoke the extraordinary jurisdiction under Section 319 of the Code, and such an order is patently unsustainable, is the submission of the counsel. Affirmation of Annexure-6 order in Annexure-7 order makes no difference where Annexure-6 order itself is patently unsustainable, is the further submission of the counsel. After going through Annexure-6 and Annexure-7 orders with reference to the submissions made by the counsel on both sides and also other materials tendered as well, I am not satisfied that exercise of inherent jurisdiction as canvassed for is called for to Cr.M.C.No.2915 of 2012 :: 6 :: interfere with the orders under challenge in the petition. Merely because the magistrate has in Annexure-6 order used the expression 'prima facie' while forming an opinion on the materials placed to invoke his jurisdiction under Section 319 of the Code to add another as a co-accused in the case, it does not follow that there was an erroneous exercise of jurisdiction. On the contrary Annexure-6 order would indicate that he has applied his mind on the materials on record, and also the allegations raised in the complaint as well, and then, arrived at a conclusion that addition of the proposed accused against whom some imputations are made in the complaint and also evidence is necessary. Learned Sessions Judge, after perusing the records of the case, has affirmed Annexure-6 order of the magistrate. Petitioner who had Cr.M.C.No.2915 of 2012 :: 7 :: invoked revisional jurisdiction to assail Annexure-6 order in view of the interdiction under Section 399(3) of the Code, at least, for the time being, has to accept that order as final. No doubt, this court is not interdicted by subsection(3) of Section 399 of the Code in examining the correctness of the order passed in revision, but that can be done only sparingly in a deserving case. The case in hand, as already indicated, does not call for exercise of inherent jurisdiction to examine the propriety of Annexure-6 and Annexure-7 orders passed during the course of the trial in the case. If any prejudice has been caused to the petitioner/ accused by adding of a co-accused during trial, or any other sustainable ground available to impeach such addition, he can do so, if any adverse decision is rendered against him after Cr.M.C.No.2915 of 2012 :: 8 :: trial, in his appeal setting forth such challenges as well, if so advised. Reserving the petitioner's right to do so, the petition is dismissed. Sd/- **(S.S.SATHEESACHANDRAN) JUDGE** **sk/-** **//true copy//**