Jose Thomas v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 7TH JULY, 2008 / 16TH ASHADHA, 1930 **Crl.MC.No. 2506 of 2004 (C)** (CRRP.23/2003 of SESSIONS COURT, PATHANAMTHITTA CMP 6687/2003 in CC.210/1996 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA) .................... PETITIONER/PETITIONER/PETITIONER: -------------------------------------------------- JOSE THOMAS, ASSISTANT MANAGER, (THEN CASHIER), INDIAN OVERSEAS BANK, THIRUVALLA BRANCH NOW AT KANDAPEROOR BRANCH, RESIDING AT MANATHUSSERIL HOUSE, H.NO.99, J.P.NAGAR, STAGE 2, TIRUVALLA 689 111. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI ## RESPONDENT/RESPONDENT/RESPONDENT: ----------------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K. MOHANAN, J. ------------------------------------Crl.M.C.No. 2506 of 2004 --------------------------------------** Dated this the 7[th] day of July, 2008 ## **JUDGMENT** The additional 4[th] accused in C.C.No. 210/1996 on the file of the Chief Judicial Magistrate Court, Pathanamthitta is the petitioner herein. In this proceedings, he challenges Annexures B and C orders passed by the court below. 2. The Sub-inspector of Police, Koipram in Crime No. 171/1995 filed a final report after investigation against the three accused for the offence punishable under sections 324 and 332 read with section 34 of I.P.C. before the Chief Judicial Magistrate Court, Pathanamthitta. The allegation in the above crime is that while the complainant was attending the duty after opening the bank, the accused without permission entered into the bank and first accused by using ledger book gave blow on the left cheek of the complainant and the second accused holding on his hair, beat him on his **Crl.M.C.No. 2506 / 2004** **2** right hand and the third accused dragged him by holding hand and beat on the hip and the fourth accused after holding the complainant kicked on his left. Accused Nos.1 to 4 kicked him on various parts of the body and prevented him from discharging his duty. Thus, the accused had committed the offences punishable under sections 447, 332 and 34 of I.P.C. On the basis of the above allegations, a crime was registered and the police undertook the investigation and finally, filed the report dated 31/07/1996. In the final report, there were only three accused and the petitioner was not made an accused by the Police. On the basis of such report, the court took cognizance and instituted C.C.No.210 of 1996 before the court below for the offences punishable under Sections 324, 332 read with Section 34 I.P.C. 3. Accordingly, the trial was commenced before the court below and the de facto complainant was examined as PW1 and marked Ext.P1 First Information Statement. During the course of evidence, PW-1 **Crl.M.C.No. 2506 / 2004** **3** implicated the petitioner herein for the offence alleged in Ext.P1. When PW1 filed a petition as C.M.P.No.8108 of 1997 to implead the petitioner herein as the fourth accused, it was allowed by the court below. Challenging the above order, the petitioner herein had preferred a revision petition i.e., Crl.R.P.No.2 of 1998 before the Sessions Court, Pathanamthitta and the same was dismissed with the observation that the petitioner was at liberty to move the trial court to get discharged from the array of accused at the time of framing charge. Thus, the petitioner herein preferred C.M.P.No.6867 of 2003 before the trial court seeking an order to discharge him under Section 245 of the Code of Criminal Procedure. That petition was dismissed by the learned Magistrate against which the petitioner herein had preferred Crl.R.P.No.23 of 2003. By order dated 28.7.2004, the Sessions Court dismissed the second revision petition also filed by the petitioner. It is the above order of second revision petition as well as the order dated **Crl.M.C.No. 2506 / 2004** **4** 7.8.2003 in C.M.P.No.6867 of 2003 are challenged in this proceedings under Section 482 of the Code of Criminal Procedure. 4. I have heard learned counsel for the petitioner as well as the learned Public Prosecutor. 5. Learned counsel for the petitioner submits that at present, the main grievance of the petitioner is against the dismissal of his petition for discharge, though the court arrayed him as additional fourth accused in an earlier occasion under Section 319 of Cr.P.C. According to the learned counsel for the petitioner, the court below ought to have allowed the petition filed by the petitioner for discharge, as there is no material or evidence before the court below to frame a charge against the petitioner herein. The learned counsel pointed out that in the First Information statement, CW1 who is now examined as PW1, had mentioned about one George Thomas as bank employee. Further, CW1 on 29.9.1995 itself gave an additional **Crl.M.C.No. 2506 / 2004** **5** statement stating that he mentioned to the Police about the assailant, Mr.Jose Thomas, but it was mistakenly recorded as George Thomas.The learned counsel submits that if the parties are familiar and have prior acquaintance, there is no scope for incorrectly mentioning the name of the assailant. The learned counsel further submits that the very same statement of the de facto complainant reveals that the person viz., Jose Thomas was not present at the scene of occurrence and thus, the defence case is more probable. The learned counsel for the petitioner further pointed out that by filing a petition dated 2.10.1995, the Police removed the name of the petitioner 'Jose Thomas' from the array of accused and thereafter by closing the investigation, they filed a final report dated 31.7.1996 in which also the petitioner's name is also not included in the array of accused and the Police have ruled out the role of the petitioner connected with the said occurrence. Therefore, according to the counsel, the **Crl.M.C.No. 2506 / 2004** **6** evidence now given by PW1 implicating the petitioner as one of the accused with oblique notice and thereupon arraying thepetitioner as 4[th] accused is absolutely illegal. 6. Per contra, the learned Public Prosecutor submits that the petitioner is not a stranger at all since his name has already been mentioned in the F.I.statement, Ext.P1. It is also pointed out by the Public Prosecutor that in the F.I.statement, though the name of the petitioner is mistakenly noted as George Thomas, the assailant's occupation is mentioned as bank employee and thereby, the de facto complainant actually intended to implicate the petitioner 'Jose Thomas'. On the strength of the additional statement dated 29.5.1996, the Public Prosecutor submits that on the date of Ext.P1 F.I. statement itself, the correct name was mentioned explaining the mistake crept while giving the F.I.statement and mentioning the name as George Thomas instead of Jose Thomas. 7. On the strength of the Apex Court decision in **Crl.M.C.No. 2506 / 2004** **7** ## **Union of India** v. **Prafulla Kumar Samal** (AIR 1979 SC 366), the learned counsel submits that if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion, but not grave suspicion against the accused, he would be fully within his right to discharge the accused. In the very same decision, the Supreme Court had held that in exercising his jurisdiction under Section 227, the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. (emphasis supplied) According to the learned counsel, the facts occurred in the case as pointed out earlier were sufficient to hold that the petitioner is innocent and he is implicated unnecessarily, but with a view to harass him. The learned Public Prosecutor submits that the trial is **Crl.M.C.No. 2506 / 2004** **8** only in initial stage, the other witnesses are yet to be examined and the materials are also to be produced during the remaining stage of trial. Therefore, the sufficiency of evidence is to be weighed after taking the entire evidence which is yet to be adduced by the prosecution during trial and therefore, the petitioner cannot be discharged at this stage. The learned Public Prosecutor, on the strength of the decision reported in **Saraba Reddy** v. **Puthur Rami Reddy** (2007(4) KLT 362 (SC), submits that a person though initially been named in F.I.R. as an accused, but not charge sheeted can also be added to face trial. In paragraph 11 of the above decision, the Apex Court had held as follows:- “11. Power under S.319 of the Code can be exercised by the court suo motu or on an application by someone including the accused already before it. It it is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an **Crl.M.C.No. 2506 / 2004** **9** extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word 'evidence' in S.319 contemplates th evidence of witnesses given in court. Under sub-s.(4) (b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-s(4)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned.” 8. I have gone through the materials available on record and the orders passed by the court below. 9. The main attack against the impugned order is on the ground that the Police had already deleted the petitioner from the array of accused even though the de facto complainant gives an additional statement on 29.9.1995 implicating the petitioner as one of the accused and when final report was filed. Therefore, there is no justification in implicating the petitioner as **Crl.M.C.No. 2506 / 2004** **10** additional accused. So the evidence and materials as on today would show that dismissal of the petition filed by the petitioner for discharge is totally unjustified and not supported by any evidence. In this juncture, it is beneficial to go through the decision of the Supreme Court in which the Apex Court had held that under sub-s (4)(b) of Section 319 of the Cr.P.C., it was specifically made clear that it would be presumed that newly added person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of subsection (4)(b),a legal fiction was created that cognizance would be presumed to have been taken so far as newly added accused was concerned. In the present case, as pointed out earlier, the prosecution evidence has just started and examined only the de facto complainant and marked the F.I.statement as Ex.P1. The remaining charge witnesses are yet to be examined and other documentary evidences are also to be let in. Therefore, **Crl.M.C.No. 2506 / 2004** **11** it is premature to come into a conclusion that there is no evidence against the petitioner. It is also relevant to note that power under Section 319 of the Code is a discretionary power and the same has to be exercised judicially having regard to the facts and circumstances of the case. The trial court based upon the materials as on today before it by exercising its discretion came into a conclusion that the petition filed for discharge is devoid of merit and accordingly, the same was dismissed. So the outcome, in other words, would be that according to the trial court, there are materials to proceed against the petitioner. Therefore, under Section 482, this Court cannot interfere with the dismissal order by the court below for discharge of the petitioner in exercise of its discretionary power. In the result, there is no merit in the Crl.M.C. which is liable to be dismissed. Learned counsel submits that this Court may be pleased to observe that he is at liberty to move the court again with the prayer for **12** ## **Crl.M.C.No. 2506 / 2004** discharge during the appropriate stage. Even though this petition is dismissed, the petitioner's remedy available under the provisions of the Code of Criminal Procedure can be invoked at appropriate stage. Thus there is no merit in the Crl.M.C. and the same is dismissed, accordingly. **V.K.MOHANAN, JUDGE** scm/MBS ## **Crl.M.C.No. 2506 / 2004** **13**