Manaf v. Sub Inspector of Police, Kambalakkad Police Station, Wayanad District and Others; Shahul Hameed P.V. v. State of Kerala

``` “C.R.” ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ``` CRL.MC NO. 2490 OF 2014 ``` ``` CRIME NO.320/2008 OF Kambalakkad Police Station, Wayanad CC NO.256/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, ``` ## **`MANANTHAVADY`** ## **`PETITIONER:`** ``` MANAF AGED 42 YEARS, S/O.MUHAMMAD, MULLAKKANATH HOUSE, THANUR PO, MALAPPURAM DISTRICT BY ADV SRI.SUNNY MATHEW ``` ## **`RESPONDENTS:`** - **`1 THE SUB INSPECTOR OF POLICE KAMBALAKKAD POLICE STATION, WAYANAD DISTRICT 673 001.`** - **`2 THE INSPECTOR CBCID,KALPATTA 673 001.`** - **`3 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 682 031`** - **`ADDL.R4 MOIDEEN K.A, AGED 45 YEARS, S/O.IBRAHIM, KALLAKKANDI HOUSE, KOTTATHARA AMSOM, WAYANAD`** - **`ADDL.R5 ABDUL LATHEEF, AGED 55 YEARS S/O.CHERIYA MOIDEEN, KALLAKKANDI HOUSE, KOTTATHARA AMSOM, WAYANAD`** - **`ADDL.R6 P.U.SULAIMAN, AGED 46 YEARS, S/O YOOSUF, PILANCHERY HOUSE MADAKKUNNU PO, KOTTATHARA AMSOM`** - **`ADDL.R7 K.A.NAZAR, AGED 38 YEARS, S/O.ABDUL RAHIMAN, KALLAKKANDI HOUSE ARAMBATTAKUNNU PO, WAYANAD`** - **`ADDL.R8 RAMEES E.A, AGED 30 YEARS, S/O.AHAMMED, ELANGOLI HOUSE`** CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **2** ``` KOTTATHARA AMSOM, MADAKKUNN PO, WAYANAD ``` ``` ADDL.R9K.RAYINKUTTY, AGED 52 YEARS S/O.MAMIA AMMED, KALLAKKANDI HOUSE ARAMBATTAKKUNNU PO, KOTTATHARA AMSOM WAYANAD ``` ``` ARE IMPLEADED AS ADDL.R4 TO R9 AS PER ORDER DATED 28.5.14 IN CRL.M.A.4991/2014 IN CRL.M.C.2490/14 ``` ## **`BY ADV SRI.MATHEW KURIAKOSE`** ## **`OTHER PRESENT:`** ``` SRI.NOUSHAD.K.A, SR.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.07.2024, ALONG WITH Crl.MC.4291/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **3** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 CRL.MC NO. 4291 OF 2017 ``` ``` CRIME NO.320/2008 OF Kambalakkad Police Station, Wayanad AGAINST THE ORDER DATED 04.05.2017 IN CRRP NO.17 OF 2016 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS ``` ## **`TRIBUNAL ,KALPETTA`** ``` CC NO.256/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, ``` ## **`MANANTHAVADY`** ## **`PETITIONERS:`** - **`1 SHAHUL HAMEED P.V. S/O.SYED HUSSAIN THANGAL, KAVILUMMARAM, KIZHAKKOTH.`** - **`2 B.C.ABDURAHIMAN AGED 68 YEARS, S/O.AMMED, BAVATTUCHALIL HOUSE, PANNIKOTTOOR, NARIKUNI AMSOM.`** ``` 3KHALID V.K. S/O.MOOSAKUTTY, VATTAMTHODI HOUSE, KEESHISSERY POST, MALAPPURAM. BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA ``` ## **`RESPONDENT/RESPONDENT:`** ``` THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SMT.NIMA JACOB, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.07.2024, ALONG WITH Crl.MC.2490/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **4** ## **C.R.** **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. Nos.2490 of 2014 & 4291 of 2017 ---------------------------------------------Dated this the 26[th] day of July, 2024** ## **ORDER** These two criminal miscellaneous cases are connected and therefore I am disposing of these cases by a common order. 2. First, I will narrate the facts in Crl.M.C. No.4291/2017. Petitioners herein are aggrieved by the order dated 04.05.2017 in Crl.R.P. No.17/2016 whereby the Sessions Judge, Kalpetta, Wayanad confirmed the order of the Judicial First Class Magistrate Court-II, Mananthavady in Crl.M.P. No.1701/2016 in C.C. No.256/2009. It is a case charge sheeted by the Police against six persons alleging offences punishable under Sections 143, 147 and 323 read with Section 149 IPC. CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **5** Annexure-A is the FIR and Annexure-B is the FI Statement in the above case. As per the final report filed based on Annexures A and B FIR and FI Statement, K.I.Moidheen, Abdul Latheef, P.U. Sulaiman, K.A.Nazar, Rameesh E.A. and Rayinkutty were arraigned as accused. The petitioners were not accused originally. The learned Magistrate took cognizance of the offence and has taken on file the case as C.C.No.256/2009. Thereafter the trial in the case started and the defacto complainant was examined as PW1 on 20.01.2016. Annexure-C is the deposition of PW1. Pursuant to Annexure-C, the Assistant Public Prosecutor filed Annexure-D petition to add the petitioners also as accused stating that the investigating agency omitted their name. The learned Magistrate allowed that petition as per the order dated 25.10.2016 as evident by Annexure-E. Moreover, the Court dropped the proceedings against the six persons who were charged by the Police originally invoking the powers under Section 258 Cr.P.C. Annexure-F is that order. Aggrieved by the Annexure-E CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **6** order, the petitioners who were implicated as accused, filed a revision before the Session Judge, Kalpetta. The learned Sessions Judge dismissed the revision confirming the order passed by the learned Magistrate. Annexure-G is the order. Aggrieved by Annexures E and G orders, this criminal miscellaneous case is filed. 3. Crl.M.C. No.2490/2014 is filed by the defacto complainant in C.C. No.256/2009 on the file of the Judicial First Class Magistrate Court-II, Mananthavady. The above criminal miscellaneous case is filed with following prayers: 1) Pass an order entrusting the investigation into crime No. 320/2008 with the 2nd respondent and further to direct the 2nd respondent to conduct a thorough and meaningful further investigation into the said crime in a time bound manner and to submit a final report based on such investigation. 2) Any other reliefs which may be prayed for from time to time. (SIC) 4. According to the petitioner/defacto complainant CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **7** in the above case, the 1[st] respondent Police, in order to save the original accused, implicated respondents 4 to 9. According to the petitioner/defacto complainant, a further investigation is necessary in the case. Hence this criminal miscellaneous case is filed. 5. Heard the learned counsel appearing for the petitioners in these cases and also the learned Public Prosecutor. 6. Crl.M.C.No. 4291/2017 is filed against Annexures-E and G orders. It is a settled position that, the jurisdiction of this Court to invoke the powers under Section 482 Cr.P.C. against an order passed by a revisional court is very limited. Unless there is any illegality or irregularity that goes to the root of the case, this Court need not interfere with the orders passed by the revisional court invoking the powers under section 482 Cr.P.C. 7. But a legal question is raised in this case. Annexure-E is an order passed by the learned Magistrate in an application filed by the Assistant Public Prosecutor to CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **8** invoke Section 319 Cr.P.C. Annexure-D is the petition filed by the Assistant Public Prosecutor. The prayer in Annexure-D is that the respondents (the petitioners herein) mentioned in that petition are to be tried along with the existing accused in that case invoking the powers under Section 319 Cr.P.C. As mentioned earlier, the above application is allowed by the learned Magistrate as evident by Annexure-E. Annexure-E order was passed on 25.10.2016. Annexure-F is also another order passed by the learned Magistrate on the same date, i.e., on 25.10.2016, dropping the prosecution against the original accused Nos.1 to 6 invoking the powers under Section 258 Cr.P.C. The legal question raised is that, when the learned Magistrate dropped the prosecution against all the accused in a final report, the learned Magistrate is functus officio to invoke the powers under Section 319 Cr.P.C on the same day. I think there is a point to be decided in this case. 8. Section 319 Cr.P.C. reads like this: CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **9** ## “ **Section 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 the 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.” (underline supplied) CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **10** 9. From Section 319 Cr.P.C, it is clear that, 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. Therefore, only when some accused are already there in a case, Section 319 Cr.P.C. can be invoked for trying some others also along with the existing accused. In other words, at the time when the powers under Section 319 Cr.P.C are invoked, some person in the array of accused is necessary. There may not be any problem, if the existing accused are discharged or proceedings against them are dropped on subsequent dates, retaining the newly impleaded accused. That is the simple interpretation possible as per Section 319 Cr.P.C. 10. In this case, on 25.10.2016, the learned Magistrate dropped the case against all the accused who were arrayed by the prosecution, exercising the powers CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **11** under Section 258 Cr.P.C and on the same day, added the petitioners as accused invoking the powers under Section 319 Cr.P.C. Section 258 Cr.P.C. says about the power to stop proceedings in certain cases. In any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge. Therefore, once the learned Magistrate invokes the powers under Section 258 Cr.P.C. and passes an order, it will be either an order of acquittal or an order of discharge. After passing such an order, the learned Magistrate is functus officio to invoke Section 319 Cr.P.C. because the same would amount to a review of the order CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **12** passed under Section 258 Cr.P.C. Instead of dropping the case against all the accused, if the prosecution against some of the accused were dropped under Section 258 Cr.P.C or discharged, then there is a case pending and in such situation, an order under Section 319 Cr.P.C. can be invoked on that day itself. But, here is a case where the prosecution against all the accused arraigned in the final report are dropped as per Annexure-F order. In such circumstances, on the same day, the learned Magistrate has no power to invoke Section 319 of Cr.P.C. If Section 319 Cr.P.C. is invoked on a particular day and thereafter on the next day all the accused arrayed in the final report earlier are dropped, there may not be any illegality. But, if the orders under Sections 319 and 258 Cr.P.C are passed on the same day, there is legal infirmity in the orders passed by the learned Magistrate. Once an order to stop the proceedings invoking Section 258 Cr.P.C. is passed, the learned Magistrate is functus officio to invoke the powers under Section 319 Cr.P.C. CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **13** 11. A constitutional bench of the Apex Court in **Sukhpal Singh Khaira v. State of Punjab** [2022 (7) KHC 593] considered a similar point. It will be better to extract the first substantial question of law framed by the ## constitutional bench: “Whether the Trial Court has the power under Section 319 of Cr.P.C. for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order.” 12. The answer to the above substantial question is in paragraph No.33 of the judgment. The same is extracted hereunder: “33. For all the reasons stated above, we answer the questions referred as hereunder: “I. Whether the Trial Court has the power under S.319 of CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order? The power under S.319 of CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **14** exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.” 13. In the light of the above dictum, I have no doubt that the learned Magistrate erred in passing an order under Section 258 Cr.P.C. and an order under Section 319 Cr.P.C. on the same day. 14. Advocate Sri. Sunny Mathew, who appeared for the defacto complainant, takes me through the AnnexureF order passed by the learned Magistrate invoking the powers under Section 258 Cr.P.C. The learned counsel specifically takes me through paragraph No.3 of Annexure-F and submitted that, a reading of the above paragraph would show that, Annexure-F order was passed after allowing Annexure-E order. In other words, the contention is that, the first order passed was Annexure-E CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **15** order and thereafter the second order Annexure-F was passed and the same is clear from paragraph No.3 of Annexure-F order. I cannot agree with the learned counsel. While passing judicial orders/judgments, the time of passing the same is not relevant and the date of the order is important. If orders are passed on the same day, it will be treated as an order passed simultaneously. This Court cannot presume based on paragraph No.3 in Annexure-F that, Annexure-E and F orders are passed consecutively and not simultaneously. In that case, this court has to imagine, for example Annexure E order was passed at 11.00 AM on 25.10.2016 and Annexure-F order was passed at 11.05 AM. Such an interpretation is not possible while considering the judicial orders/judgments. Only the date of the order is important. Admittedly, Annexures E and F orders are passed on 25.10.2016. Therefore, I am of the considered opinion that, in the light of dropping the prosecution against all the existing accused as per Annexure-F order, the learned Magistrate has no power to CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **16** pass an order under Section 319 Cr.P.C to implead a fresh set of accused on the same date. Moreover, a perusal of Annexure-D application under Section 319 Cr.P.C. also would show that the prayer of the Assistant Public Prosecutor is to implicate the respondents in Annexure-D application as additional accused for trying along with the present accused who faced the trial as per the final report. In such circumstances, the learned Magistrate had gone beyond the prayers in Annexure-D and dropped the prosecution against all the accused in the final report on 25.10.2016 itself and allowed the petition under Section 319 Cr.P.C as per Annexure-E order on the same day. Hence, Annexure-E order is unsustainable for that simple reason. But, I make it clear that the defacto complainant has every right to challenge Annexure-F order pointing out the illegality. I am also of the considered opinion that Annexures E and G orders are to be set aside. 15. The prayer in Crl.M.C.No.2490/2014 is for a further investigation in C.C.No.256/2009. When the case CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **17** itself is dropped by the learned Magistrate under Section 258 Cr.P.C and also in the light of the finding by me in this order, I am of the considered opinion that the prayers in this Criminal Miscellaneous Case are infructuous. Therefore, these Criminal Miscellaneous Cases are disposed of with the following directions: - (i) Crl.M.C.No.4291/2017 is disposed of setting aside Annexures E and G orders. - (ii) Crl.M.C.No.2490/2014 is disposed of stating that no further order is necessary in the light of the order in Crl.M.C.No.4291/2017. JV/DM/NVJ/sbna Sd/- **P.V.KUNHIKRISHNAN JUDGE** CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **18** ## **`APPENDIX OF CRL.MC 4291/2017`** |**`PETITIONER ANNEXURES`**|**`PETITIONER ANNEXURES`**| |---|---| |**`ANNEXURE A-`**|**`TRUE COPY OF F.I.R.NO.320 DATED`**| ||**`28/12/2008 OF THE KABALAKKAD POLICE`**| ||**`STATION.`**| |**`ANNEXURE B-`**|**`TRUE COPY OF FIRST INFORMATION`**| ||**`STATEMENT IN FIR NO.320.`**| |**`ANNEXURE C-`**|**`TRUE COPY OF DEPOSITION OF PW1 DATED`**| ||**`20/01/2016 IN C.C.NO.256 OF 2009.`**| |**`ANNEXURE D-`**|**`TRUE COPY OF C.M.P.NO.1701 OF 2016`**| ||**`FILED BY THE ASSISTANT PUBLIC`**| ||**`PROSECUTOR IN C.C.256/2009 BEFORE THE`**| ||**`HON'BLE`**<br>**`JUDICIAL`**<br>**`FIRST`**<br>**`CLASS`**| ||**`MAGISTRATE COURT-II, MANANTHAVADY.`**| |**`ANNEXURE E-`**|**`TRUE COPY OF ORDER DATED 25/10/2016 IN`**| ||**`CRL.M.P.NO.1701 OF 2016 OF JUDICIAL`**| ||**`FIRST CLASS MAGISTRATE-II COURT,`**| ||**`MANANTHAVADY.`**| |**`ANNEXURE F-`**|**`CERTIFIED COPY OF THE ORDER DATED`**| ||**`25/10/2016 IN C.C.NO.256 OF 2009 OF`**| ||**`THE JUDICIAL FIRST CLASS MAGISTRATE-II`**| ||**`COURT, MANANTHAVADY.`**| |**`ANNEXURE G-`**|**`TRUE COPY OF ORDER DATED 04/05/2017 IN`**| ||**`CRL.R.P.NO.17 OF 2016 OF SESSIONS`**| ||**`JUDGE, KALPETTA.`**| CrlM.C..Nos. 2490 of 2014 & 4291 of 2017 **19** ## **`APPENDIX OF CRL.MC 2490/2014`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE A1 COPOY OF THE SUMMONS ISSUED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS-11,MANANTHAVADYTO SRI.MAJEED.K.P,S/O.BAPUTTY ``` ``` ANNEXURE A2 COPY OF THE REPORT OF THE IST RESPONDENT TO THE LEARNED MAGISTRATE INTIMATING THE SERVICE OF SUMMONS ``` ``` ANNEXURE A3 COPY OF THE SUMMONS ISSUED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS-11,MANNANTHAVADY TO SRI HARIS C.P, S/O.SAIDALI ``` ``` ANNEXURE A4 COPY OF THE REPORT OF THE IST RESPONDDENT TO THE LEARNED MAGISTRATE INTIMATING THE SERVICE OF SUMMONS ``` ``` ANNEXURE A5 COPY OF THE REPORT SUBMITTED BY THE IST RESPONDENT BEFORE THE JUDICIAL MATGISTRATE OF FIRST CLASS-11, MANANTHAVADY ``` ``` ANNEXURE A6 COPY OF THE REPORT DATED 31/12/2012 SUBMITTED BY THE IST RESPONDENTBEFORETHEJUDICIAL MAGISTRATEOFFIRSTCLASS-11, MANANTHAVADY ANNEXURE A7 COPY OF THE REPORT DATED NIL SUBMITTED BY THE IST RESPONDENT BEFORE THE JUDICIAL MAGISTRATE OF FIRST CLASS-11 ,MANANTHAVADY ```