Ouseph v. State of Kerala and Jojo

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 Crl.Rev.Pet.No. 759 of 2011() ----------------------------AGAINST THE ORDER DATED 27/10 /2011 IN CRMP 8512/2010 IN CC.404/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S): --------------------- OUSEPH,AGED 56 YEARS,S/O.THOMAS, PARAIKKAD VILLAGE,THRISSUR. BY ADV. SMT.V.SHYLAJA SRI.A.T.ANILKUMAR RESPONDENT(S): RESPONDENT ------------------------- 1. STATE OF KERALA,REP.BY ADDITIONAL SUB INSPECTOR OF POLICE, ANTHIKKAD POLICE STATION, REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. 2. JOJO,S/O.DEVASSY, KANNAMPULLY VEEDU, S.N.NAGAR,VADUTHALA. PUBLIC PROSECUTOR SRI. V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## V.K.MOHANAN, J ------------------------------Crl.R.P.NO.759 OF 2011 ---------------------------------------------Dated this the 29[th] day of March, 2011. ORDER The defacto complainant in C.C.No.404/2009 is the revision petitioner. His grievance is that though he had preferred a petition, i.e, C.M.P.No.8511/2010 under Section 314 of Cr.P.C in the above Calendar Case, to implicate one Louise as an additional accused in the above calendar case, the learned Magistrate dismissed the same. 2. I have heard Smt.Shailaja, the learned counsel appearing for the revision petitioner and the learned Public Prosecutor. 3. The learned counsel vehemently submitted that the impugned order is unsustainable either on law or on facts, C.C.No.404/2009 was instituted in the court of Judicial Magistrate of First Class-II Thrissur based upon the report filed by the police after investigation in Crime No.662/2008 of Anthikkad Police Station for the offences punishable under Section 452, 323,506(1) IPC. Annexure A is the FI Statement. According to the learned counsel, the revision petitioner who is the defacto complainant, was not aware of the details of the Police report including the persons those who are arrayed as Crl.R.P.NO.759 OF 2011 2 accused in the above report till he is examined as PW1 in the court below. When PW1 was examined, he had categorically stated before the court that even at the time of lodging the FI Statement, he had disclosed to the Police that the accused, who trespassed into his house, asked him whether any money is due to one Louis and whether he got acquaintance with the said Louis. As the learned Magistrate failed to implicate Louis as additional accused in the above calendar case, according to the learned counsel the petitioner herein preferred Crl.M.P.No.8512 of 2010 under Section 319 of Cr.P.C to implicate said Louis as additional accused. Learned counsel submitted that the learned Magistrate inspite of the above evidence of PW1 simply stating that the petition is belated,dismissed the same, which, according to the learned counsel, is liable to be interfered with and the said Louis is to be added as an additional accused. 4. The learned Public Prosecutor on the other hand, submitted that in the light of the decision of this Court in **A.P.Aboobacker Musaliar v. Inspector of Police and Others reported in 2005 (4) ILR Kerala 200** and decision of the Apex Court in **Michal Machadou v. Central Bureau of Investigation reported in 2000 (3) SCC 262** that the order Crl.R.P.NO.759 OF 2011 3 impugned is perfectly legal and correct and no interference is called for, since the criteria fixed by the Apex Court in the above decision are not attracted in the present case. 5. I have carefully considered the arguments advanced by the counsel for the petitioner as well as the learned Public Prosecutor. I have also gone through the order of the learned Magistrate and decisions cited by the learned counsel for the petitioner as well as the Public Prosecutor also. 6. The Apex court in Michal Machadou's case has held: “It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already ” arraigned accused . (Emphasis supplied) In the very same decision the Apex Court has further held that: “But even then, what is conferred, on the court is only a discretion as could be discerned from the words 'the court may proceed against such person'. The Crl.R.P.NO.759 OF 2011 4 discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spend for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons”. In the present case, though the report was filed by the Police on 31.12.2008 and though the petitioner as well as PW2 were examined on 4.8.2010, the petition under Section 319 of Cr.P.C was filed only after examination of four witnesses including PW6 that on 21.10.2010. 7. The petitioner has produced the depositions of PWs. 1 and 2 along with this revision petition and the learned counsel for the petitioner submitted that in Annexure-C, revision petitioner, who was examined as PW1, has categorically stated Crl.R.P.NO.759 OF 2011 5 that when he had given Annexure-A complaint, he had deposed before the Police that the accused persons, those who are already arrayed, told him that they came as directed by Louis the person who sought to be implicated as additional accused. Whether the said statement is an improvement or made by PW1, when compared with Annexure-A statement is a matter for the learned Magistrate to appreciate at relevant time. Therefore, I am not expressing any opinion on merit. But according to me, the learned Magistrate is fully justified in rejecting the prayer to implead the new person since in the decision referred to above, it is made clear that a doubt is not sufficient to implicate a new person as an accused in a pending criminal case. From the extracted portion of the judgment of the Apex Court it is clear that in order to attract Section 319 of Cr.P.C mere involvement of a person or a doubt against him is not sufficient. There must be every possibility for convicting him in the case. Here the learned Magistrate after having considered the facts and circumstances delivered to invoke Section 319 of Cr.P.C. 8. It is also relevant to note that in view of the facts and circumstances involved in this case, the petition filed by the revision petitioner before the court below under Section 319 of Crl.R.P.NO.759 OF 2011 6 Cr.P.C is highly belated one. Naturally, if the revision petitioner is very much interested in the logical conclusion of the trial in a case which is instituted on the basis of the FI Statement given by him, he is expected to follow the procedure adopted by the Police and investigation and to find out whether the Police is going in the correct direction with the investigation. In this case it is relevant to note that though the FI Statement was launched immediately after the incident that taken place on 28.12.2008, the report was filed on 31.12.2008. PW1 was examined on 4.8.2010 till that time no enquiry or steps was taken to see that the investigation was in the correct direction. It is also relevant to note that he had appeared before the trial court for giving evidence as PW1 in pursuance to summons received by him from the court. Normally, when a summons received, the name of the accused and the Section of offences on the basis of which the case was instituted can be understood from the summons. In the present case even though summons was received, no steps was taken at that time. Even after examining himself and PW2 on 4.8.2010, the present petition was filed after examination of four more witnesses, including PW6 who was examined on 21.10.2010. In Machadou's case the Honourable Apex court has Crl.R.P.NO.759 OF 2011 7 laid down the criteria to be followed in case of impleading a new person as an additional accused, by resorting Section 319 of Cr.P.C. Probably, on the basis of the above guideline, the learned Magistrate is of the opinion that the petition is filed belatedly. In view of the facts and circumstances involved in this case and especially, in the light of the guideline issued by the Apex Court in Machadou's case, I am of the view that the Magistrate is perfectly correct in rejecting the petition as the same is a belated one. In the result, I find no merit in the revision petition and accordingly, the same is dismissed. ## V.K.MOHANAN, JUDGE pm