Prakashan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938** **Crl.MC.No. 6497 of 2016 -------------------------** **ORDER DTD.18.11.2015 IN SC 273/2014 OF SUB COURT, CHAVAKKAD CP 81/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM CR. NO. 297/2013 OF VADAKKEKAD POLICE STATION, TRISSUR** **....** **PETITIONER(S)/ACCUSED NO.5:** **--------------------------** **PRAKASHAN, S/O VELAYI, ARAKKKAL HOUSE, PUNNAYOORKULAM, PERIYAMBALAM DESOM** **BY ADVS.SRI.B.PREMOD SRI.R.PREM SANKAR SRI.SUDHEER GANESH KUMAR.R.** **RESPONDENT(S):** **--------------** **STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KUNNAMKULAM, (CR.NO.297/2013 OF VADAKKEKKAD POLICE STATION)** **BY PUBLIC PROSECUTOR SRI.AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** ## **Crl.MC.No. 6497 of 2016 ------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES: ------------------------** - **A1 THE TRUE COPY OF THE ORDER OF THE LEARNED ASSISTANT SESSIONS JUDGE, CHAVAKKAD DATED 18/11/2015** - **A2 THE TRUE COPY OF THE DEPOSITION OF PWI BINEESH RECORDED BY THE LEARNED JUDGE ON 17/1/2015** - **A3 THE TRUE COPY OF THE FIR REGISTERED BY THE SUB INSPECTOR OF POLICE, VADAKKEKKAD POLICE STATION ON 31/3/2013** - **A4 THE TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE INVESTIGATING OFFICER AFTER CONDUCTING FURTHER INVESTIGATION** - **A5 THE TRUE COPY OF THE ORDER PASSED BY THE ASSISTANT SESSIONS JUDGE, CHAVAKKAD DATED 31/3/2015** ## **RESPONDENT(S)' ANNEXURE** **-----------------------** ## **NIL** ## **//TRUE COPY//** ## **P.S.TO JUDGE** **Msv/** **“C.R.”** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.6497 of 2016** ## **----------------------------------------Dated this the 17[th] day of October, 2016** ## **O R D E R** - 1.The challenge in this petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) is directed against the order dated 18.11.2015 in S.C.No. 273/2014 of the learned Assistant Sessions Judge, Chavakkad. By the said order, the petitioner was ordered to be proceeded against under section 319 of the Code. - 2.The aforesaid case originated from Crime No.297 of 2013 of Vadakkekkad Police Station. In the said crime, five persons were arrayed as accused for having committed offences punishable under Sections 143, 147, 148, 341, 323, 324, 308 read with 149 of the IPC. After investigation, final report was laid before the jurisdictional Crl.M.C.6497/2016 2 court. The case was thereafter committed to the court of Sessions. While the case was pending before the learned Sessions Judge, an application was filed by the learned Public Prosecutor seeking formal permission from the court below for conducting further investigation. The said petition was allowed and further investigation was conducted. On its conclusion, a report was submitted concluding that the petitioner had no involvement in the commission of offence. The petitioner was thus omitted from the array of the accused. - 3.In the course of the trial which followed, PW1 was examined. Immediately thereafter Annexure-1 order was passed by the learned Sessions Judge, which reads as follows: _“In the light of the evidence tendered by PW1, Section 319 is invoked and Mr.Prakasan who was removed from the array of accused at the time of further investigation is impleaded as A5. Issue summons to Prakasan, S/o.Velayi. Further witness stopped. Call on 2.12.2015”_ Crl.M.C.6497/2016 3 4.The learned counsel appearing for the petitioner attacked the impugned order on various grounds. It is submitted that the power exercisable under Section 319 of the Code is an extraordinary power conferred on the Court to do real justice and it should be exercised with caution, and only if compelling reasons exist for proceeding against a person, against whom, the police had decided not to file the final report after conducting further investigation. It is further submitted that the Court below has failed to objectively satisfy itself before deciding to invoke powers under Section 319 of the Code. It is further urged that the Court below have ignored the binding precedents and have passed a non-speaking order and relying on the cases of **Varghese V Augusty [** 1988(1) KLT 80] and also a Division Bench of the Delhi High Court in **Kishori V State** [1998 CrlLJ 1363 ] it is urged that the order cannot be sustained. 5.The learned Public Prosecutor on the other hand ably Crl.M.C.6497/2016 4 countered the submissions and contended that the learned Assistant Sessions Judge had invoked his powers based on the evidence tendered before the court below and there was no reason for interference. It is argued that there is no requirement that the order should be supported by reasons. The absence of reasons will not vitiate the proceedings is in essence, the submission. Reference is also made to a decision of this Court in **Murali V State of Kerala [** 1999 Crl.L.J. 1670] to contend that section 319 of the Code does not require the learned Assistant Sessions Judge to pass a speaking order. - 6.I have considered the rival submissions and have gone through the records. - 7.It is by now settled that the power under section 319 is really extraordinary and it has to be used sparingly and with caution only if compelling reasons exist for proceeding against a person against whom action has not been taken. Before a Trial Court seeks to take recourse to Crl.M.C.6497/2016 5 the said provision, the requisite ingredients must be fulfilled. Commission of an offence by a person not facing trial, must, therefore, appear to the Court concerned. It cannot be _ipse dixit_ on the part of the Court. Discretion in this behalf must be judicially exercised. It is incumbent that the Court must arrive at its satisfaction in this behalf and as the power is discretionary, it should only be exercised with the paramount interest of justice in mind. The Court cannot just turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping in conspectus the facts of the case, its stage and the quantum of evidence collected till then. 8.In **Kailash V State of Rajastan and Anothe** r [2009 (14 ) SCC 51 ], the Apex Court had occasion to elucidate on the ambit and meaning of the keyword _"it appears from the evidence "_ .... _äny person"_ ......" _has committed any offence_ " that appear in Section 319 and it was held Crl.M.C.6497/2016 6 ## as follows :- _“A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are 'it appears from the evidence' ... 'any person' ....'has committed any offence'. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under S.319 CrPC would be used by the Court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under S.319 CrPC has to be exercised very sparingly and with caution and only when the concerned Court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words 'it appears' are not to be read lightly. In that the Court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands.”_ Crl.M.C.6497/2016 7 9.In **Krishnappa V State of Karnataka** [AIR 2004 SC 4298] **,** it was held by the Apex Court that an order under Section 319 of the Code would not be made mechanically merely on the ground that some evidence has come on record implicating the person sought to be summoned. 10.In **Sarabjit Singh and Another v. State of Punjab and Another (** 2009 (16) SCC 46) the Hon'ble Supreme Court had occasion to observe as follows: _“17. The provision of S.319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this Court in Municipal Corporation of Delhi (supra) been satisfied is the question? Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly._ _We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Another, JT 2007 (6) SC 460, this Court opined:_ _"...Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling_ Crl.M.C.6497/2016 8 _reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in S.319 contemplates that evidence of witnesses given in Court..."_ _An order under S.319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction._ _For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned_ .” ## 11.In **Hardeep Singh v. State of Punjab** (2014 (1) KLT 336) a Constitution Bench of the Apex Court had occasion to consider the scope and extent of the powers of the Courts under the criminal justice system to arraign any person as an accused during the course of enquiry or trial as contemplated under section 319 of the Code and it was concluded thus in paragraph 99 of the Judgment:-. _“Thus, we hold that though only a prima facie case is to be established from the evidence led before the - court not necessarily tested on the anvil of Cross_ Crl.M.C.6497/2016 9 _Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under S.319 Cr.P.C. In S.319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words “for which such person could be tried together with the accused.” The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under S.319 Cr.P.C. to form any opinion as to the guilt of the accused.”_ _( emphasis supplied )_ 12.Though the question of exercising the power under Section 319 of the Code is purely on the Court, while exercising the powers, the Court will have to objectively satisfy itself that the evidence warrant that a person not brought up for trial should be detained and required to face the trial. Though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. As held in **Hardeep Singh** ( supra ) the Crl.M.C.6497/2016 10 test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. 13.As held by the Apex Court in a slew of decisions , while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only Crl.M.C.6497/2016 11 indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons render an order indefensible particularly when the order is subject to further challenge before a higher forum. Recording of reasons forms an integral part of the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why the proceedings have gone against him. ( See **State of Rajastan V Sohan Lal and Others** 2004 (5) SCC 573 ) 14.After having gone through the impugned order, it does not appear to me that the Court below has considered the Crl.M.C.6497/2016 12 relevant aspects and had occasion to arrive at the required satisfaction while passing the impugned order. The order is non speaking and cryptic. I am therefore unable to sustain the impugned order and the same is set aside. However this order shall not stand in the way the learned Assistant Sessions Judge, invoking the powers under section 319 of the Code in the course of proceedings and in accordance with law. The petition is disposed of as above. **JUDGE** vps