Rajendra Prasad v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 25[TH] DAY OF AUGUST 2023 / 3RD BHADRA, 1945** **OP(CRL.) NO. 421 OF 2023** **AGAINST CMP NO.4674/2022 IN CC 810/2019 OF JUDICIAL** **MAGISTRATE OF FIRST CLASS-I, HARIPAD** ## **PETITIONER/ADDITIONAL ACCUSED ADDED U/S.319 OF Cr.P.C:** **RAJENDRA PRASAD AGED 57 YEARS, S/O. MADHAVAN, MADHAVA KRIPA MUTHUKULAM VADAKKUMURI MUTHUKULAM VILLAGE, ALAPPUZHA, PIN - 690506** **BY ADVS. SRI.B.RENJITHKUMAR SRI.K.RAMAKUMAR (SR.)** ## **RESPONDENTS/STATE/PETITIONERS 1 & 2 AND RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **2 K.B.JAYAPRAKASH AGED 54 YEARS, S/O. BALAKRISHNAN VAIDYAN KANALIL VEEDU, MUTHUKULAM NORTH MURI, MUTHUKULAM VILLAGE ALAPPUZHA, PIN - 690506** **3 SURESH AGED 59 YEARS, S/O. VASU MARAKKASSERRIL CHIRAYIL VEEDU MUTHUKULAM NORTH, MUTHUKULAM VILLAGE ALAPPUZHA, PIN - 690506** **4 REMANAN AGED 65 YEARS, S/O. RAGHAVAN, MULLASSERRIL VEEDU, MUTHUKULAM NORTH MUTHUKULAM VILLAGE,** O.P.(Crl.) No.421/23 **-:2:-** **ALAPPUZHA, PIN - 690506** **5 RAVI KRISHNAN AGED 65 YEARS, S/O.KRISHNAN KRISHNA BHAVANAM, MUTHUKULAM NORTH MUTHUKULAM VILLAGE, ALAPPUZHA, PIN - 690506** **BY ADV R.RAJASEKHARAN PILLAI SRI.NOUSHAD K.A., PUBLIC PROSECUTOR** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 03.08.2023, THE COURT ON 25.08.2023 DELIVERED THE FOLLOWING:** **-:3:-** O.P.(Crl.) No.421/23 ## **BECHU KURIAN THOMAS, J. -------------------------------O.P.(Crl.) No.421 of 2023** ## **---------------------------------** Dated this the 25[th] day of August, 2023 ## **JUDGMENT** Petitioner challenges an order dated 15.03.2022 in C.M.P. No.4674 of 2022 in C.C. No.810 of 2019 on the files of the Judicial First Class Magistrate's Court-I, Haripad. By virtue of the impugned order, petitioner was added as an additional accused in the aforesaid case for the offences under sections 153 and 188 r/w section 34 of the Indian Penal Code, 1860 (for short 'IPC'), and issued process to him under section 204 of Cr.P.C. 2. Prosecution alleged that on 07.06.2018, the accused had flouted an order of the court prohibiting placing and hoisting of official flags of political organisations near the premises of Kurumbukkara Temple at Alappuzha. The prosecution further alleges that while there was tension prevailing between members of different political organizations, the accused who were active members of the RSS, violated the order and hoisted a saffron flag near the temple premises and committed the offences O.P.(Crl.) No.421/23 **-:4:-** punishable under sections 153 and 188 r/w section 34 of IPC. 3. On 25.01.2019, the final report was filed arraying two persons as accused, and the charge was framed by the court on 27.09.2022. After trial commenced, two witnesses were examined on behalf of the prosecution. On the basis of an application preferred by the prosecution under section 319 Cr.P.C and on the basis of the depositions of PW1 and PW2, both of whom had specifically stated that Sri.Rajendra Prasad-the petitioner who hoisted the flag on 07.06.2018 near the temple premises, found sufficient materials to proceed against the said person also, as he appears to have, from the evidence on record, committed the offences alleged. 4. Sri.K.Ramkumar, the learned Senior Counsel duly instructed by Adv. B.Renjithkumar submitted that the learned Magistrate committed an error in not issuing notice to the petitioner prior to including him as an accused in the party array. In support of the said contention, he relied upon the decision in ## **Jogendra Yadav and Others v. State of Bihar and Another** [(2015) 9 SCC 244]. It was further contended that the order under section 188 Cr.P.C, which is alleged to be flouted, has not even been produced before the court and therefore the petitioner O.P.(Crl.) No.421/23 **-:5:-** cannot be added as an additional accused. 5. Sri.R.Rajasekharan Pillai, learned counsel for respondents 2 and 3 on the other hand contended that the learned Magistrate, after the evidence of PW1 and PW2, found that the involvement of the petitioner has come out in evidence and therefore thought it fit to implead him as an additional accused. He relied upon a recent judgment in **Yashodhan Singh and Others v. State of Uttar Pradesh and Another** (2023 SCC OnLine SC 890), where the Supreme Court observed that when a person is to be summoned as an additional accused, notice or an opportunity of hearing is not required to be granted to him under section 319 Cr.P.C. 6. The Learned Public Prosecutor also supported the impugned order and stated that once the court exercises its power under section 319 Cr.P.C in the absence of any perversity, the court ought not to interfere. 7. The two contentions advanced by the learned Senior Counsel relates to (i) lack of prior notice before adding the additional accused and (ii) order which is the basis for the offence under section 188 IPC has not been produced in evidence. O.P.(Crl.) No.421/23 ## **-:6:-** 8. PW1 and PW2 had specifically stated that the petitioner had hoisted the flag next to the temple premises. The learned Magistrate has, in the impugned order, referred to the said evidence and observed that the petitioner appears to have also committed an offence which could be tried together with the existing accused. This finding is not conclusive but only for the purpose of section 319 Cr.P.C. On a perusal of the provisions of section 319 Cr.P.C, it is evident that the learned Magistrate has considered the evidence sufficient enough to warrant adding the petitioner as an accused. It was also considered by the learned Magistrate and found that strong and cogent evidence appears against the petitioner warranting the exercise of the power under section 319 Cr.P.C. A perusal of the order reveals that the power has not been exercised in a casual or cavalier manner, and on the other hand, the learned Magistrate has considered and given reasons for including the petitioner as an accused. 9. In **Jogendra Yadav's case** (supra), the Supreme Court made a passing observation that when a person is added as an accused under section 319 Cr.P.C, he is to be heard before being so added. However, in a recent decision in **Yashodhan Singh's case** (supra), Supreme Court observed that the principle of O.P.(Crl.) No.421/23 **-:7:-** hearing a person before he is summoned cannot be read into section 319 Cr.P.C, and such a procedure is not at all contemplated therein. It was further observed that the decision in **Jogendra Yadav's case** (supra) was relatable only to the facts of the said case, and it cannot be applied as the law of the land. In view of the aforesaid binding decision of the Supreme Court, the proposition that the petitioner was not issued with a notice prior to including him as an accused, is not tenable and the same is rejected. 10. The contention that the order which is the basis for the offence under section 188 IPC has not been produced, is a matter which has to be looked into after the evidence is adduced. The order can be marked in evidence through any of the witnesses or through the person who had issued the said order. Therefore, it is too premature a point in time to consider the said contention. Even otherwise, the offence under section 153 IPC has also been included. Therefore, even if the prosecution fails to prove the offence alleged under section 188 IPC, still the offence under section 153 IPC remains. These are all matters that can be considered during trial and petitioner has the liberty to canvass the contentions at that stage. O.P.(Crl.) No.421/23 **-:8:-** 11. In view of the above circumstances, I find no perversity in the impugned order, and the learned Magistrate was justified, from the evidence adduced so far, to include the petitioner also as an accused. Therefore, there is no merit in this original petition, and it is dismissed. **Sd/-** **BECHU KURIAN THOMAS** **JUDGE** vps ## O.P.(Crl.) No.421/23 ## **-:9:-** ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS** **EXHIBIT-P1 TRUE COPY OF THE FIR IN CRIME NO.851/2018 OF KANAKAKKUNNU POLICE STATION DATED 7.6.2018 EXHIBIT-P2 TRUE COPY OF THE FINAL REPORT DATED 27.9.2019 FILED BEFORE THE TRIAL COURT. EXHIBIT-P3 TRUE COPY OF THE PETITION IN CMP NO. 4674/2022 IN CC NO. 810/2019 ON THE FILE OF TRIAL COURT FILED ON 11.11.2022** **EXHIBIT-P4 TRUE COPY OF THE ORDER DATED 15.3.2023 IN CMP NO. 4674/2022 IN CC NO. 810/2019 IN THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, HARIPPAD EXHIBIT-P5 TRUE COPY OF THE ORDER NO. 32/3237/DCRB/2018 A DATED 28.11.2018 OF DISTRICT POLICE CHIEF, ALAPPUZHA** ## **RESPONDENT'S/S' EXHIBITS** **EXHIBIT-R2A TRUE COPY OF THE PETITION SUBMITTED BY ONE BHASKARAN ON 28.4.2018 BEFORE THE RDO CHENGANNUR** **EXHIBIT-R2B TRUE COPY OF THE ORDER DATED 10.4.2018 OF THE SUB DIVISIONAL MAGISTRATE COURT CHENGANNUR** **EXHIBIT-R2C TRUE COPY OF THE NOTICE DATED 22.11.2018 RECEIVED BY THE CONCERNED WITNESSES IN CONNECTION WITH THE DISCIPLINARY PROCEEDINGS OF THE DIRECTOR GENERAL EDUCATION** |O.P.(Crl.) No.421/23|**-:10:-**| |---|---| |**EXHIBIT-R2D**|**TRUE COPY OF THE ORDER DATED 13.4.2023**| ||**IN IA NO.1/2023 IN OS NO.139/2023 OF THE**| ||**MUNSIFFS COURT HARIPAD**| |**EXHIBIT-R2E**|**TRUE COPY OF THE QUESTIONNAIRE TO THE**| ||**INVESTIGATION OFFICER SUBMITTED BY**| ||**P.BHASKARAN**| |**EXHIBIT-R2F**|**TRUE COPY OF THE REPLY DATED 29.8.2018**| ||**TO EXT.R2E**|