High Court of KeralaSingle Judge2024-01-30Petition dismissed; no interference with the im...

Satheesh and Jayakumar P.K. v. State of Kerala and Krishna Menon

Case / Petition Number:CRL.MC 6797/23

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Bechu Kuri an Thomas
Judgment Date: 2024-01-30
Court Decision / Holding: The Criminal Misc. Case is dismissed. The impugned order under Section 319 Cr.P.C. to add four additional accused does not warrant interference under Section 482 Cr.P.C. and stands. Therefore, the petition is dismissed and the 319 order remains in effect.
Final Disposition: Petition dismissed; no interference with the impugned Section 319 order; the four additional accused can be proceeded against in trial.

Parties to the Case

Appellants / Petitioners

Satheesh
Jayakumar P.K

Respondents

State of Kerala represented by Public Prosecutor
Krishna Menon
(Defacto Complainant)

Legal Representation & Advocates

Counsels for Petitioners

• Adv V.A. Johnson (Varikkappallil)

Counsels for Respondents

• Nosuhad K.A., Public Prosecutor
• P. Vijayakumar Puthiyakovilakom

Case Synopsis & Summary

This is a criminal miscellaneous petition challenging an order under section 319 Cr.P.C. by the Chief Judicial Magistrate, Palakkad, adding four persons as accused in C.C. No.128/2019. The prosecution alleges that on 25 August 2010, shortly after midnight, the defacto complainant’s relative was assaulted on account of prior enmity, sustaining a fracture and other injuries, and a gold necklace and Rs. 23,000 were allegedly stolen. Although petitioners were not named in the final investigation report, the Deputy Director of Prosecution moved under section 319 Cr.P.C. to include four additional accused based on PW2’s deposition. The CJM, after hearing objections, issued summons to them. The petitioners contend that there was no material linking them to the offense and that the 319 power is extraordinary and should be exercised only in exceptional circumstances; they point out that PW2 did not implicate them during investigation and that the initial complaint did not mention them. They argued there is no material evidence to justify their inclusion and accused the process as malafide. The State and Krishna Menon argued that PW2 identified the four persons as assailants; Ext.P2 states that the first accused arranged for others to assault, and relied upon decisions of the Supreme Court and Kerala High Courts. The High Court held that section 319 Cr.P.C. confers an extraordinary power to ensure a fair trial but should be exercised only with compelling reasons; it concluded no interference under section 482 was warranted and dismissed the petition, thereby upholding the impugned order.

Provisions of Law Cited

Section 319 Cr.P.C. (Cr.P.C., 1973)Section 482 Cr.P.C. (Cr.P.C., 1973)

Legal Doctrines & Maxims

Power under Section 319 Cr.P.C. is extraordinary and must be exercised sparingly; compelling reasons are required to add accused who were not named initially.
Fair trial and justice to society demand that all guilty be brought to trial, while ensuring no innocent is punished.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that the 3rd and 5th petitioners were not named in the final charge sheet or investigation report and there was no material linking them to the alleged crime. They argue that Section 319 Cr.P.C. grants an extraordinary power that must be exercised sparingly and only in exceptional circumstances, especially since PW2’s testimony did not implicate them during investigation and there is an absence of material for inclusion after a ten-year gap. They contend the complaint itself did not reference them and that the deposition appears to be an afterthought, possibly malafide. They rely on Pammi Kumari and Ors. v State of Bihar to emphasize caution against abuse of power and request interference with the order under 482 Cr.P.C. to prevent injustice.

Contentions of Respondents

The respondents contend that PW2 identified four assailants and Ext.P2 notes that the first accused organized the assault and that the accused’s involvement is supported by evidence. They rely on decisions of the Supreme Court and Kerala High Court recognizing that Section 319 Cr.P.C. is meant to ensure a fair trial by bringing to book those who were not initially named but are implicated by evidence during trial. They argue the order is proper to ensure justice and does not require interference.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Pammi Kumari and Ors. v State of Bihar	2018 Crl.LJ 411	Mentioned Only	Cited by counsel to illustrate the view that Section 319 is an extraordinary power to be exercised sparingly; the court does not treat it as binding precedent in this case.
Yashodhan Singh and Ors v. State of Uttar Pradesh and Ors	2023 INSC 652	Mentioned Only	Cited by respondents; used to reflect ongoing jurisprudence about 319, but not expressly adopted in the court’s reasoning.
J.Prabhavathiamma and Another v. State of Kerala and Others	2007 (4) KHC 72	Mentioned Only	Cited as part of the jurisprudence on 319; not specifically distinguished or followed in the decision.
Rajendra Singh v. State of U.P. and Another	2007 7 SCC 378	Mentioned Only	Cited among the authorities illustrating the scope of 319; no direct doctrinal adoption in the order.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945** **CRL.MC NO. 6797 OF 2023** **CRIME NO.790/2010 OF Vadakkancherry Police Station,** ## **Palakkad** **AGAINST CRMP 4630/2022 OF CHIEF JUDICIAL MAGISTRATE** ## **PALAKKAD** ## **PETITIONERS/ACCUSED 3 & 5:** **1 SATHEESH, AGED 38 YEARS, S/O.KESAVAN M., KANDAPATTAM, ULLATTU VEEDU, VADAKKENCHERRY, ALATHUR, PALAKKAD, PIN - 678683** - **2 JAYAKUMAR.P.K,** **AGED 42 YEARS, S/O.LATE RAMA MENON, SITA MANDIRAM GRAMAM, VADAKKENCHERRY, ALATHUR, PALAKKAD, PIN - 678683** **BY ADV V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 KRISHNA MENON,** **AGED 72 YEARS, S/O.MADHAVAN, KUTTIAPPAN, 24/38, BUCHI BABU STREET, TRIPLICANE, CHENNAI, TAMIL NADU, PIN - 600005** **BY ADVS.** **SRI.NOUSHAD K.A., PUBLIC PROSECUTOR SRI.P.VIJAYAKUMAR PUTHIYAKOVILAKOM** Crl.M.C. No.6797/23 **-:2:-** **SRI.C.R.REGHUNATHAN SRI.M.V.ASHIM SRI.B.HARRYLAL** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No.6797/23 ## **-:3:-** ## **BECHU KURIAN THOMAS, J.** ## **-------------------------------Crl.M.C. No.6797 of 2023** **---------------------------------** Dated this the 30[th] day of January, 2024 ## **ORDER** Petitioners have been arrayed as additional accused 3 and 5 in C.C. No.128/2019 on the files of the Chief Judicial Magistrate's Court, Palakkad. They have been arrayed as accused pursuant to the impugned order under section 319 of the Code of Criminal Procedure, 1973. The said order is under challenge. 2. Prosecution alleged that on 25.08.2010 at around 12.45 am, the defacto complainant's relative was attacked by the accused due to previous enmity, and he sustained serious injuries including fracture and the accused even committed robbery of a gold necklace apart from an amount of Rs.23,000/-. 3. Though petitioners were not included as accused in the final report, during the evidence of the prosecution witnesses, an application was filed by the Deputy Director of Prosecution under section 319 Cr.P.C. seeking to array four persons, including the petitioners, as accused on the basis of the deposition of PW2 – the injured. By a detailed order dated 03-01-2023 in Crl. M.P Crl.M.C. No.6797/23 ## **-:4:-** No.4630 of 2022, the learned Chief Judicial Magistrate, after considering the objections raised by the existing accused in the case, found it essential to include four more persons as additional accused by the impugned order and issued summons to them. 4. Sri.V.A.Johnson, learned counsel for the petitioners, contended that the learned Chief Judicial Magistrate had erred in arraying the petitioners as additional accused without any material and without bearing in mind the scope and purport of section 319 Cr.P.C. It was submitted that during the course of the investigation, PW2 had never spoken against the petitioners or other persons, now sought to be arrayed as additional accused, and for the last ten years since the alleged incident on 25.08.2010, despite being interrogated by different officials there was absolutely no material against the petitioners for being arrayed as accused. The learned counsel relied upon the decisions of the Patna High Court in **Pammi Kumari and Ors. v State of Bihar** (2018 Crl.LJ 411) and contended that section 319 Cr.P.C. confers an extraordinary power that ought to be exercised sparingly and only in exceptional circumstances. The learned counsel also referred to the complaint filed by the Crl.M.C. No.6797/23 ## **-:5:-** injured CW2 initially and pointed out that there is no reference about the petitioners in the said complaint and, therefore, his present deposition is only an afterthought with malafide intentions. 5. Sri. P. Vijayakumar, learned counsel for the second respondent on the other hand, contended that during the examination of PW2 - the injured, he had specifically referred to the four persons who were the assailants. It was further pointed out that even in Ext.P2 complaint, though the names of the accused were not mentioned, it was specifically stated that the first accused had arranged for the other persons to assault the victim, and therefore, the contention now raised that there was no reference in Ext.P2 is without any merit. Learned counsel relied upon the decisions of the Supreme Court in **Yashodhan Singh and Ors v. State of Uttar Pradesh and Ors** (2023 INSC 652) **J.Prabhavathiamma and Another v. State of Kerala and Others** (2007 (4) KHC 72) as well as in **Rajendra Singh v. State of U.P. and Another** (2007) 7 SCC 378. 6. I have heard Sri. Noushad K.A learned Public prosecutor also. 7. The scope of power of a court to add an accused Crl.M.C. No.6797/23 ## **-:6:-** invoking the jurisdiction 319 of the Cr.P.C. has been considered by the Supreme Court and other High Courts in numerous decisions. The said power is conferred to ensure that a fair trial takes place and justice is done to the society by bringing to book all those guilty of the offences. While it is the lookout of the law that no innocent is punished, it is also the legal mandate that no one who appears to be guilty escapes trial. Viewed in the above perspective, it is the duty of the court to render justice to the victim by taking recourse to the power under section 319 Cr.P.C. to proceed against persons, though not arrayed as accused, but have, during the course of evidence, come to the court's knowledge about their possible involvement. 8. No doubt, the power under section 319 Cr.P.C. is extraordinary and ought to be used sparingly and only if compelling reasons exist for taking cognizance against persons who were not arrayed initially. However, when such compelling circumstances exist, which is warranted not by the quantity of evidence but by the quality of evidence, and the court is satisfied that they ought to be given a chance to participate in the trial, necessarily the court is vested with powers to include them in the array of accused and proceed. The language of the section Crl.M.C. No.6797/23 ## **-:7:-** postulates that the involvement of other accused who are sought to be added must appear from the evidence tendered in the course of any enquiry or trial. Therefore, if the court is satisfied that it appears from the evidence in the trial that another accused must be arraigned, certainly, the power is available to proceed against such persons. 9. The learned Chief Judicial Magistrate has, in the impugned order, observed that PW2 had, in his chief examination, referred to 4 persons as the assailants apart from the accused. The court felt that something more than a prima facie case had been brought against the four proposed accused persons and there were sufficient grounds to include them also as additional accused. 10. Though it was contended that PW2 in his initial complaint, had not referred to any person other than the existing accused, a perusal of the said complaint reveals that though the name of only the existing accused was mentioned, he had specifically stated that other persons had assaulted him on the direction of the present accused. In view of the above, the order of the learned Chief Judicial Magistrate invoking the power under section 319 Cr.P.C to add additional accused does not call for any Crl.M.C. No.6797/23 **-:8:-** interference under section 482 of the Cr.P.C. Therefore, this criminal miscellaneous case is dismissed. **Sd/BECHU KURIAN THOMAS JUDGE** vps Crl.M.C. No.6797/23 ## **-:9:-** ## **APPENDIX** ## **PETITIONER'S/S' ANNEXURES** - **ANNEXURE 1 TRUE COPY OF THE F.I.R.NO. 790/2010 OF VADAKKENCHERRY POLICE STATION, PALAKKAD DATED 25.08.2010 ALONG WITH F.I.STATEMENT** - **ANNEXURE 2 TRUE COPY OF THE COMPLAINT DATED 23.11.2010 SUBMITTED BY PW2/INJURED BEFORE THE S.I OF POLICE , VADAKKENCHERRY** - **ANNEXURE 3 TRUE COPIES OF THE STATEMENTS OF PW2/INJURED U/S.162 OF CR.P.C** - **ANNEXURE 4 TRUE COPY OF THE FINAL REPORT IN C.C.NO.128/2019 OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD DATED 24.04.2017** - **ANNEXURE 5 TRUE COPY OF THE COMPLAINT DATED 19.10.2019 SUBMITTED BEFORE THE DEPUTY SUPERINTENDENT OF POLICE, CRIME DETACHMENT, PALAKKAD** - **ANNEXURE 6 TRUE COPY OF THE DEPOSITION OF PW2 DATED 18.10.2022 IN C.C.NO.128/2019 OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD** - **ANNEXURE 7 TRUE COPY OF CRL.M.P.NO.4630/2022 IN C.C.NO.128/2019 OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD DATED 24.11.2022** - **ANNEXURE 8 CERTIFIED COPY OF THE ORDER IN CRL.M.P.NO.4630/2022 IN C.C.NO.128/2019 OF THE COURT OF CHIEF JUDICIAL** Crl.M.C. No.6797/23 ## **-:10:-** **MAGISTRATE, PALAKKAD DATED 03.01.2023** **ANNEXURE 9 TRUE COPY OF THE ORDER IN CRL.M.P.NO.1668/2023 IN C.C.NO.128/2019 OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD DATED 12.04.2023**