Soorya Noushad v. State of Kerala and 2 others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 10TH DAY OF JUNE 2019 / 20TH JYAISHTA, 1941** ## **Crl.MC.No.2152 of 2019** **AGAINST THE ORDER/JUDGMENT IN CC 1113/2014 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, KANJIRAPPALLY** **CRIME NO.289/2014 OF Erumeli Police Station , Kottayam** ## **PETITIONER/S:** **MRS.SOORYA NOUSHAD, AGED 55 YEARS, W/O. NOUSHAD, VATTAKKAYAM HOUSE, CHARALA, ERUMELI P.O, KOTTAYAM DISTRICT (WITHIN THE LIMITS OF ERUMELI POLICE STATION) BY ADVS. SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE SRI.TOM E. JACOB** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 THE SUB INSPECTOR OF POLICE, ERUMELI POLICE STATION, KOTTAYAM DISTRICT 686 509. 3 SONIA P.K, PULIKKAL HOUSE, CHIRAKKADAVU, KANJIRAPPALLY 686 506. BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS SRI.PRANOY K.KOTTARAM** ## **OTHER PRESENT:** **SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1 AND R2,** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 2152 of 2019 ================== Dated this the 10[th] day of June, 2019 **O R D E R** The petitioner herein is accused No.1 in the Calendar Case, C.C.No.1113/2014 on the file of the Judicial First Class Magistrate's Court-II, Kanjirappally, in which cognizance has been taken for offence under Sec. 498A of the I.P.C. It is pointed out that accused No.1 is the husband of the defacto complainant and the petitioner (A-2) is the aunt of accused No.1. It is pointed out that petitioner's name was mentioned in the first information report (FIR). The Police after investigation has reached conclusion at the time of finalization of the investigation that the petitioner is not involved in the said crime. Accordingly, her name was removed from the array of accused persons in the said crime in Anx.1 final report/charge sheet filed in the abovesaid Crime No. 289/2014 of Erumeli Police Station, which has now led to the institution of C.C.No. 1113/2014 on the file of the Judicial First Class Magistrate's Court-II, Kanjirappally. 2. Later when the defacto complainant was examined as P.W-1, she raised several allegations against the petitioner and had completed the examination in chief by stating that the petitioner is to be included as an accused by the court and the defacto complainant Crl.M.C.2152/19 - : 3 :- has thus urged that the petitioner is to be included as an accused by the court in invoking under Sec. 319 of the Cr.P.C. But that during cross examination the defacto complainant has admitted that most of the allegations, which she has made before the court, were not revealed to the Police. In that regard the deposition of P.W-1 has been produced as Anx. II. 3. Thereafter, the defacto complainant has filed Anx.III before the court, which has now been numbered Crl.M.P.8871/2018 purportedly under Sec.319 of the Cr.P.C. The learned Magistrate as per the impugned Anx. IV order dated 30.11.2018 in Crl.M.P.No. 8871/2018 in C.C.No.1113/2014 has allowed the said petition and summons has been issued against the petitioner. It is this order at Anx.IV that is under challenge in this Criminal Miscellaneous Case. The prayer in this Criminal Miscellaneous Case is as follows: _“.... to allow this Criminal Miscellaneous Case and quash Annexure IV Order dated 30.11.2018 in CMP No.8871/2018 in C.C.No. 1113/14 of the JFCM-II, Kanjirappally.”_ 4. Heard Sri.Liju J.Vadakedom, learned counsel appearing for the petitioner, Sri.Amjad Ali, learned Prosecutor appearing for respondents 1 & 2 and Sri.Grashious Kuriakose, learned Senior Counsel instructed by Sri.George Mathews, learned counsel appearing for contesting respondent No.3 (lady defacto complainant). Crl.M.C.2152/19 - : 4 :- 5. The main contentions urged by the petitioner are as follows: - _A. That as per the decision of the Apex Court in_ _**Hardeep Singh v. State of Punjab & Ors** . reported in (2014) 3 SCC 92, it is found that the power under Sec. 319 of the Cr.P.C. can be invoked only when a strong and cogent evidence is disclosed against a person._ - _B. That a perusal of the impugned Anx. A-IV order would make it clear that the learned Magistrate, apart from merely stating that the “witness has stated the ingredients of the offence” against the petitioner herein, has not stated any other ground so as to implead the petitioner as an additional accused in the instant Calendar Case. Further that the discrepancies brought out in the evidence of P.W-1 during her cross examination has also not been considered. That in short the learned Magistrate has not considered whether a strong and cogent evidence has been made out against the petitioner as mandated in the abovesaid decision._ - _C) Further that the learned Magistrate has not considered whether Anx.III petition filed by the defacto complainant overlooking the prosecution agency is maintainable or not._ 6. Sri.Liji.J.Vadakedom, learned counsel appearing for the petitioner has pointed out that the Apex Court has held in _**Hardeep Singh's case**_ supra that the power under Sec.319 of the Cr.P.C. is discretionary and is an extra ordinary power and it is to be exercised very sparingly and only in those cases and circumstances of the case Crl.M.C.2152/19 - : 5 :- so warrant, etc. This Court in the decisions as in _**Prakashan v. State of Kerala**_ , reported in 2016(4) KLT 787, while construing the scope of Sec. 319 of the Cr.P.C., has held the court cannot just turn against another person whenever it comes across evidence connecting that other person also with the offence and that the power under Sec. 319 is really extra ordinary and it has to be used very sparingly and with due caution and 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 the said provision, the requisite ingredients must be fulfilled and commission of an offence by a person not facing trial must, thereafter appear to the court concerned and it cannot be ipse dixtit on the part of the court. That discretion in this behalf should be judicially exercised and it is incumbent upon the court that it should 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, etc. That a judicial exercise is called for, keeping in conspectus the facts of the case, its stage and the quantum of evidence collected till then. It will be profitable to refer paragraph 7 of the decision of this Court in _**Prakashan's case**_ supra, which reads as follows: > _“7. It is by now settled that the power under S.319 is really extraordinary and it has to be used sparingly and with caution only if_ Crl.M.C.2152/19 - : 6 :- _compelling reasons exist for proceeding against a person against whom action has not been taken. Before a Trial Court seeks to take recourse to 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.”_ ## 7. It will also be pertinent to refer to para 106 of the ## judgment of the Apex Court in _**Hardeep Singh & Ors. v. State of**_ ## _**Punjab**_ , reported in (2014) 3 SCC 92, p.138, which reads as follows: _**“106.** 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-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 Section 319 CrPC. In Section 319 CrPC 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 Section 319 CrPC to form any opinion as to the guilt of the accused.”_ ## 8. It will be pertinent to refer to the impugned Anx.IV order ## rendered by the learned Magistrate on 30.11.2018, which reads as follows: ## _“O R D E R_ ## _Petition filed by the petitioner u/s 319 Cr.P.C._ _Heard the learned APP. Perused the oral testimony of the defacto complainant. I am satisfied that the witness has stated ingredients of the offence against Soorya Nousshad. Hence it is necessary to implead Mrs.Soorya Noushad in the array of accused. In the result application allowed.”_ ## 9. A mere perusal of the impugned Anx.IV order would ## clearly disclose that the only so-called reason stated by the learned Crl.M.C.2152/19 - : 7 :- Magistrate to justify the issuance of the impugned order is that the learned Magistrate is satisfied that the witness has stated the ingredients of the offence against the petitioner. Such an order as in Anx. IV cannot be said to be an order, which has been passed in considered invocation of the judicial discretion conferred under Sec. 319 of the Cr.P.C. and in full consonance with the various legal parameters as held in the aforesaid decision of the Apex Court and this Court, etc. Therefore, the impugned Anx. IV order cannot be sustained even for a moment and the matter is liable to be remitted. Accordingly, it is ordered that the impugned Anx. IV order dated 30.11.2018 rendered by the Judicial First Class Magistrate's Court-II, Kanjirappally, on Crl.M.P.8871/18 in C.C.No. 1113/2014 will stand set aside and Crl.M.P.8871/2018 in C.C.No.1113/2014 will stand remitted to the learned Magistrate concerned for consideration afresh. The learned Magistrate will consider the entire matter afresh and should also advert to the legal principles laid down in various decisions of the Apex Court and this Court, as referred to herein above and then should pass an order strictly in terms of the parameters laid down in the abovesaid decision, without much delay. In the abovesaid process, the learned Magistrate should also consider the preliminary issue as to whether Anx.III petition filed at the Crl.M.C.2152/19 - : 8 :- instance of the defacto complainant is not maintainable, as it is not filed by the prosecution. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** Crl.M.C.2152/19 - : 9 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 THE COPY OF THE FINAL REPORT ALONG WITH THE FIR AND FIS IN C.C NO. 113/14 BEFORE THE JMFC-II, KANJIRAPPALLY.** ## **ANNEXURE II** **THE COPY OF THE DEPOSITION GIVEN BY THE DE FACTO COMPLAINT AS PW1 IN CC NO. 1113/14 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KANJIRAPPALLY** **ANNEXURE III THE COPY OF THE PETITION (CMP NO. 887/2018) DATED 9-11-2018 FILED BY PW1/DE FACTO COMPLAINT IN C.C NO. 1113/14 BEFORE THE JFMCII, KANJIRAPPALLY.** **ANNEXURE IV THE COPY OF THE ORDER DATED 30-11-2018 IN CMP 8871/2018 IN C.C NO. 1113/14 BEFORE THE JFMCII, KANJIRAPPALLY.**