Sudharman v. Sunilkumar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938** ## **CRL.MC.NO. 6330 OF 2015 () ---------------------------** ## **CC 960/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA** ## **PETITIONER(S)/2ND ACCUSED (CW2):** **-------------------------------** ## **SUDHARMAN** **S/O. MADHAVAN, PERUMPADAPPU, AMBADIYIL VEEDU, KOCHI DIVISION 15, PALLURUTHI P.O.** **BY ADVS.SRI.SHAIJAN C.GEORGE SRI.C.K.SAJEEV SRI.M.T.AJITH SMT.S.REKHA KUMARI SMT.SAJITHA GEORGE** ## **RESPONDENT(S)/1ST ACCUSED/COMPLAINANT:** **--------------------------------------** ## **1. SUNILKUMAR** **S/O. VIJAYAN, MUKKUDITHARA VEEDU, WARD NO.16, VAYALAR PANCHAYAT VAYALAR P.O., CHERTHALA - 688 521.** **2. STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031.** **R1 BY ADV. SRI.A.N.RAJAN BABU R1 BY ADV. SRI.P.GOPALAKRISHNAN (MVA) R1 BY ADV. SRI.A.R.EASWAR LAL BY PUBLIC PROSECUTOR SMT.SEREENA GEORGE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **CRL.MC.NO. 6330 OF 2015** ## **APPENDIX** **PETITIONERS EXHIBITS:** **ANNEXURE-I:COPY OF THE FINAL REPORT IN C.C. NO.960/2011 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1, CHERTHALA.** **ANNEXURE 2:COPY OF THE ORDER SHEET IN C.C.960/2011 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA.** **RESPONDENTS EXHIBITS: NIL** **--------------------** **/TRUE COPY/** **P.A. TO JUDGE** **SKV** **RAJA VIJAYARAGHAVAN V., J. ===================** Crl. M.C. No.6330 of 2015 ======================= Dated this the 4[th] day of July, 2016 ## ORDER 1.In respect of an incident which took place on 1.2.2011 at 4.00 pm, Crime No.66 of 2011 of Pattanakkad Police Station was registered alleging offence punishable under Sections 279 and 338 of IPC and under Section 146 read with 196 of the Motor Vehicles Act. The sole accused in the said crime is the 1[st] respondent herein and the petitioner herein is the victim. He is arrayed as CW 2 in the final report. 2.The prosecution allegation is that on 1.2.2011 at 4 p.m., the 1[st] respondent had rode a Bike bearing registration No KL 04 R 7207 in a rash and negligent manner and dashed against the Motor Bike on which the petitioner herein was travelling, as a result of Crl. M.C. No.6330 of 2015 2 which the petitioner had sustained serious injuries. 3.After investigation final report was laid before the Jurisdictional Court. 4.At the stage of evidence, PW 1, who is the brother of the original accused and PW2 were examined. They deposed that the incident had occurred due to the negligence of the petitioner herein. The learned Magistrate without batting an eyelid recorded in the order sheet that the evidence of PW1 and PW2 reveals the involvement of the petitioner herein and invoking the powers under Section 319 of the Code, the victim was transposed as the 2[nd] accused. 5.I have gone through the evidence let in by PW1 and 2. PW1 is none other than the brother of the petitioner and PW2 is an Auto rickshaw driver. The learned Magistrate on very vague materials have passed an order without assigning any reasons. As contended by the learned Counsel, there was every reason for the witnesses examined by the prosecution to give a Crl. M.C. No.6330 of 2015 3 colored version of the incident to give a clean chit to the 1[st] accused by arraying the petitioner as a second accused in a case in which he was the victim is clearly illegal. 6.The issue regarding the scope and extent of powers of the Court to arraign any person as an accused during the course of inquiry or trial in exercise of power under S.319 of the Code has been set at rest by a Constitution Bench of this Court in the case of **Hardeep Singh v. State of Punjab** (2014 (1) SCALE 241). On a review of the authorities, the Apex Court had summarised the legal position in the following words: _"98. Power under S.319 CrPC is a discretionary and an extra - ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be_ Crl. M.C. No.6330 of 2015 4 _exercised and not in a casual and cavalier manner._ _99. 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 S.319 CrPC…….."_ 7.S.319 of the Code confers power on the Trial Court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under S.319 of the Code, the Apex Court has observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction Crl. M.C. No.6330 of 2015 5 under S.319 of the Code is much higher. 8.The learned Magistrate has passed the order in a casual and cavalier Manner. The powers under Section 319 of the code is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate was of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led can such powers be exercised. The said criteria cannot be said to have been met in the instant case. No one has a case till date that the incident had happened in a different manner and that the cause of incident was the negligence of the petitioner. The 1[st] respondent also has not moved the investigating agency or the Magistrate to set up a case that he was roped in falsely. That being the case, this Court is of the view that the impugned order cannot be sustained. Crl. M.C. No.6330 of 2015 6 9.The petition is allowed and the order passed arraying the petitioner as the 2[nd] accused is set aside. The learned Magistrate is directed to proceed with the trial and take it to its logical conclusion expeditiously. Sd/- **RAJA VIJAYARAGHAVAN V. JUDGE** SKV