Vijayan and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 07TH DAY OF JANUARY 2019 / 17TH POUSHA, 1940** ## **Crl.MC.No. 7835 of 2018** **SC NO.1354/2010 ON THE FILES OF ASSISTANT SESSIONS COURT, NEYYATTINKARA** **CRIME NO.18/2003 OF VELLARADA POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONERS/PETITIONERS/CWS 1 TO 4:** - **1 VIJAYAN, AGED 52 YEARS, S/O. VELAYUDHAN, AYANIYARATHALA VEEDU, CHEMPOOR DESOM, KEEZHAROOR VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM DISTRICT.** - **2 NITHYAMBARAN, AGED 60 YEARS, S/O. VELAYUDHAN, AYANIYARATHALA NITHYA BHAVAN, CHEMPOOR DESOM, KEEZHAROOR VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM DISTRICT.** - **3 GEETHA, AGED 50 YEARS, D/O.DEVAYANI, AYANIYARATHALA NITHYA BHAVAN, CHEMPOOR DESOM, KEEZHAROOR VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM DISTRICT.** - **4 GIRIJA, AGED 48 YEARS, D/O.SARASAMMA, AYANIYARATHALA VEEDU, CHEMPOOR DESOM, KEEZHAROOR VILLAGE, KATTAKKADA TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.GOPAKUMAR R.THALIYAL SRI.V.ANIRUDHAN NAIR** ## **- RESPONDENT/COUNTER PETITIONER/COMPLAINANT STATE:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** ## **SRI B JAYASURYA-PUBLIC PROSECUTOR.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 7835 of 2018** **2** ## **ORDER** Under challenge in this petition filed under Section 482 of the Cr.P.C. is the order dated 22.03.2018 of the Assistant Sessions Judge, Neyyattinkara. The learned Sessions Judge by the impugned order, dismissed the petition filed by the petitioners herein seeking to arraign one Bhadran as an accused in the course of trial under Section 319 of the Code of Criminal Procedure (the “Code” for short). 2. The petitioners are relatives. The 1[st] petitioner is the de facto complainant in Crime No.18 of 2003 of the Vellarada Police Station. The said crime was registered in connection with an incident, which took place on 5.3.2003 at about 4 p.m. The prosecution allegation is that accused Nos.1 to 4 in the FIR, in furtherance of their common intention, wrongfully restrained the elder brother of the de facto complainant and attacked him with weapons. On hearing his cries, the de facto complainant, his wife Girija and his brother's wife, Geetha, reached the spot. The accused then targeted the de facto complainant and attacked him. Some specific overt act is attributed to the aforesaid Bhadran as **Crl.MC.No. 7835 of 2018** **3** well. When the women intervened, they were attacked and their clothes were torn. Based on the information furnished by the 1[st] petitioner, the subject Crime was registered under Sections 341, 323, 324 and 354 r/w Section 34 of the IPC arraying as many as four persons. Bhadran was the 4[th] accused in the crime. 3. On the same day itself, Crime No.17 of 2003 was registered at the instance of one Anil Kumar, arraying the petitioners herein as accused, wherein the accusations are under Sections 341, 323, 324, 308 r/w Section 34 of the IPC. 4. Investigation of both cases was initially conducted by the Sub Inspector of Police, Vellarada. The 4[th] accused in Crime No.18 of 2003 filed a petition before the Superior Police Officer stating that he was innocent and was roped in on frivolous accusations. The District Police Chief entrusted both crimes to the Deputy Superintendent of Police for investigation. Later, the investigation was made over to another officer of the same rank. He conducted a detailed probe and concluded that the 4[th] accused in Crime No. 18 of 2003 was not involved in the crime. He was removed from **Crl.MC.No. 7835 of 2018** **4** the array of the accused and final report was laid before the Court below on 21.10.2005. 5. The case took more than 12 years to come up for trial. The petitioners were cited as CWs 1 to 4 and on receipt of summons, they appeared before Court and tendered their evidence. They spoke about the involvement of the aforesaid Bhadran as well. After their evidence was over, they filed a petition under Section 319 with a prayer to arraign the aforesaid Bhadran as the 4[th] accused. 6. The learned Sessions Judge by a well considered order came to the conclusion that the evidence tendered by the witnesses concerning Bhadran did not inspire confidence and it was further held that the attempt of the petitioners was to ensure that he is arraigned as an accused and nothing else. Their evidence was at variance from their earlier statement and were contradictory _inter se_ . Holding so, their application was dismissed. 7. The learned counsel appearing for the petitioner **Crl.MC.No. 7835 of 2018** **5** contended that the aforesaid Bhadran was initially named in the FIR and since he is a Government Servant holding a high post, he had wielded his influence and managed to get himself extricated from the final report. He would further contend that all the prosecution witnesses, who were examined, had clearly detailed his role in the incident. He would further point out that though the learned Sessions Judge had left open their right to approach the court at a later stage, to prevent the same from happening, the prosecution has mischievously given up the remaining witnesses. This is a ploy adopted by the prosecution to save the aforesaid Bhadran, contends the learned counsel. 8. Heard the learned Public Prosecutor, who refuted the submissions. He contended that a meticulous probe was carried out by a superior officer of the Police and he had concluded that the Bhadran was not involved. It is further submitted that the aforesaid Bhadran is a responsible public servant and the attempt of the petitioners is to rope him in. No interference is warranted, contends the learned Public Prosecutor. **Crl.MC.No. 7835 of 2018** **6** 9. I have considered the submissions advanced and have perused the impugned order as well as the materials made available. 10. Power under Section 319 of the Code of Criminal Procedure 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 exercised and not in a casual and cavalier manner. It is also settled 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, **Crl.MC.No. 7835 of 2018** **7** would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Code of Criminal Procedure (See **Hardeep Singh and Ors. v. State of Punjab and Ors** . 2014 (3) SCC 92). 11. In the case on hand, the learned Assistant Sessions Judge had meticulously considered the evidence let in by PWs 1 to 4 and came to the conclusion that they had gone out of their way to prop up their statement to show the involvement of the aforesaid Bhadran. Their evidence was discrepant in material particulars and was against their earlier version. It was held by the court below that their evidence cannot be relied on to proceed against the proposed accused. It was also held that the witnesses have given a go by to the earlier statements given before the investigating officer in order to implicate the proposed accused, who had worked as an Additional Law Secretary. After going through the evidence of PWs 1 to 4, I am unable to accept the submission of the learned counsel appearing for the petitioners that the same is cogent and convincing insofar as the person sought to be arrayed as the accused is concerned. **Crl.MC.No. 7835 of 2018** **8** 12. Testing the order passed by the learned Sessions Judge in the light of the Constitution Bench judgment of the Apex Court, I find that the learned Sessions Judge was well justified in rejecting the prayer of the petitioners. This petition will stand dismissed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** DSV/- //TRUE COPY// P.A. TO JUDGE **Crl.MC.No. 7835 of 2018** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **CERTIFIED COPY OF THE FIRST INFORMATION REPORT DATED 6.1.2003.** **ANNEXURE II** **CERTIFIED COPY OF THE FINAL REPORT DATED 21.10.2005.** **ANNEXURE III TRUE COPY OF THE PETITION DATED 27.1.2018.** **ANNEXURE IV CERTIFIED COPY OF THE ORDER IN C.M.P.NO.12/2018 IN S.C.NO.1354/2010 PASSED BY THE ASSISTANT SESSIONS JUDGE, NEYYATTINKARA DATED 22.3.2018.** **ANNEXURE V CERTIFIED COPY OF THE DEPOSITION OF PW1 SRI.VIJAYAN.** - **ANNEXURE VI CERTIFIED COPY OF THE DEPOSITION OF PW2 SRI.NITHYAMBARAN.** - **ANNEXURE VII PHOTO COPY OF THE DEPOSITION OF PW3 SMT.GEETHA.** - **ANNEXURE VIII PHOTO COPY OF THE DEPOSITION OF PW4 SMT.GIRIJA.** **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE**