IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID THURSDAY, THE27H DAY OF MARCH20146TH CHAITHRA, 1936 Crl.MC.No. 1941 of 2012 () --------------------------- CC.NO. 363/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALUVA ------------------------------- PETITIONER/ADDITIONAL ACCUSED: ---------------------------------------------------------- SREE GOPAL, RAJEEV NAGAR, PUTHUKKALAVATTAM, ELAMAKKARA, EDAPALLY SOUTH VILLAGE. BY ADVS.SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR SRI.MANU TOM RESPONDENT(S)/COMPLAINANT AND ORIGINAL ACCUSED: -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. SAJAN,S/O. SACHIDANANDAN, PALLATH HOUSE, RAJEEV NAGAR, PUTHUKKALAVATTAM, ELAMAKKARA, EDAPPALLYSOUTH VILLAGE.
3. SACHIDANANDAN, S/O.KUNJAN, PALLATH HOUSE, RAJEEV NAGAR, PUTHUKKALAVATTAM, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE. *ADDL.R4 IMPLEADED *R4: SMT. PUSHPAVALLI,AGED59YEARS, W/O.THANKAPPAN, HOUSE NO.49/695, RAJEEV NAGAR, PUTHUKKALAVATTAM, ELAMAKKARA, EDAPALLYSOUTH VILLAGE. *IS IMPLEADED AS ADDL.4TH RESPONDENT AS PER ORDER
DATED57/2012 IN CRL.M.A.NO.3722/12 IN CRL.M.C.NO.1941/2012. R1 BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH ADDL.4 BY ADV. SRI.P.SHAIJAN JOSEPH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON2703-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC.NO.1941/2012 APPENDIX PETITIONER(S) ANNEXURES: ANNEX A THE CERTIFIED COPY OF THE WOUND CERTIFICATE FROM THE GENERAL HOSPITAL, ERNAKULAM DATED0810-2007 ANNEX B THE TRUE COPY OF THE STATEMENT OF SRI.AJEESH RECORDED UNDER SECTION161OF CRL.P.C ANNEX C THE TRUE COPY OF THE STATEMENT OF SHRI C.K.CHANDRA BOSE RECORDED UNDER SECTION161OF CRL.P.C ANNEX D THE TRUE COPY OF THE SAID STATEMENT OF SRI.SUNIL RECORDED UNDER SECTION161OF CRL P.C ANNEX E THE CERTIFIED COPY OF THE REPORT DATED1210-2007 FILED BY THE SUB INSPECTOR, KALAMASSERY. ANNEX F THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.892 OF2007FILED BEFORE THE JFCM-II,ALUVA. ANNEX G THE TRUE COPY OF THE EVIDENCE OF PW1 RECORDED IN CHIEF BY THE COURT OF JFCM-II,ALUVA, DATED1001-2012 ANNEX H THE CERTIFIED COPY OF THE PROCEEDINGS SHEET IN C.C. 363 OF2008OF JFCM-II, ALUVA. ANNEX I TRUE COPY OF THE FIR IN CRIME NO.892 OF2007OF KALAMASSERY POLICE STATION ANNEX J TRUE COPY OF THE FIRST INFORMATION STATEMENT FURNISHED BY THE DEFACTO COMPLAINANT IN CRIME NO.892 OF2007OF KALAMASSERY POLICE STATION RESPONDENT'S ANNEXURES: ANNEX R4(A) CERTIFIED COPY OF FIR AND FIS OF C.C.363/2009 OF HON'BLE JFCM COURT-II, ALUVA. /TRUE COPY/ P.S.TO.JUDGE sts P.UBAID, J.
~~~~~~~~~~ Crl.M.C No.1941 of 2012 ~~~~~~~~~~~ Dated this the 27th March, 2014 ORDER
The petitioner herein challenges the procedural order of the learned Judicial First Class Magistrate -II, Aluva dated 10.1.2012 arraigning him as the 3rd accused by invoking the powers under Section 319 of the Code of Criminal Procedure, in C.C No.363 of 2008. Crime in the said case was registered by the Police on the First Information Statement given by the additional fourth respondent Pushpavally. In the First Information Statement, revealing offences under Sections 448, 323 and 427 of Indian Penal Code, she has implicated three persons. But during investigation, the Police found that the petitioner herein, implicated in the F.I.R had no involvement in the alleged incident of trespass and assault. Accordingly, the police submitted report before the learned Magistrate on 12.10.2007, that the investigation would proceed only against the other two persons. After investigation, the police submitted final report in court against the other two Crl.M.C No.1941 of 2012 2 accused.
2. Pending the proceedings, the de facto complainant (the 4th respondent herein) filed a petition before the learned Magistrate as C.M.P. No.2374/2011 seeking further investigation under Section 173 (8) of the Code of Criminal Procedure. Without and before passing orders in the said application, the trial court proceeded for trial. The de facto complainant was examined in Court as PW1 on 10.1.2012. In her examination in chief, she implicated three persons including the petition herein. Immediately, acting on the said statement, the learned Magistrate passed a procedural order arraigning the petitioner herein as the third accused under Section 319 of the Code of Criminal Procedure. The legality and propriety of the said order is under challenge in this proceedings, wherein, the said order is sought to be quashed under Section 482 of the Code of Criminal Procedure.
3. On a perusal of the case records, I find that the application filed by the de facto complainant for further investigation, is still pending. The diary extract furnished Crl.M.C No.1941 of 2012 3 from the trial court shows that the de facto complainant's husband was present in court on 29.3.2008 and it is seen recorded that there was a discussion in detail. No order prior to 29.3.2008 is seen, referring the parties to mediation or referring the matter to Lok Adalath. It is not known what discussion was made in open court during the proceedings. Anyway, finally, after attempts for settlement, and without taking decision on the application for further investigation, the learned Magistrate examined the de facto complainant on 10.1.2012.
4. Of course, in examination in chief, the de facto complaint has implicated three persons including the petitioner herein. In such case, the court cannot jump into any conclusion regarding the role of the person not mentioned in the final report. The court will have to evaluate the materials judiciously, apply the mind properly, and pass a judicial order under Section 319 of the Code of Criminal Procedure, if the absolute necessity of arraigning an additional accused is found by the trial court. Instead of adopting the proper and legal procedure, the learned Crl.M.C No.1941 of 2012 4 Magistrate in this case, mechanically passed a procedural order under Section 319 of the Code of the Criminal Procedure arraigning the petitioner as the third accused. I find some illegality and impropriety in the procedure adopted by the learned Magistrate. The matter will have to be considered afresh legally, and the Court will have to pass appropriate judicial order with reasoning under Section 319 of the Code of Criminal Procedure. Of course, before proceeding to such a course, the court will have also to pass orders on C.M.P. No.2373 of 2011.
5. When the de facto complainant has sought further investigation by filing a specific petition, the trial can proceed only after taking decision on the said application. The learned Magistrate will have to hear both the parties in detail and pass judicial order on C.M.P. No.2373 of 2011 before proceeding to act under Section 319 of the Code of Criminal Procedure, as indicated above. In the result, this petition is allowed. The impugned order of the court below dated 10.1.2012 in C.C No.363 of 2008 is hereby quashed, and the court below is directed to Crl.M.C No.1941 of 2012 5 pass a proper and judicial order under Section 319 of the Code of Criminal Procedure, as indicated above, if found necessary, of course, after taking a decision on C.M.P No.2373 of 2011. Sd/- P.UBAID JUDGE ma /True copy/ Crl.M.C No.1941 of 2012 6 Crl.M.C No.1941 of 2012 7