Lekshmikutty Amma vs Sub Inspector of Police and Others

K. Harilal, J.—The Revision petitioner is the additional third accused in CC No. 779/2007 on the files of the Judicial First Class Magistrate Court-I, Pathanamthitta. She has been arraigned in the above CC as 3rd accused by virtue of the impugned order under challenge. The said arraignment was made on an application filed by the Assistant Public Prosecutor u/s 319 of the Cr.P.C. Being aggrieved by the impleadment, this revision petition is filed on various grounds. The counsel for the Revision petitioner contends that the order under challenge is illegal and unsustainable under law. The lower Court has not formed an opinion; but without forming an opinion, the Revision petitioner has been implicated as third accused. So also, there must be some fresh evidence. In the instant case, without any fresh evidence the Revision petitioner has been implicated. The counsel further submits that the power u/s 319 cannot be exercised mechanically and it should have been exercised with due care and caution. The Public Prosecutor has no right to file such an application.

Per contra, the counsel appearing for the third respondent submits that the application filed by the Assistant Public Prosecutor was in order as he has locus standi to file such a petition. The learned counsel points out that though the allegations were raised against the Revision petitioner in the Fl Statement given to the police, the police omitted her in the charge-sheet. But when she was examined in Court, she again gave statements implicating the involvement of the Revision petitioner in the alleged offence. Therefore, at any point, the impugned order is justifiable.

Going by the impugned order, it is seen that the learned Magistrate has evaluated the evidence as available on record and on such scrutiny it was revealed that the de facto complainant has raised allegations against the Revision petitioner at the time of launching prosecution. So also while giving evidence as PW1, she maintained her grievance against the revision petitioner as well. She has given evidence in chief examination implicating the involvement of the Revision petitioner in the commission of the alleged offence. It is also found that the de facto complainant has not been subjected to cross-examination.

Going by the said findings, I am of the opinion that the learned Magistrate has meticulously considered the evidence on record and formed an opinion; but formation of an opinion at this stage-is premature as no cross-examination has been done. But the learned counsel for the Revision petitioner cited Kailash Vs. State of Rajasthan and Another, and submits that the said impleadment is premature and the power u/s 319 could have been invoked only after completion of the trial. In the above said decision, the Supreme Court held as follows:

It is evident that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at the satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. Such satisfaction can be arrived at inter alia upon completion of the cross-examination of the said witness. For the said purpose, the Court concerned may also like to consider other evidence.

In view of the above decision, I am of the opinion that the said arraignment is a premature one and the learned Magistrate could not have implicated the Revision petitioner as accused at this stage; i.e., before the cross-examination. Certainly, the learned Magistrate is at liberty to implicate any person not being the accused, if the said accused appears to have committed offence but in the instant case, evidence now available is not sufficient to exercise the said jurisdiction. In the above view of the matter, the impugned order is set aside. But the Trial Court is at liberty to exercise jurisdiction u/s 319 in a later stage.

This Revision Petition is disposed of accordingly.