P.A. Varghese - Petitioner @HASH State of Kerala and another

Mrs. Mary Joseph, J. - Petitioner, the complainant in C.C. No 528/2011 on the files of the Judicial First Class Magistrate Court-I, Vaikom has approached this Court seeking to quash Annexure A 3 order passed by the said court in Annexure A2 application filed before it as CMP No. 2495/2013 in C. C. No. 528/2011.

Annexure A I complaint was filed by the petitioner before JFCM Court, Vaikom alleging as follows Property having an extent of 52 cents comprised in Sy. No. 1223/5/1 of Kavikattukara of Muttuchira Village belongs to one Sumit P. Varghese, the son of the petitioner. It is further averred in the complaint that a tiled roof house with four rooms, lien to toilet, bathroom constructed with wood and stones which was facing east was also situated in the said property. A tenant was housed in the said property by the petitioner and he was taking usufructs from the property on behalf of his son. He had offered the property as security for the purpose of availing a loan to one Shaji Mathew, Panasseril from District Co-operative Bank, Kollayam. Sri Shaji Mathew, the Principal borrower had defaulted re-payment instalments towards the loan and thereupon, symbolic possession of the property was taken by the bank. W.P.(C) No. 31296/2008 was filed against the symbolic taking of possession, pursuant to which several interlocutory orders were passed. On 6-2-2009 at 4 p.m. the second respondent one Mr. Shibu along with 20 persons reached the property of the petitioner with a JCB bearing Regn. No. KL-36/4761, destroyed the building situated therein and thieved articles therefrom. The petitioner was also criminally intimidated on his visit to the site on intimation. Thereupon, a complaint was filed by the petitioner before the local Police which was not pursued with by the latter due to the influence of the opposite side. The petitioner thereupon was forced to lodge a private complaint alleging commission of the offences punishable under Sections 147, 451, 427, 506 (1) read with Section 141 of the Indian Penal Code (for short �I.P.C.�), the true copy of which is Annexure A 1 appended with this petition.

JFCM-I, Vaikom before which the complaint was filed by the petitioner, took, cognisance of the same for only the offences punishable under Sections 427 and 506 (1), I.P.C. Magistrate was reluctant to take cognisance of the offences punishable under Sections 141, 147 and 451, I.P.C. The petitioner filed CMP No. 2495/2013 before the Magistrate when the trial was about to be commenced, seeking for issuance of summons to the R.T.O., Vaikom to produce the �B� particulars, (particulars regarding the registration) of the JCB bearing Reg. No. KL-36/4761. It has also been pleaded in Annexure A2 that on obtainment of such details, it is proposed to file an application to implead the owner and driver of the JCB also as accused.

The JFCM, Vaikom, dismissed Annexure A2 as per order dated 20-4-2013, the photocopy of the same is appended along with as Annexure A3.

The petitioner is aggrieved by Annexure A3 order and therefore, has approached this Court seeking invocation of power under Section 482 of the Code of Criminal Procedure (hereinafter called �Cr.P.C.� for short) to get it quashed.

Sri. Varghese C. Kuriakose, the learned counsel appearing for the petitioner and Sri. Dhanesh Mathew Manjooran, the learned Public Prosecutor were heard on their rival contentions.

The specific contention put forth by the learned counsel for the petitioner was that Annexure A3 order if allowed to remain in force would work out serious prejudices to the petitioner. Annexure A 2 application was filed to obtain particulars disclosing the identity of the driver and the owner of JCB bearing Reg. No. KL 36/4761 allegedly involved in the transaction with reference to which Annexure A1 complaint was lodged by the petitioner. In Annexure A 2 application, the purpose intended was specifically stated as implement of the driver and the owner of the JCB as accused. It is contended by the learned counsel that the involvement of the JCB and 20 other identifiable persons apart from the sole named accused were also stated in Annexure A1 complaint and therefore, the Magistrate ought to have allowed Annexure A 2 application so as to enable the petitioner to implead the driver and the owner of the JCB in the array of the accused. The Magistrate passed Annexure A 3 order in ignorance of the aforesaid aspects and therefore, is per se illegal and needs interference.

Secondly, the learned counsel has put forth the contention that in the impugned order, the Magistrate found fault with the petitioner for not challenging the order by which cognisance was taken only in respect of offences punishable under Sections 427 and 506 (I), I.P.C. It is contended by the counsel that offence under Section 427 was taken cognisance of by the Magistrate. According to him, the offence involved under Section 427, I.P.C. is criminal mischief. The allegation in Annexure A 1 was that the house was destroyed or in other words, the mischief was done on the house using the JCB. Therefore, without the driver of the lorry, the offence would not have been accomplished. Therefore, the alleged offence of mischief to sustain, the driver and the owner of the JCB must be there in the array of the accused. It is contended vehemently by the learned counsel that if the Magistrate had applied his mind to those aspect, the impugned Annexure A 3 order ought not to have been passed and therefore, interference is warranted.

The contention thirdly put forth by the learned counsel for the petitioner was that by passing the impugned Annexure A 3 order, the Magistrate has for closed the venture of the petitioner to adduce evidence under Section 319, Cr. P.C. According to him, Annexure A 2 application was filed with a view to enable the'' petitioner to adduce evidence regarding the identity of the driver and the owner of the JCB, who are participants in the alleged commission of the offence of mischief and therefore, the Magistrate has acted illegally, in a manner totally unheard of law and Annexure A3 order, which is the outcome of the said Act needs to be interfered with.

The argument put forth fourthly was that at the time of filing of Annexure A 2 application, the trial in its real sense had not started. According to him, provisions like Section 311, Cr. P.C. contemplate recalling of witnesses at any stage even after closure of evidence and therefore, the observation of the Magistrate in paragraph 4 of Annexure A 3 impugned order that Annexure A 2 application was filed belatedly is without any basis. It is canvassed on the basis that, Annexure A 3 order is per se illegal and calls for interference.

Urging contentions as aforesaid the learned counsel for the petitioner pressed for setting aside Annexure A 3 order.

Per contra, Sri, Dhanesh Mathew Manjooran, the learned Public Prosecutor resisted the contentions put forth as here in above and urged that interference of any nature with respect to the impugned order is uncalled for as the Magistrate has correctly passed the order.

I have gone through the impugned Annexure A 3 order. It was passed in CMP No.2495/2013, which was filed in C.C. No.528/2011 pending on the files of the JFCM Court-I, Vaikom. The petitioner in the impugned order is the petitioner in Annexure A 1 complaint, which was taken cognisance of by the Magistrate and numbered as C.C. No. 528/ 2011. In Annexure A1 complaint, the allegation was that the sole named accused therein along with 20 identifiable persons have formed themselves into an unlawful assembly and trespassed into the property belonging to the complainant/petitioner and with the involvement of the JCB, committed mischief therein and also intimidated him. The offences allegedly involved in Annexure A1 complaint were those punishable under Sections 147, 451, 427 and 506 (1) r/w Section 141, I.P.C. The Magistrate took cognisance upon Annexure A1 complaint for the offences under Sections 427 and 506 (I), I.P.C. alone and dismissed the complaint with reference to the offences under Sections 147 and 451 r/w Section 141, I.P.C., under Section 203, Cr. P.C. At this stage that the complainant/petitioner has approached the Magistrate, preferring Annexure A 2 application.

It is seen stated by the Magistrate in the impugned Annexure A3 order that Annexure A 2 application was filed at a stage when trial was about to be commenced. Therefore, there cannot be any doubt with respect to the fact that Annexure A 2 application was filed at the post cognisance stage. Impugned order reveals that the Magistrate dismissed the complaint with reference to the allegation regarding commission by the accused of the offences punishable under Sections 147 and 451 r/w Section 141, I.P.C., under Section 203, Cr. P.C. Therefore, there is no dispute with respect to the fact that Annexure A 2 application was filed at a stage when the Magistrate has formed an opinion after enquiry conducted under Section 202, Cr. P.C. to issue process to the accused, or in other words, when the trial was proposed to be commenced as rightly observed by the Magistrate.

In this context, it is relevant to have a look at Chapter XIV of Cr. P.C. dealing with conditions requisite for initiation of proceedings. The Chapter starts with Section 190 which deals with cognisance of the offences by Magistrates. In the case on hand, cognisance was taken by the Magistrate on the basis of a private complaint filed by the petitioner. Therefore, the cognisance was taken under Section 190(1)(a), Cr. P.C. Admittedly of the petitioner, taking of cognisance on Annexure A1 private complaint was restricted by the Magistrate for the offences under Sections 147 and 451 r/w Section 141, I.P.C. The petitioner has not raised any challenge with reference to the dismissal of the complaint by the Magistrate regarding the other offences. If by the order taking cognisance solely on some of the offences alleged, the petitioner was prejudiced, he would have challenged the same in appropriate forum. But, it is pertinent to note from the dictum of the Apex Court in Dr. Mrs. Nuper Talwar v. C.B.I. Delhi and another reported in AIR 2012 SC 847 :-

"Order whereby cognisance of offence has been taken by the Magistrate should not be interfered with unless it is perverse or based on no material. Superior Court should exercise at most restrain and caution before interfering with an order of taking cognisance of the Magistrate, otherwise the holding of a trial will be stalled. The Superior Courts should maintain this restrain to uphold the rule of law and sustain the faith of the common man in the administration of justice."

Had there been any case for the petitioner that the Magistrate was acted in a perverse manner while taking cognisance or that the act of taking cognisance was based on no material, then alone, he can challenge the same. In the case on hand the petitioner has not raised any challenge with regard to the refusal of the Magistrate taking cognisance of the offences punishable under Sections 147 and 451 read with Section 141, IPC, on the ground that the latter has acted in a perverse manner.

As I have already observed, Annexure A2 application was filed after taking cognisance and prior to the commencement of the trial. In this context, it is apposite to have a look at the relevant portion of Annexure A2 application, quoted here in below for convenient reference :-

"Going by the averments in the complaint, the driver and owner of the said vehicle are accused. Their address and identity can be established if summons is issued to RTO, Vaikom to produce before this Hon�ble Court, the B particulars (copy of the certificate of registration) pertaining to the vehicle bearing Reg. No. KL 36/4761. Hence this petition is filed. Once, the particulars are obtained, the petitioner will be filing an application to implead the owner and driver of JCB as accused in this case. Therefore it is respectfully prayed that this Hon�ble Court may be pleased to issue summons to RTO, Vaikom to produce before this Hon�ble Court."

Therefore, the purpose behind filing of Annexure A2 application was to obtain the particulars relating to the whereabouts of the owner and the driver of the JCB, with the involvement of which, the offence of mischief was committed and to take steps to bring them in the array of the accused. There is nothing illegal in filing applications to summon any person or call for particulars for enabling proper prosecution in a case. That power is in fact conferred on a Magistrate under Section 254 (2), Cr.P.C. which reads :

"254 (1).................................

(2) The Magistrate may if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing."

But as the averments in Annexure A2 reveals, the particulars are called for solely for getting information about the persons for the purpose of imp-leading them as accused after taking cognisance. It is impermissible by any of the provisions under Chapter XIV of Cr. P.C. at the post cognisance and pre-trial stage.

Contextually, Section 319, Cr. P.C., is relevant and is extracted here in below :-

"319. Power to proceed against other persons appearing to be guilty of offence- (1) Where, in the course of any enquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the enquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then-

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognisance of the offence upon which the enquiry or trial was commenced."

The aforesaid provision in Cr.P.C. gives ample authority to the Court to take cognisance and add any person, not being an accused before it and against whom ample evidence have been received to try him along with the accused already in the array and facing trial before it. The power conferred by the Code is an extraordinary power and the use of such power is subject to the evidence available before it. It can be exercised by the Court suo motu or on an application by someone including the accused before it, on satisfaction that any person other than the accused has committed any offence and needs to be tried together with the accused. Therefore the petitioner is not left without any remedy. It is for him to let in evidence during trial regarding the involvement of any other accused in the transaction alleged by him and for that purpose he could apply for summoning any particulars.

Contextually, it is important to extract the dictum in Joginder Singh v. State of Punjab (1979) 1 SCC 345 : (AIR 1979 SC 339)

"It will thus appear clear that under Section 193 read with Section 209 of the Code when a case is committed to the Court of Sessions in respect of an offence the Court of Sessions takes cognisance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under Section 319(1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial."

The ambit of Section 319, Cr. P.C. has been reiterated by the Apex Court in Sohan Lal v. State of Rajasthan, (1990) 4 SCC 580 : (AIR 1990 SC 2158) in the following manner:-

"This Section empowers the Court to proceed against persons not being the accused appearing to be guilty of offence. Ss. (1) and (2) of this section provide for a situation when a Court hearing a case against certain accused person finds from the evidence that some person or persons, other than the accused before it is or are also connected in this very offence or any connected offence; and it empowers the Court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the purpose. It provides that the cognisance against newly added accused is deemed to have been taken in the same manner in which cognisance was first taken of the offence against the earlier accused. It naturally deals with a matter arising from the course of the proceeding already initiated. The scope of the section is wide enough to include cases instituted on private complaint."

Therefore, Section 319, Cr. P.C. deals with a situation, when the complicity comes to light from the evidence taken and recorded in the course of an enquiry or trial. Since the enquiry stage is over, it is now turn, for the trial to bring in evidence about the complicity of the person sought to be arrayed as accused. In the circumstances, there is no scope for interference with the order under challenge. There is scope for the petitioner to bring in trial evidence regarding the complicity of the driver and the owner and thereby to invoke the power of the Court under Section 319, Cr. P.C. to get them im-pleaded as accused and to continue with the trial against them in the very same proceedings.

In the result, Cri.M.C. is dismissed.