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2001 DIGILAW 573 (MAD)

Santhamma v. Rahmath

2001-05-21

T.M.HASSAN PILLAI

body2001
ORDER: The revision petitioners challenge the legality and propriety of the order passed by the learned Judicial First Class Magistrate II, Kollam under Sec.319 of the Crl.P.C., directing them to be arraigned as accused persons in a case being tried before them for offences punishable under Secs.451, 427 read with Sec.34, I.P.C. (S.T.No.1830 of 1997). On the basis of the statement of P.W.1. recorded by the Sub Inspector of Police, Kollam East, a case has been registered in Crime No.351 of 1997 on 16.4.1997 under Secs.427 and 451 read with Sec.34, I.P.C., against two persons (accused Nos.1 and 2). The allegation made in the first information statement was to the effect that P.W.1 and her family members have been residing in the house rented out to her by the first accused and the owner of the house, on several occasions, asked them to vacate that house. No house was available on rent to shift her residence. First accused in whose favour an agreement was executed made a complaint to the police for getting them evicted and they agreed to vacate the house immediately on getting another house on rent for shifting their residence. On the fateful day. i.e., on 16.4.1997, she and her family members went to the family house of her husband at Jonakappuram. When they returned in the evening at about 7 p.m. they found the lock of the house broken open and furniture and household articles kept in the house were thrown out and lying scattered outside the house. Accused persons were seen inside the house. As a result of throwing out of the furniture and other household articles she suffered damages (loss of Rs.2,000). The incident took place at about 6.p.m. on that day and was witnessed by neighbours. 2. After investigation, police laid challan, Annexure I, against the accused persons (A-1 and A-2) before the Judicial Frist Class Magistrate II, Kollam. Prosecution cited two neighbours of P.W.1 as witnesses to the occurrence and Annexure II is the statements of them recorded under Sec.161, Crl.P.C. during the course of investigation. The husband of the de facto complainant (P.W.1) filed a suit before the Munsif Court, Quilon as O.S.No.618 of 1577. Annexure III is the copy of the plaint and no allegation is made against the revision petitioners ascribing any role to them in the commission of the alleged crime. The husband of the de facto complainant (P.W.1) filed a suit before the Munsif Court, Quilon as O.S.No.618 of 1577. Annexure III is the copy of the plaint and no allegation is made against the revision petitioners ascribing any role to them in the commission of the alleged crime. In the plaint also it was alleged that the offences alleged to have been committed were committed by two named persons arraigned as accused of in the challan laid after conducting investigation. Annexure IV is the copy of the deposition of P.W.1 recorded during the course of trial by the learned Magistrate wherein she has stated that enquiries made by her revealed that the revision petitioners were also involved in the alleged commission of crime and solely based on that evidence learned Magistrate passed the impugned order impleading them as accused persons holding that revision petitioners appear to have been involved in the commission of crime along with those already sent up for trial by the prosecution. 3. Learned Additional Director General of Prosecutions in his characteristic fairness submitted that the evidence given by P.W.1 is not sufficient to implicate the revision petitioners and her evidence does not stand on a better footing than hearsay evidence. He fairly conceded that no evidence surfaced during the course of trial disclosing the complicity of the revision petitioners. There is considerable force in the submission made by learned counsel for the revision petitioners that without any legally acceptable evidence the learned Magistrate impleaded revision petitioners as accused persons. 4. Sec.319 Crl.P.C. reads as under: Sec.319. Power to proceed against other persons appearing to be guilty of offence: (1) Where, in the course of any inquiry 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 inquiry into, or trial of, the offence which he appears to have committed. (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 inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under Sub-sec.(1), then- (a) The proceedings in respect of such person shall be commenced afresh and the witness reheard. (b) Subject to the provisions of Clause (a) the case may proceed as if such person has been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. 5. The power conferred on the Court under Sec.319, Crl.P.C. is an extraordinary power and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other persons against whom action has not been taken (See: Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, 1983 S.C.C. (Crl.) 115. 6. The Apex Court in Sohan Lal v. State of Rajasthan, 1990 S.C.C. (Crl.) 850, after considering the relevant provisions of the Code concluded: "Sec.319 empowers the Court to proceed against persons not being the accused appearing to be guilty of offence. Secs.(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 cognizance against newly added accused is deemed to have been taken in the same manner in which cognizance 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." 7. There can be doubt on a plain reading of Sub-sec.(1) of Sec.319 that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. There can be doubt on a plain reading of Sub-sec.(1) of Sec.319 that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power can be exercised only if it so appears from the evidence at the trial and not otherwise. This Sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the Court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the police. 8.Stricto sensu, Sec.319 of the Code cannot be invoked in a case like the present one where no evidence has been led at the trial wherefrom it can be said that the revision petitioners appear to have been involved in the commission of the crime along with those already sent up for trial by the prosecution. 9. Sec.319 covers the postcognizance stage where in the course of an inquiry or trial the involvement or complicity of a person or persons not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. 10. The sweep of Sec.319 is limited, in that, it is an enabling provision which can be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned before it. See: Kishun Singh and others v. State of Bihar, 1993 S.C.C. (Crl.) 470. 11. As rightly submitted by the learned Additional Director General of Prosecutions and learned counsel for the revision petitioners that no compelling reasons exist for the learned Magistrate for taking cognizance against the revision petitioners against whom action has not been taken and P.W.1’s evidence to the effect that enquiries made by her disclosed involvement of revision petitioners does not stand on a better footing than hearsay evidence. Her testimony clearly reveals that she has no direct knowledge regarding the involvement of revision petitioners. Her testimony clearly reveals that she has no direct knowledge regarding the involvement of revision petitioners. I am not relying on the fact that no role was ascribed to revision petitioners in the alleged commission of crime either in the first information statement or in the statements recorded under Sec.161, Crl.P.C. of the two witnesses cited as witnesses to the occurrence on the ground that that aspect clearly falls within the domain of appreciation of evidence to be done finally at the end of trial before pronouncing upon the guilt or otherwise of the concerned accused. No evidence surfaced which necessitated exercise of discretionary power conferred under Sec.319, Crl.P.C. to conclude prima facie that the revision petitioners who are not arraigned before the Magistrate Court are also involved in the commission of offence. 12. Hence, the revision is allowed setting aside the impugned order passed by the learned Magistrate.