Vasudevan Nair vs State of Kerala

K. Padmanabhan Nair, J.—The accused in C.C.379 of 1993 on the file of Judicial First Class Magistrate-II, Pathanamthitta is the revision petitioner.

This Criminal Revision Petition is filed challenging an order passed by the learned Magistrate dismissing a petition filed by the petitioner to implead C.W.2-- Govinda Kurup- also as an accused.

The brief facts necessary for the disposal of the Revision Petition are as follows: On 4.12.1986, the first accused started a time deposit account in the Post Office of Vallikodu, Kottayam. He deposited an amount of Rs. 25,000/-. Subsequently, the second accused, who is the son of the first accused, withdrew the amount with interest producing an authorisation letter stated to have been signed by the first accused. At the relevant time, the revision petitioner was the post master. The allegation against the petitioner (A3) was that he released the amount without making proper entries in the registers. The further prosecution case is that suppressing the factum of withdrawal, the first accused again filed an application for withdrawing the amount with intention to cheat the Government and to make illegal gains to him. That request for withdrawal was allowed by C.W.2 Govinda Kurup and the first accused also withdrew Rs. 25,000/- and caused loss to the Government to that extent.

Based on a complaint given by the competent officer, the police registered a case and investigated the same and filed a final report arraigning Al to A3 as accused. After the examination of PW.l, the petitioner, who is the third accused in this case, filed a petition u/s 319 of the Code of Criminal Procedure to arraign C.W.2 Govinda Kurup as 4th accused. The learned Magistrate dismissed that application holding that the accused has no locus standi to file an application u/s 319 of the Code of Criminal Procedure. This Criminal Revision Petition is filed challenging that order.

The learned counsel appearing for the revision petitioner has argued that the finding of the learned Magistrate that an accused in a criminal case has no locus standi to file a petition u/s 319 of the Code of Criminal Procedure is illegal. It is argued that the power is vested in the Court to make any person as an accused in case there are sufficient materials to show that such person could also be tried along with the accused already on record. It is argued that by filing a petition, the petitioner has only reminded the Court its duty to invoke the power vested in it u/s 319 of the Code of Criminal Procedure. It is argued that the learned Magistrate ought to have considered whether there is any evidence to show that CW.2 could also be tried along with accused 1 to 3 in this case.

Section 319(1) reads as follows:--

"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".

S. 319(1) of the Code deals with the power of the Court to proceed against any person to be guilty of an offence. Section 319(1) of the Code of Criminal Procedure provides that if in course of any enquiry in to, or trial of, an offence, it appears from the evidence that such person not being the accused has committed any offence which he could be tried together with the accused the Court may proceed against him. A readings of Section 319(1) shows that the power under this Section can be exercised by the Court suo motu or on application of any person. In fact the Section does not contemplate an application at all by the prosecution. This is a discretionary power conferred on the Court. But that discretion must be exercised judicially having regard to the facts and circumstances of each case. A reading of Section 319 of the Code of Criminal Procedure shows that no special right is given to the prosecution. An application can be filed by any person including the accused already before Court. The de facto complainant or an independent witness who had witnessed the incident can also move the Court. That application is actually a reminder to the Court so as to enable the Court to exercise the powers conferred on it. If there is evidence to show that any person other than the accused already arraigned in the case has committed any offence for which he can be tried together with the accused, the Court can proceed against him also.

In Michael Machado and Another Vs. Central Bureau of Investigation and Another, , the Apex Court held that evidence should indicate reasonable prospect of conviction of such other person(s). It was further held that mere suspicion of his/their involvement in the offence is not enough. It was also held that the power of the Court is discretionary in nature. In Krishnappa v. State of Karnataka 2004 (3) KLT 460 , the Apex Court held as follows:-

"The power is discretionary and should be exercised only to achieve criminal justice and that the Court should not turn against another person when ever it comes across evidence connecting that other person also with the offence. This Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. The Court, while examining an application u/s 319 Cr.P.C, has also to bear in mind that there is no compelling duty on the Court to proceed against other persons. In nut shell, it means that, the exercise of discretion u/s 319 Cr.P.C, all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused".

The view taken by the learned Magistrate that the accused no locus standi to file such a petition is not correct. A reading of the provisions of S .319 clearly shows that such a petition can be filed not only by the prosecution, but also by the de facto complainant, a witness or even the accused. The power u/s 319 is an extra ordinary power which is conferred on the Court. That power shall be exercised only if compelling reasons exist for taking cognizance against the person against whom action has not been taken. If after taking evidence the learned Magistrate finds that any other person other than the three accused now arraigned as accused is also to be tried along with the accused, it is open to him to pass appropriate orders u/s 319(1) of Code of Criminal Procedure.

With that observation, this Criminal Revision Petition is dismissed.