{"id":95090,"date":"1999-02-09T00:00:00","date_gmt":"1999-02-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/murali-alias-muraleedharan-vs-state-of-kerala-on-9-february-1999"},"modified":"2015-05-21T11:24:30","modified_gmt":"2015-05-21T05:54:30","slug":"murali-alias-muraleedharan-vs-state-of-kerala-on-9-february-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/murali-alias-muraleedharan-vs-state-of-kerala-on-9-february-1999","title":{"rendered":"Murali Alias Muraleedharan vs State Of Kerala on 9 February, 1999"},"content":{"rendered":"
Kerala High Court<\/div>\n
Murali Alias Muraleedharan vs State Of Kerala on 9 February, 1999<\/div>\n
Equivalent citations: 1999 CriLJ 1670<\/div>\n
Author: K M Shafi<\/div>\n
Bench: K M Shafi<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
K.A. Mohamed Shafi, J.<\/p>\n
1. This Crl. M.C. is filed by the 5th accused in C.C. No. 786\/91 which is pending as L. P. Case No. 35\/95 on the file of the Judicial First Class Magistrate’s Court, Adoor to set aside the order dated 9-12-1994 passed by the Magistrate under Section 319 of the Cr. P.C. arraying him as the 5th accused in this case.\n<\/p>\n
2. C.C. 786\/91 was taken on file by the Judicial First Class Magistrate’s Court, Adoor on the basis of the charge-sheet laid by the S.I. of Police, Pandalam in Crime No. 199\/91. Though in that F.I.R. registered by the Pandelam police on the basis of the F.I. Statement lodged by one Medanan the petitioner was arrayed as 1st accused, after investigation charge is laid by the investigating officer only against four accused persons excluding the petitioner herein.\n<\/p>\n
3. After the evidence in the case was recorded and the case was posted for judgment after hearing the arguments advanced by the parties, the learned Magistrate re-opened the case and the petitioner who was named as 1st accused in the  was arrayed as 5th accused under Section 319 of Cr. P.C. by order dated 9-12-1994. That order is under challenge in this Crl.M.C. filed under Section 482 of the Cr. P.C.\n<\/p>\n
4. Several contentions are raised by the petitioner against the validity and sustainability of the order passed by the learned Magistrate arraying him as 5th accused in this case. The first contention raised is that though the learned Magistrate is bound to add the accused under Section 319 of the Cr. P.C. at the earliest stage and without any delay, in this case the learned Magistrate after completing the prosecution evidence on 17-10-1994, recording the statement of the accused under Section 313, Cr. P.C. on 25-10-1994, hearing the arguments on 10-11-1994 and posting the case for orders on 24-11-1994, has added the petitioner as 5th accused by order dated 9-12-1994, after adjourning the case for judgment to 24-11-94, 30-11-94 and 9-12-94 as the judgment was not ready. Therefore, according to the petitioner, his very implication in this case at the very belated stage is vitiated. Section 319 of the Cr. P.C. reads as follows :\n<\/p>\n
319. Power to proceed against other persons appearing to be guilty of offence.-\n<\/p>\n
(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.\n<\/p>\n
(2) Where such person is not attending the Court, he may be arrested or sumoned, as the circumstances of the case may require, for the purpose aforesaid.\n<\/p>\n
(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.\n<\/p>\n
(4) Where the Court proceeds against any person under Sub-section (1), then-\n<\/p>\n
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard :\n<\/p>\n
(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 cognizance of the offence upon which the inquiry or trial was commenced.\n<\/p>\n
5. Therefore, it is clear from Sub-section (1) of Section 319 that if it appears from the evidence that any person not being He accused in the case has committed an offence for which he should be tried together with the accused already standing trial in the course of any inquiry into or trial of an offence, the Court is competent to add that person as an accused at any stage of inquiry or trial before the order or judgment is pronounced. The Court which has already taken cognizance of the offence is only empowered to add the person not being the accused in the case as an accused in the case if it appears in evidence that he has committed an offence for which he should be tried along with the other accused already standing trial. Even though it is desirable for the Court to add such person as accused under Section 319, Cr. P.C. at the earliest point of time and it is the appropriate stage to add such person as accused in the case, the order passed by the Court at a belated stage of the trial or inquiry cannot be characterised as illegal on the ground of belatedness. It is true that in this case the learned Magistrate could have added the petitioner as accused much earlier than 9-12-1994 since the entire prosecution evidence was closed on 17-10-1994. But due to the mere fact that the Magistrate applied his mind with regard to the complicity of the petitioner in the crime and his addition as an accused in this case at a later point of time, it cannot be held that the order passed by the learned Magistrate in this case adding the petitioner as an accused is vitiated. Therefore  this contention raised by the revision petitioner is  not sustainable.\n<\/p>\n
6. The next contention raised by the petitioner is that the extraordinary power conferred upon the Court under Section 319 of the Cr. P.C. to take cognizance of the offence against any person against whom cognizance is not taken, should be exercised very sparingly and only if compelling reasons exist to take cognizance of the offence against him. Therefore, according to him, a speaking order with reasons to add him as an accused in the case should be passed by the Court. The order passed under Section 319 of the Cr. P.C. adding any person who is not already an accused in the case, as an accused is revisable. Therefore it is argued that the person so implicated is entitled to know the extraordinary circumstances that weighed with the Court to array him as an accused in the case. The counsel for the petitioner also argued that it is only if a reasoned order is passed by the Court, the person so implicated and the revisional Court can verify and understand about the extraordinary and exceptional circumstances which compelled or weighed with the Judicial mind to take cognizance of the offence against that person. Therefore, according to him, a reasoned speaking order is imperative while adding a person as accused under Section 319 of the Cr. P.C.\n<\/p>\n
7. It is well settled that the extraordinary power conferred upon the Court should be exercised very sparingly and only if compelling reasons existed for taking cognizance of the offence against a person against whom cognizance was not taken in the case. In the decision in Municipal Corporation of Delhi v. Ram Kishan Rohtagi<\/a> (1983) 1 SCC 1 : 1983 Cri LJ 159 the Supreme Court has observed as follows (at page 163; of Cri LJ):\n<\/p>\n
 19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfied the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.\n<\/p>\n
8. Following the above judgment of the Supreme Court a Division Bench of this Court in the decision in Gangadharan v. S.I. of Police 1989 (2) KLT 448 has observed as follows :\n<\/p>\n
 8. The power under Section 319, Cri. P.C. has to be very sparingly used. It can only be invoked for really compelling reasons. In Municipal Corporation of Delhi v. Ram Kiran Rohtaji<\/a> 1983 (1) SCC 1 : 1983 Cri LJ 159 it has been held that Section 319, Cri. P.C. is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against whom action has not been taken.\n<\/p>\n
9. It is clear from the provisions of Section 319(1) of the Cr. P.C. that there is no express stipulation that there should be a speaking or considered order while a person who is not an accused in a case is added as an accused by invoking that provision of the Cr.P.C. But it is clear from the provision that the Court should be satisfied from the evidence that is brought before it that such person appears to have committed any offence for which he should be tried along with the other accused already in the party array. The evidence contemplated under Section 319(1) includes documentary and oral evidence adduced before the Court as well as the materials collected during the investigation and proved as evidence during the inquiry or trial. Therefore, the Public Proseutor submitted that the satisfaction of the Court contemplated under Section 319(1) of the Cr. P.C. is the subjective satisfaction on the basis of the entire evidence on record and therefore the order passed by the Court adding a person not in the party array as an accused, need not be by a considered or speaking order. According to him, no hardship or prejudice will be caused to a person added as an accused in the case during the inquiry or trial who is not in the party array, since the entire materials and evidence on record which weighed with the Court to implicate him in the case are available to anybody including the person so implicated and the revisional Court, if that order is challenged in revision.\n<\/p>\n
10. Though the provisions of Section 319(1) of the Cr.P.C. do not in terms mandate the passing of a considered or speaking order while adding a person not being the accused in the case as an accused during the inquiry or trial, that power of the Court has to be exercised very sparingly and if only compelling reasons exist for taking cognizance against that person against whom cognizance has not been taken after satisfying the judicial mind that taking cognizance against that person in the case is necessary. Therefore, it will be appropriate and profitable in such cases to such person against whom cognizance is taken, the Court taking cognizance as well as the revisional Court to pass a considered and speaking order while adding a person as an accused who is not implicated in the case as an accused, by invoking the provisions of Section 319(1) of the Cr. P.C. But the contention of the petitioner that the failure of the Court to pass a reasoned or speaking order while adding a person who is not an accused, as an accused by invoking the provisions of Section 319 of the Cr.P.C. is illegal or vitiated, cannot be sustained since neither the provisions of Section 319(1) nor any other provision of the Cr.P.C. mandates that a considered or speaking order should be passed by the Court while adding a person who is not implicated in the case, as an accused during the course of inquiry or trial of the case. Therefore, this contention of the petitioner that the order passed by the learned Magistrate under Section 319(1) of the Cr. P.C. adding him as an accused in this case is illegal or vitiated for want of a reasoned order is not sustainable.\n<\/p>\n
11. The petitioner has contended that the learned Magistrate committed a manifest error in not trying the case against him along with the other accused after adding him as an accused in this case. It is seen from the certified copy of the order sheet of the Magistrate’s Court produced in this case that after reopening the evidence and arraying the petitioner as 5th accused in the case on 9-12-94 under Section 319, Cr.P.C. the learned Magistrate issued N.B.W against the petitioner and posted the case to 20-12-94. On 20-12-94 the petitioner was absent and the N.B.W. issued against him was returned unexecuted stating that his whereabouts are not known. Therefore, the learned Magistrate split up the case against the petitioner and posted the case for orders to 30-12-94. Again the case was posted to 31-12-94. On 31 -12-94 the case against the petitioner was split up and refiled as C.C. 499\/94 and pronounced judgment in the case against the other accused by finding the guilty, convicting and sentencing them.\n<\/p>\n
12. It is settled law that after taking cognizance of the offence against a person who is not in the party array as accused under Section 319 of Cr. P.C. he becomes an accused in the very same case in which the order is made adding him as an accused. What is required under law is a de novo trial in the very same case or proceeding. It is not the object of the law that the person so added as an accused under Section 319 of the Cr.P.C. should have a separate trial from the one in which the order against him is passed adding him as an accused. In the decision in State v. Lekh Raj AIR 1967 Punjab 35 : 1967 Cri LJ 248 the Punjab High Court has laid down the above principles.\n<\/p>\n
13. In the decision in Joginder Singh v. State of Punjab AIR 1979 SC 339 : 1979 Cri LJ 333 the Supreme Court has observed as follows (at page 335 of Cri LJ):\n<\/p>\n
 4. The real question centres around the scope and ambit of Section 319 of the Code of Criminal Procedure 1973, under which a power has been conferred upon a criminal Court to add a person, not being the accused before it and against whom during the trial evidence comes forth showing his involvement in the offence, as an accused and try him along with those that are being tried and the question is whether a Sessions Court can add such a person as an accused in the absence of any committal order having been passed against him.\n<\/p>\n
14. In the decision in Annamma Cherian v. State of Kerala 1988 (2) KLT 259 this Court has held that after adding a person who was originally not in the party array under Section 319(1) of the, Cr.P.C. and reading the evidence already recorded to him and allowing him to cross-examine those witnesses, is invalid since the evidence in the trial cannot be used against a person who was not an accused when such evidence was recorded and directed the Court to conduct a de novo trial with that accused alone in the party array.\n<\/p>\n
15. Therefore, it is clear that after adding a person who is not an accused in a case, as accused under Section 319(1) of the Cr. P.C. he should be tried along with the other accused in the very same case. But the trial against him should be de novo and no separate trial against the accused so added is contemplated under law.\n<\/p>\n
16. In this case it has to be noted that even though the learned Magistrate attempted to secure the presence of the petitioner in Court even by resorting to coercive steps by issuing N.B.W. against him, it did not succeed and therefore, the learned Magistrate had no other alternative but to split up his case, refile and proceed against the other accused. Therefore, the contention of the petitioner that the order passed by the learned Magistrate against him to stand separate trial is illegal or cruel, is absolutely untenable. Had the petitioner appeared before the Court on his adding as an accused in the case, the learned Magistrate could have proceeded with the de novo trial as far as the petitioner is concerned in the very same case. Therefore due to the non-appearance in Court when he was added as an accused in the case, the learned Magistrate was forced to split up the case against the petitioner, to refile the same and proceed against the other accused already on record. Under the circumstances the order passed by the learned Magistrate splitting up the case against the petitioner, refiling the same and directing the petitioner to stand trial separately from the other accused already in the party array, is perfectly justified and cannot be characterised as illegal or improper.\n<\/p>\n
17. On the basis of what is stated above I find the impugned order passed by the learned Magistrate is perfectly justified and no interference is called for in this case. Therefore, the Crl. M.C. is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Murali Alias Muraleedharan vs State Of Kerala on 9 February, 1999 Equivalent citations: 1999 CriLJ 1670 Author: K M Shafi Bench: K M Shafi ORDER K.A. Mohamed Shafi, J. 1. This Crl. M.C. is filed by the 5th accused in C.C. No. 786\/91 which is pending as L. P. Case No. 35\/95 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-95090","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMurali Alias Muraleedharan vs State Of Kerala on 9 February, 1999 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/murali-alias-muraleedharan-vs-state-of-kerala-on-9-february-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Murali Alias Muraleedharan vs State Of Kerala on 9 February, 1999 - 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