MUBARAK Vs. STATE OF KERALA

JUDGEMENT

(1.) While giving evidence as PW 1 in C.C. No. 100/1999 on the file of the Judicial First Class Magistrate Court, Ponnani, one Aboobacker deposed in examination in chief that the motor bike bearing Engine No. 325089 and chassis No. 5B 325089 (valued Rs. 30,000/-) was stolen after 8 p.m. on 23.1.1999 and when he went on 10th February, 1999 to Amala Hospital, Thrissur for seeing a patient, a close relative of that patient told him that he saw one Mubarak, who has been arraigned as an accused after trial started by the learned Magistrate under S.319 Cr.P.C. on allowing an application filed by the Assistant Public Prosecutor has been undergoing treatment at that hospital for the injury sustained by him in a motor accident. PW 1 visited Mubarak, who was undergoing treatment as an indoor patient and the said Mubarak told him that the injuries were sustained by him while he was riding a motorcycle and that he sustained injuries as a result of hitting of motor cycle on a bus. When PW 1 asked Mubarak whether any motorcycle was owned by him, he made a clean breast saying that the motor cycle belonging to the brother of PW 1 was stolen jointly by Mubarak, Muhammed @ Shaji and Sainudheen. PW 1 deposed that guilty conscience made Mubarak to make the confession. It is also his evidence that Mubarak confessed that they have changed the number, silencer and handle to conceal the identity of the motor cycle. PW 1 asserted that he had informed about the making of confession by Mubarak to the investigation officer and it is his evidence that the investigation officer asked him not to disclose the fact to anyone and promised to make investigation.

(2.) Before examination in chief of PW 1 was completed, the Assistant Public Prosecutor who conducted the prosecution filed an application under S.319 Cr.P.C. for arraigning Mubarak as an accused and that application was allowed by the learned Magistrate arraigning petitioner as an accused.

(3.) Learned counsel for the petitioner submitted that the power under S.319 Cr.P.C. is an extraordinary power and should be used very sparingly. Counsel relied on the decision of the Supreme Court in Michael Machado v. C.B.I. (2000 SCC (Cri.) 609) to contend that no material is available to arraign the petitioner as an accused invoking the powers under S.319 Cr.P.C. There cannot be any quarrel with the proposition that the power under S.319 Cr.P.C. has to be exercised sparingly. Learned counsel also contended before me that extrajudicial confession is a weak piece of evidence and the Trial Court ought not have relied on that weak piece of evidence to exercise its powers under S.319 Cr.P.C. Counsel also submitted that there is no reliable evidence to prove that the confession made was voluntary and true and the facts admitted in the confessional statement are true.