JAYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner proceeded as an additional accused (A3) in a pending case by the Magistrate under S. 319 of the Code of Criminal Procedure (for short "the Code"), has filed the above petition to quash Annexure 2 order so passed as an abuse of the process of the court, invoking the inherent powers of this court under S. 482 of the Code. Short facts necessary for disposal of the case can be summed up thus:

(2.) The main thrust of challenge canvassed by the learned counsel to assail Annexure 2 order is that the Magistrate has invoked the powers under S. 319 of the Code to add the petitioner as an accused solely on the basis of evidence recorded in examination-in-chief of the de facto complainant/PW1 alone without waiting for her statements tested in cross-examination. Adverting to the scope and ambit of S. 319 of the Code and also under what circumstance it can be invoked of, the learned counsel for the petitioner contended that since an order for addition of an accused could be made only on the basis of evidence, to ensure that there is no abuse of that provision, primary satisfaction to add a person already not proceeded with as a co-accused demands scrutiny of such evidence after being subjected to cross-examination. Solely on the basis of the examination-in-chief of a witness, it is not proper and appropriate to invoke S. 319 of the Code to add a new accused in the crime especially where cognizance of offence against other accused persons named has been taken on a police report laid after a full-fledged investigation of the crime, is the submission of the counsel.

(3.) Section 319 of the Code is an enabling provision which empowers the court to proceed against person/s not appearing before it, but from the evidence tendered in the case appear to be guilty of one or other offence imputed, or of any other offence, in such case. That Section of the Code reads thus: