RAMAN NARAYANAN Vs. STATE

JUDGEMENT

(1.) The question that arises for determination in these criminal references is whether the trial Magistrate has the right to dispense with the presence of a person and remove him from party array if it is conclusively established that he is not an accused person charged with any offence in the case under enquiry or trial.

(2.) These references came before us on account of an order of a learned single judge of this court under S.3 of the Kerala High Court Act, 1958. The District Magistrate (Judl.), Tellicherry referred these cases under S.438 Cr. PC. to this court to pass an order in accordance with law setting aside the order of the Sub Magistrate, Cannanore passed on 30-11-1971 in C. C. 984/1971 and C. C. 985/1971.

(3.) On the strength of a First Information statement of one Assan and Kundan two separate crimes were registered at the police station, Payangadi on 25 5 1970. There were 7 accused persons in the first crime and 5 in the other in each of which the offences alleged to have been committed were under S.143, 147 and 323 read with S.149 of the Penal Code. After investigation, a report under S.170 Cr. P. C. and final report under S.173 Cr. P. C. had been filed before the Sub Magistrate by the Sub Inspector, Payangadi in each of these cases when the Magistrate took these cases to file in C. C. 984/71 and C.C. 985/71 and took cognizance of the offences on sending summons to the accused persons in each of these cases. When they appeared before the Magistrate on 30-10-1971, they had been supplied with all the documents which the prosecution wanted to rely upon in the prosecution of the case against them. From 30-10-1971 to 30-11-1971 these cases underwent few adjournments during which time both the Magistrate, the accused persons, the Counsel who appeared for them and even the Sub Inspector who laid the charge against the accused persons realised that the 5th accused described as Narayanan, son of Raman Peruvannan was not the real accused and that his name was wrongly entered in the police charge. The real 5th accused according to them was one Narayanan, son of Naniyil Raman. The Sub. Inspector had also filed a report before the Magistrate on 24-11-1971 that summons was wrongly issued to Narayanan, son of Raman Peruvannan instead of Narayanan, son of Naniyil Raman and therefore he submitted that fresh summons had to be issued to the latter person. He had also expressed his regret for entering a wrong name in the charge sheet which he laid before the court. On receipt of this report and on correct understanding of the identity of the accused person the learned Sub Magistrate passed the following order on 30-11-1971 in each of these cases: --