SOYI Vs. STATE OF KERALA

JUDGEMENT

(1.) Additional second accused who was impleaded by learned Judicial First Class Magistrate invoking power under Section 319 of Cr.P.C. has filed the revision. The controversy to be resolved are (1) whether the learned Magistrate is entitled to amend or alter the charge and thereafter invoking power under Section 319 is competent to implead a person as an accused and (2) whether the accused so impleaded is entitled to apply for discharge before the learned Magistrate.

(2.) Learned Magistrate has taken cognizance of the offences under Sections 326 and 324 of I.P.C. The sole accused was facing trial. Charge was framed for the said offences. Prosecution case is that accused after hiring autorickshaw of de facto complainant/second respondent with three others reached near building No. IX/7 of Veliliyamattom Panchayat at about 9 p.m. on 25-6-2003, pulled the second respondent out of the autorickshaw and inflicted injuries with a stone and committed offences under Sections 326 and 324 of I.P.C. Second respondent was examined in part. In the course of evidence of P.W.1, it was brought out that one week prior to the incident P.W. 1 had an altercation with petitioner in a toddy shop and P.W. 1 was assaulted and the incident of 25-6-2003 was an offshoot of that incident and two days prior to the incident P.W. 1 was shown by the toddy shop contractor to others. The specific case of P.W. 1 was that attack on him on the date of incident was at the instance of petitioner, contractor of the shop. It was also shown to the learned Magistrate that in Ext. P-1 F.I. Statement these facts were specifically stated by P.W. 1 and offence under Section 34 of I.P.C. was also alleged. But after investigation Section 34 was deleted. Learned Magistrate on that evidence was satisfied that the charge was not properly framed and therefore altered the charge incorporating offence under Section 107 of I.P.C. as well as Section 34. Learned Magistrate has also invoked his powers under Section 319 of Cr.P.C. and impleaded the petitioner as additional accused and issued summons to him which is challenged in the revision.

(3.) Argument of the learned Counsel appearing for petitioner is that learned Magistrate is not entitled to invoke the power under Section 319 of Cr.P.C. for an offence for which the sole accused was not being tried and by altering the charge, petitioner cannot be impleaded as additional accused and order is illegal and is to be set aside. Learned Counsel would also argue that in any event as the petitioner is impleaded under Section 319 of Cr.P.C. he is entitled to claim discharge which cannot be denied to him. Learned Public Prosecutor argued that before the petitioner was impleaded as additional accused, learned Magistrate has altered the charge and there is no prohibition for invoking the power under Section 319 of Cr.P.C. and therefore the revision is only to be dismissed.