LAWS(KER)-2018-2-802

VIJAYACHANDRASENAN, S/O. SANKARAPILLA Vs. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AND ANR.

Decided On February 22, 2018
Vijayachandrasenan, S/O. Sankarapilla Appellant
V/S
State Of Kerala Rep. By The Public Prosecutor, High Court Of Kerala And Anr. Respondents

JUDGEMENT

(1.) The revision petitioner herein stands added as the 3rd accused in C.C. No. 218/2005 of the Judicial First Class Magistrate Court - II (Forest Offences), Punalur under Section 319 Cr.P.C., 1973. The accused Nos.1 and 2 are his sons. The additional 3rd respondent herein is the de facto complainant in the said case. His complaint was forwarded for investigation under Section 156(3) Cr.P.C., 1973 to the police by the learned Magistrate. In the complaint, he has implicated three persons, including the revision petitioner. After investigation, the police submitted final report against the accused Nos.1 and 2. The police found that there is no material to prosecute the father of the accused Nos.1 and 2. The de facto complainant filed a protest complaint against the final report as Crl.M.P. No. 10495/2005. After hearing both sides, the learned Magistrate dismissed the complaint. The said order was challenged by the de facto complainant before the Court of Session, Kollam in Crl.R.P. No. 32/2005. The learned Sessions Judge confirmed the order of the court below on the finding that there is no material to prosecute the father of the accused Nos.1 and 2. Thereafter, the case came up for trial, and the trial court examined the complainant as PW1. In his evidence, he implicated the 3rd accused also. Acting upon his evidence, the learned Magistrate invoked the powers under Section 319 Cr.P.C., 1973 and added the revision petitioner as the 3rd accused by order dated 16.11.2010. The said order is under challenge in this revision.

(2.) The short point for consideration is whether there is any material to proceed against the revision petitioner, or to bring him as additional accused under Section 319 Cr.P.C., 1973. The complaint filed by the de facto complainant, forming the basis of the prosecution, is very material in this case. On a perusal of the complaint, I find that the complainant's grievance or allegation is that the accused Nos.1 and 2 sold a property to him by suppressing some material facts concerning the property. The sale was made in 2001. Much later, the complainant could realise that the accused Nos.1 and 2 in fact sold the property without any title over it. It is pertinent to note that by the time, a fraction was assigned by the complainant and mutation was also effected. It is not known, how mutation happened to be effected, if the original seller had no title over the property.

(3.) On a perusal of the complaint made by the de facto complainant, I find no material against the father of the accused Nos.1 and 2. The only allegation is that the proposal for sale was initially made by him. Thereafter, the details of the property were furnished by the accused Nos.1 and 2, and the documents were perused and verified by the complainant. It must be the duty of the seller to reveal everything concerning the property to the purchaser, and it must be the concern of the purchaser to verify all documents before purchase. There is absolutely no allegation in the complaint that the alleged deceitful sale made by the accused Nos.1 and 2 was in any manner abetted by their father, or that the accused Nos.1 and 2 sold the property to the complainant without having title over it, as part of a conspiracy hatched by them with their father. To bring him as accused under Section 319 Cr.P.C., 1973 there must be some material, or some definite allegation implicating him as a party to the offence allegedly committed by the other accused. Of course, it is true that the court can invoke the powers under Section 319 Cr.P.C., 1973 if it appears to the court from the evidence during trial that any other person has also committed the offence, and he also could be tried along with the accused facing trial. For invoking such powers, there must be definite material showing the complicity or involvement of the said person sought to be added.