K K JAYACHANRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) An order passed by the learned 4th Additional Sessions Judge, Thodupuzha on Crl.M.P.No.3178/2016 in S.C.No.68 of 2016 is under challenge in these proceedings. The prosecution in the said case is being conducted by a Special Public Prosecutor appointed by the Government. Cognizance originally was taken in the Court of Session against four accused. The Special Public Prosecutor made the said application to "implead" three more persons as additional accused, and he made the request under Sections 193 and 226 of the Code of Criminal Procedure(Cr.P.C.). The said application was heard by the learned trial Judge along with other applications filed by the accused for discharge. By the common order dated 24.12.2016, the learned trial Judge allowed the request of the learned Special Public Prosecutor, and accordingly "impleaded" three persons as additional accused Nos.5 to 7 in the case. The persons added as accused Nos.5 and 6 have brought Crl.R.P.No.17 of 2017, and the petitioner in Crl.M.C.No.3789 of 2019 is the wife of the additional accused No.6 who died after the filing of the revision. Ofcourse, the son of the deceased 6 th accused is a party in Crl.R.P.No.17 of 2017 as the additional third respondent. However, the wife of the deceased brought a separate application as Crl.M.C.No.3789 of 2019. In fact Crl.M.C.No.3789 of 2019 is liable to be closed because, the charge against the additional 6 th accused already stands abated on death.

(2.) The order of the trial court is being challenged by the supplemental accused on the important legal ground that persons cannot be added as accused under Section 193 Cr.P.C., and that such a procedure is possible only under Section 319 Cr.P.C. The case of the revision petitioners is that instead of waiting for the right stage under Section 319 Cr.P.C., the trial court illegally acted under Section 193 Cr.P.C. Ofcourse, it is true that the persons added as accused are not the accused in the final report. They are not the accused in the FIR.also. It appears that on the basis of the some stray statements given by some witnesses under Section 161 Cr.P.C., the Special Public Prosecutor made application under Section 193 Cr.P.C., and the learned trial Judge allowed the request in view of the decision of the Honourable Supreme Court in Dharam Pal and others v.State of Haryana and another, 2014 3 SCC 306].

(3.) The legal question for resolution in the revision petition is whether persons can be added as accused in a sessions case under Section 193 Cr.P.C. after the stage of cognizance is over, or whether such a process of "impleading", as is done in civil cases, is possible under Section 193 Cr.P.C. Ofcourse, it is well settled that at the time of acting upon the final report, or at the time of taking cognizance on the basis of the final report received in the Court of Session on committal under Section 209 Cr.P.C., the Court of Session can issue summons even to those persons who are not sent up for trial by the prosecuting agency, provided the final report and the supporting documents contain some material as against them also for a prosecution. In this case, the stage under Section 319 Cr.P.C. is yet to come.