PAPPU BHASKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The injured Pappu Bhaskaran witness No. 1 in the charge, has come up in revision against the order of the learned Sub Magistrate, Chengannur disallowing his prayer for including two more persons in the charge. The charge was filed by the police on 1.3.69 under S.324 read with S.34 I.P.C. against two persons, Yohannan Mathai and Kocheera Ramankutty. On the police report the offence was taken cognisance of by the Magistrate and summons was also ordered on 1.3.69 itself. On 25.3.69 the learned Magistrate framed charges against the accused and the case was then posted to 1.4.69 for prosecution evidence. On 1.4.69 no witnesses were present and so the case was adjourned to 8.4.69. On that day also no witnesses were present and the case was therefore adjourned to 17-4-69. From that date it was adjourned to 28.4.69. On that day also no witnesses were present. The case was then adjourned to 6.5.69. On that day charge witnesses 1 to 3 were present. The injured Pappu Bhaskaran, charge witness No. 1, filed an application to include two more persons in the array of the accused stating that they were purposely omitted from the charge by the police. That application was dismissed by the learned Magistrate and it is from that order that this revision is preferred.

(2.) The question is whether the Magistrate has jurisdiction to include in the charge, persons not sent up by the police and if so whether the Magistrate has exercised his discretion properly in the present case. It has to be remembered at the outset that the persons sought to be included are not persons mentioned in the F. I. statement. The statement in the petition that two of the accused have purposely been excluded cWvSp {]XnIsf Hgnhm¡nbpw kXymhkvXIÄ ad¨ph¨pw is not correct. In the F. I. statement, only one of the assailants viz., Mathai was mentioned by name. The injured had also stated that he was beaten by Mathai's brother inlaw (no name was given) and also by two other persons who could be identified by sight only. On this statement the police investigated and found that Mathai and one Kocheera Ramankutty were the assailants and the charge was accordingly laid against them. Now the complainant wants to include in the array of the accused two more persons, viz., one Kunjumon and Abraham saying that these two persons have been dropped from the charge by the police with malicious motive. I have already stated that these two persons were not implicated in the F. I. statement. Could the Magistrate in the circumstances direct the police to file a supplementary charge implicating those two persons Or is it possible for the Magistrate to include them in the array of the accused on the application of the complainant I do not think the Magistrate is competent to do either. The Supreme Court has held in Roopachand Lal v. State of Bihar ( AIR 1968 SC 117 ) that: