Kerala High Court
Rajendra Prasad vs State Of Kerala on 25 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945
OP(CRL.) NO. 421 OF 2023
AGAINST CMP NO.4674/2022 IN CC 810/2019 OF JUDICIAL
MAGISTRATE OF FIRST CLASS-I, HARIPAD
PETITIONER/ADDITIONAL ACCUSED ADDED U/S.319 OF Cr.P.C:
RAJENDRA PRASAD
AGED 57 YEARS, S/O. MADHAVAN,
MADHAVA KRIPA
MUTHUKULAM VADAKKUMURI
MUTHUKULAM VILLAGE,
ALAPPUZHA, PIN - 690506
BY ADVS.
SRI.B.RENJITHKUMAR
SRI.K.RAMAKUMAR (SR.)
RESPONDENTS/STATE/PETITIONERS 1 & 2 AND RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 K.B.JAYAPRAKASH
AGED 54 YEARS, S/O. BALAKRISHNAN VAIDYAN
KANALIL VEEDU,
MUTHUKULAM NORTH MURI,
MUTHUKULAM VILLAGE
ALAPPUZHA, PIN - 690506
3 SURESH
AGED 59 YEARS, S/O. VASU
MARAKKASSERRIL CHIRAYIL VEEDU
MUTHUKULAM NORTH,
MUTHUKULAM VILLAGE
ALAPPUZHA, PIN - 690506
4 REMANAN
AGED 65 YEARS, S/O. RAGHAVAN,
MULLASSERRIL VEEDU,
MUTHUKULAM NORTH
MUTHUKULAM VILLAGE,
O.P.(Crl.) No.421/23 -:2:-
ALAPPUZHA, PIN - 690506
5 RAVI KRISHNAN
AGED 65 YEARS, S/O.KRISHNAN
KRISHNA BHAVANAM,
MUTHUKULAM NORTH
MUTHUKULAM VILLAGE,
ALAPPUZHA, PIN - 690506
BY ADV R.RAJASEKHARAN PILLAI
SRI.NOUSHAD K.A., PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
03.08.2023, THE COURT ON 25.08.2023 DELIVERED THE
FOLLOWING:
O.P.(Crl.) No.421/23 -:3:-
BECHU KURIAN THOMAS, J.
--------------------------------
O.P.(Crl.) No.421 of 2023
---------------------------------
Dated this the 25th day of August, 2023
JUDGMENT
Petitioner challenges an order dated 15.03.2022 in C.M.P.
No.4674 of 2022 in C.C. No.810 of 2019 on the files of the
Judicial First Class Magistrate's Court-I, Haripad. By virtue of the
impugned order, petitioner was added as an additional accused in
the aforesaid case for the offences under sections 153 and 188
r/w section 34 of the Indian Penal Code, 1860 (for short 'IPC'),
and issued process to him under section 204 of Cr.P.C.
2. Prosecution alleged that on 07.06.2018, the accused
had flouted an order of the court prohibiting placing and hoisting
of official flags of political organisations near the premises of
Kurumbukkara Temple at Alappuzha. The prosecution further
alleges that while there was tension prevailing between members
of different political organizations, the accused who were active
members of the RSS, violated the order and hoisted a saffron
flag near the temple premises and committed the offences
punishable under sections 153 and 188 r/w section 34 of IPC.
3. On 25.01.2019, the final report was filed arraying two
persons as accused, and the charge was framed by the court on
27.09.2022. After trial commenced, two witnesses were
examined on behalf of the prosecution. On the basis of an
application preferred by the prosecution under section 319 Cr.P.C
and on the basis of the depositions of PW1 and PW2, both of
whom had specifically stated that Sri.Rajendra Prasad-the
petitioner who hoisted the flag on 07.06.2018 near the temple
premises, found sufficient materials to proceed against the said
person also, as he appears to have, from the evidence on record,
committed the offences alleged.
4. Sri.K.Ramkumar, the learned Senior Counsel duly
instructed by Adv. B.Renjithkumar submitted that the learned
Magistrate committed an error in not issuing notice to the
petitioner prior to including him as an accused in the party array.
In support of the said contention, he relied upon the decision in
Jogendra Yadav and Others v. State of Bihar and Another
[(2015) 9 SCC 244]. It was further contended that the order
under section 188 Cr.P.C, which is alleged to be flouted, has not
even been produced before the court and therefore the petitioner
cannot be added as an additional accused.
5. Sri.R.Rajasekharan Pillai, learned counsel for
respondents 2 and 3 on the other hand contended that the
learned Magistrate, after the evidence of PW1 and PW2, found
that the involvement of the petitioner has come out in evidence
and therefore thought it fit to implead him as an additional
accused. He relied upon a recent judgment in Yashodhan Singh
and Others v. State of Uttar Pradesh and Another (2023
SCC OnLine SC 890), where the Supreme Court observed that
when a person is to be summoned as an additional accused,
notice or an opportunity of hearing is not required to be granted
to him under section 319 Cr.P.C.
6. The Learned Public Prosecutor also supported the
impugned order and stated that once the court exercises its
power under section 319 Cr.P.C in the absence of any perversity,
the court ought not to interfere.
7. The two contentions advanced by the learned Senior
Counsel relates to (i) lack of prior notice before adding the
additional accused and (ii) order which is the basis for the
offence under section 188 IPC has not been produced in
evidence.
8. PW1 and PW2 had specifically stated that the petitioner
had hoisted the flag next to the temple premises. The learned
Magistrate has, in the impugned order, referred to the said
evidence and observed that the petitioner appears to have also
committed an offence which could be tried together with the
existing accused. This finding is not conclusive but only for the
purpose of section 319 Cr.P.C. On a perusal of the provisions of
section 319 Cr.P.C, it is evident that the learned Magistrate has
considered the evidence sufficient enough to warrant adding the
petitioner as an accused. It was also considered by the learned
Magistrate and found that strong and cogent evidence appears
against the petitioner warranting the exercise of the power under
section 319 Cr.P.C. A perusal of the order reveals that the power
has not been exercised in a casual or cavalier manner, and on
the other hand, the learned Magistrate has considered and given
reasons for including the petitioner as an accused.
9. In Jogendra Yadav's case (supra), the Supreme Court
made a passing observation that when a person is added as an
accused under section 319 Cr.P.C, he is to be heard before being
so added. However, in a recent decision in Yashodhan Singh's
case (supra), Supreme Court observed that the principle of
hearing a person before he is summoned cannot be read into
section 319 Cr.P.C, and such a procedure is not at all
contemplated therein. It was further observed that the decision
in Jogendra Yadav's case (supra) was relatable only to the
facts of the said case, and it cannot be applied as the law of the
land. In view of the aforesaid binding decision of the Supreme
Court, the proposition that the petitioner was not issued with a
notice prior to including him as an accused, is not tenable and
the same is rejected.
10. The contention that the order which is the basis for the
offence under section 188 IPC has not been produced, is a
matter which has to be looked into after the evidence is
adduced. The order can be marked in evidence through any of
the witnesses or through the person who had issued the said
order. Therefore, it is too premature a point in time to consider
the said contention. Even otherwise, the offence under section
153 IPC has also been included. Therefore, even if the
prosecution fails to prove the offence alleged under section 188
IPC, still the offence under section 153 IPC remains. These are
all matters that can be considered during trial and petitioner has
the liberty to canvass the contentions at that stage.
11. In view of the above circumstances, I find no
perversity in the impugned order, and the learned Magistrate was
justified, from the evidence adduced so far, to include the
petitioner also as an accused.
Therefore, there is no merit in this original petition, and it
is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX
PETITIONER'S/S' EXHIBITS
EXHIBIT-P1 TRUE COPY OF THE FIR IN CRIME
NO.851/2018 OF KANAKAKKUNNU POLICE
STATION DATED 7.6.2018
EXHIBIT-P2 TRUE COPY OF THE FINAL REPORT DATED
27.9.2019 FILED BEFORE THE TRIAL COURT.
EXHIBIT-P3 TRUE COPY OF THE PETITION IN CMP NO.
4674/2022 IN CC NO. 810/2019 ON THE FILE
OF TRIAL COURT FILED ON 11.11.2022
EXHIBIT-P4 TRUE COPY OF THE ORDER DATED 15.3.2023
IN CMP NO. 4674/2022 IN CC NO. 810/2019
IN THE FILE OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, HARIPPAD
EXHIBIT-P5 TRUE COPY OF THE ORDER NO.
32/3237/DCRB/2018 A DATED 28.11.2018 OF
DISTRICT POLICE CHIEF, ALAPPUZHA
RESPONDENT'S/S' EXHIBITS
EXHIBIT-R2A TRUE COPY OF THE PETITION SUBMITTED BY
ONE BHASKARAN ON 28.4.2018 BEFORE THE
RDO CHENGANNUR
EXHIBIT-R2B TRUE COPY OF THE ORDER DATED 10.4.2018
OF THE SUB DIVISIONAL MAGISTRATE COURT
CHENGANNUR
EXHIBIT-R2C TRUE COPY OF THE NOTICE DATED 22.11.2018
RECEIVED BY THE CONCERNED WITNESSES IN
CONNECTION WITH THE DISCIPLINARY
PROCEEDINGS OF THE DIRECTOR GENERAL
EDUCATION
EXHIBIT-R2D TRUE COPY OF THE ORDER DATED 13.4.2023
IN IA NO.1/2023 IN OS NO.139/2023 OF THE
MUNSIFFS COURT HARIPAD
EXHIBIT-R2E TRUE COPY OF THE QUESTIONNAIRE TO THE
INVESTIGATION OFFICER SUBMITTED BY
P.BHASKARAN
EXHIBIT-R2F TRUE COPY OF THE REPLY DATED 29.8.2018
TO EXT.R2E
