Kerala High Court
Sreelekha @ Lekha vs Deputy Superintendent Of Police, ... on 21 May, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
2025:KER:37547
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947
CRL.MC NO. 8119 OF 2017
CRIME NO.81/2012 OF NILESWAR POLICE STATION, KASARGOD
AGAINST THE ORDER DATED 02.11.2017 IN SC NO.488 OF 2012 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - II,
KASARAGOD / II ADDITIONAL MACT, KASARAGODE
PETITIONERS/ACCUSED:
1 SREELEKHA @ LEKHA
AGED 28 YEARS, W/O.CHANDRAN,
RCR VILLAGE, KULOM ROAD, MADAYI,
KASARGOD DISTRICT.
2 CHANDRAN
AGED 36 YEARS, S/O.KUNHIRAMAN NAIR (LATE),
RCR VILLA, MUDIKKAL P.O., ADUTHATHU VILLAGE,
NEELESWARAM, KASARGOD DISTRICT.
BY ADV.
SRI.SUNNY MATHEW
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1 DEPUTY SUPERINTENDENT OF POLICE,
CBCID, KANNUR, PIN - 671321
2 STATE OF KERALA
RESPONDENTS 1 AND 2 REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682031.
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2
BY ADVS.
SRI. SANGEETHA RAJ N.R., PUBLIC PROSECUTOR
SRI. M.SASINDRAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
21.05.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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3
C.R.
ORDER
Annexure A1 order passed by the Additional
Sessions Court - II, Kasaragod (for short, 'the trial court') in
S.C. No.488/2012 under Section 319 of the Criminal
Procedure Code (Cr.P.C.) is under challenge in this Crl.M.C.
2. One Jisha was stabbed to death at her house
situated at Adukkamparambu in Madikai Panchayat at about
8.45 pm on 19.02.2012. The local Police registered an FIR
and arrayed the maid servant of the house, one Mr. Tushar
Sen Malik @ Madan Malik, a native of Odisha, as the sole
accused. The local police initially conducted the
investigation and filed the final report against the accused.
The prosecution allegation is that the accused, who was
employed by PW3 Chandran in his house to look after his
aged father, planned to kill PW1 Sreelekha, but murdered
the deceased Jisha on mistaken identity by stabbing her with
a knife at 8.45 p.m. on 19.02.2012. Dissatisfied with the
final report, the father of the deceased filed a Writ Petition
before this Court as W.P.(C) No.9303/2013 seeking
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investigation by CBI. This Court, by its judgment dated
07.08.2013, directed the Crime Branch to take over the
investigation and conduct further investigation. Accordingly,
CBCID, Kannur Unit, took up the investigation and filed the
final report, arriving at the same conclusion as the local
police.
3. The accused appeared before the trial court. He
pleaded not guilty. The trial of the case started on
12.07.2017. The prosecution examined 35 witnesses out of
77 witnesses cited; Exts.P1 to P31 were marked, and MOs 1
to 17 were identified. Thereafter, the trial court found that
PWs 1 and 3 were also involved in the commission of the
offence, and they were ordered to be arrayed as additional
accused Nos.2 and 3 by invoking Section 319 of Cr.P.C. PW3
is the brother of the husband of the deceased and PW1 is
the wife of PW3.
4. The above Crl. M.C. has been filed by PWs 1 and
3 challenging the order (Annexure A1) arraying them as
additional accused Nos.2 and 3. A learned Single Judge of
this Court, as per the order dated 19.01.2018, allowed the
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above Crl.M.C. and all further proceedings pursuant to
Annexure A1 were quashed. Thereafter, the father of the
deceased, who was examined as PW16, filed Crl.M.A.
No.1529/2018 to recall the order dated 19.01.2018 and to
rehear the Crl.M.C, along with Crl.M.A.No.1536/2018 to grant
leave to file an application for recalling the order. He had
also filed Crl.M.A. No.1530/2018 to get himself impleaded in
the Crl.M.C. All these applications are allowed. The petitioner
therein is impleaded as additional respondent No.3, and the
order dated 19.01.2018 is recalled.
5. Heard the learned counsel for the petitioners Sri.
Sunny Mathew and the learned counsel for the 3rd
respondent Sri.M.Sasindran.
6. The investigating officer filed a detailed report.
7. The learned counsel for the petitioners
submitted that the power exercisable under Section 319 of
Cr.P.C is an extraordinary one, and it should be exercised
sparingly and with caution only if compelling reasons exist.
The learned counsel further submitted that the trial court
failed to objectively satisfy itself before deciding to invoke
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the power under Section 319 of Cr.P.C. The order impugned
is manifestly illegal and liable to be set aside, submitted the
counsel. On the other hand, the learned counsel for the 3rd
respondent submitted that the trial court invoked its power
based on the evidence, and there is no reason for
interference.
8. Section 319 of Cr.P.C (Section 358 of BNSS)
empowers the court holding trial to proceed against any
person not shown or mentioned as an accused if it appears
from the evidence that such a person has committed a crime
for which he ought to be tried together with the accused who
is facing the trial. A person not named in the FIR, or a
person though named in the FIR but has not been charge-
sheeted, or a person who has been discharged, can be
summoned under Section 319 of Cr.P.C (Section 358 of
BNSS) provided it appears from evidence that such a person
could be tried along with the accused already facing trial.
The law on the point of summoning additional accused in
exercise of the power conferred under Section 319 of Cr.P.C
(Section 358 of BNSS) is well settled. The power under
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Section 319 Cr.P.C (Section 358 of BNSS) is a discretionary
and extraordinary power. It is to be exercised sparingly and
only in those cases where the circumstances of the case so
warrant. The threshold for summoning is not proof beyond a
reasonable doubt. However, the trial court, while exercising
power under Section 319 of Cr.P.C (Section 358 of BNSS),
must not act mechanically merely on the ground that some
evidence has come on record implicating the person sought
to be summoned (Satbir Singh v. Rajesh Kumar 2025
SCC OnLine SC 694). What is essential for the exercise of the
power under Section 319 of Cr.P.C (Section 358 of BNSS) is
that the evidence on record must show the involvement of a
person in the commission of a crime, and that said person,
who has not been arraigned as an accused, should face trial
together with the accused already arraigned. It is not to be
exercised when the Magistrate or the Sessions Judge is of
the opinion that some other person may also be guilty of
committing that offence. Only where strong and cogent
evidence occurs against a person from the evidence led
before the Court, should such power be exercised and not in
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a casual and cavalier manner. The test that has to be
applied is one which is more than a prima facie case as
exercised at the time of framing of the charge, but short of
satisfaction to an extent that the evidence, if it goes
unrebutted, would lead to conviction. In the absence of such
satisfaction, the Court should refrain from exercising power
under Section 319 Cr.P.C. [Hardeep Singh v. State of
Punjab (2014) 3 SCC 92]. Recently the Supreme Court in
Harjinder Singh v. State of Punjab (2025 KHC OnLine
6443) held that power under Section 319 (Section 358 of
BNSS) is extraordinary and therefore to be exercised with
circumspection, yet it is neither illusory nor deferential to
investigative conclusions; once live evidence evinces a
prima facie case stronger than mere suspicion, the court
must act.
9. The deceased Jisha was residing at her
matrimonial house along with her brother-in-law (PW3) and
his wife (PW1), who are the petitioners herein. The father of
PW3 also resided with them. The accused was employed in
the house to take care of the father of PW3, who was ailing.
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On 19.02.2012, Jisha sustained serious stab injuries in the
kitchen of the house. She was immediately taken to the
hospital by the 2nd petitioner along with others. She
succumbed to the injuries later. During the investigation,
the accused was arrested from the terrace of the house on
21.02.2012. After the investigation, the final report was filed
against the accused, alleging an offence punishable under
Section 302 of the IPC. There were absolutely no allegations
against the petitioners in the final report; rather, they were
cited as prime witnesses for the prosecution.
10. The impugned order would show that the trial
court concluded that there exists strong circumstantial
evidence against the petitioners in the commission of the
crime mainly on the following grounds;
i. Though PW1 was present in the house at the time of
the incident, she did not disclose the accused's name to
the police on the same day of the incident.
ii. There was an unreasonable delay in admitting the
deceased to the hospital.
iii. The fuse of the main electrical power of the house was
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removed 10-15 minutes prior to the commission of the
offence. However, no one in the house had enquired as
to how the electricity failed in the house, even though
there was electric supply and power in the nearby
house.
iv. The offence was committed at about 8.45 p.m. on
19.02.2012, but the accused was intercepted from the
terrace of the house only on 21.02.2012 at about 12.00
p.m.
v. PW19, the Jail Warden deposed that the accused gave
a confession to him at the Jail while he was a remand
prisoner about the involvement of his boss in the
commission of the offence.
11. I fail to understand how the above evidence/
circumstances suggest the involvement of the petitioners in
the commission of the offence. The omission, if any, on the
part of PW1 in disclosing the name of the accused to the
police cannot be taken as a ground to suspect her complicity
in the commission of the crime. In the report filed by the
investigating officer, it is categorically stated that in the
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statement given by PW1 on 20.02.2012, she clearly
mentioned the name of the accused. The FIR was registered
only on 20.02.2012. Though in FIS, the time of the incident
was shown as 8.15 p.m, it was clarified by the person who
gave the FIS in his subsequent statement given on the next
day that the time of the incident was 8.45 p.m. It has come
out in evidence that PW3 was informed about the incident at
8.51 p.m. He came from Irikulam town to the home and took
the deceased to the hospital, which is six kms away. They
reached the hospital at 9.15 p.m. Therefore, it cannot be
said that there was an undue delay in taking the deceased
to the hospital. Mere non-enquiry about the lack of electric
supply cannot be taken as an incriminating circumstance
against PW1. That apart, the report of the investigating
officer would show that there was inverter connection in the
nearby houses. The evidence disclosed that immediately
after the incident, the accused left the house, but on
realising that his personal belongings were kept on the
terrace of the house, he went back to the terrace and was
held up there. Thereafter, he could not escape from there
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since the local people had assembled there. That may be the
reason why he was intercepted from the terrace on
21.02.2012 at about 12 p.m. That cannot be taken as a
circumstance against the petitioners to contend that they
concealed the accused on the terrace of the house. In the
alleged confession made by the accused before PW19, he
did not disclose the name or the identity of the petitioners.
That apart, he did not state so to the local police. He came
out with the extrajudicial confession before the crime branch
only in 2013, after about one year and ten months.
12. The grounds relied on by the trial court are not
even prima facie sufficient to invoke Section 319 of Cr.P.C.
There is nothing in the evidence adduced by the prosecution
so far, even to suspect the involvement of the petitioners in
the commission of the crime. The trial court cannot exercise
the extraordinary power under Section 319 of Cr.P.C
mechanically and on guesswork based on some stray
evidence that has come on record implicating the person
sought to be proceeded against, unless the involvement of
such a person in the commission of a crime is manifested
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from the evidence. In fact, PWs 1 and 3 are crucial witnesses
relied on by the prosecution. Arraying them as accused may
adversely affect the prosecution case. For these reasons,
the impugned order cannot be sustained, and accordingly, it
is set aside.
The Crl.M.C. stands allowed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
BR
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PETITIONERS' ANNEXURES
ANNEXURE A1 CERTIFIED COPY OF ORDER PASSED BY THE
ADDITIONAL SESSIONS COURT II, KASARGOD.
