One of the prosecution witnesses viz., PW1, in a Sessions Case in which the offences involved are under Section 120B read with Sections 364 I.P.C., 302 I.P.C. and 201 I.P.C., is the revision petitioner as he is aggrieved by the order dated 29.3.2010 in Crl.M.P.No.4239 of 2009 in S.C.No.309 of 2003 pending in the court of the IV Additional Sessions Judge, Ernakulam, by which his petition filed under Section 319 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’) to add one A.P. Abookbacker Musaliyar as an additional accused in the above sessions case is dismissed.

2. The allegation of the prosecution in the above sessions case is that in the evening of 29.7.1993, accused Nos.1 and 4 abducted one Chekannur Moulavi in a jeep from his house and when they reached Kolappuram, accused Nos.3, 5, 6 and 7 joined with accused Nos.1 and 4 and as instructed by A4, A6, A7, A5 and A3 put a cloth around the neck of Moulavi from behind and thus committed murder of him at 9.30 p.m. on 29.7.1993.

3. The first respondent, the Central Bureau of Investigation (for short ‘the C.B.I.’) is the agency, who undertook the investigation, and they have filed a report on the basis of which the above sessions case was instituted. The alleged date of occurrence is 29.7.1993 and the above sessions case was instituted after ten years, that is during the year 2003 and thus, the trial was commenced much earlier. The present petition is preferred during the year 2009 at a stage when the prosecution evidence is over and when the case is ripe for questioning the accused under Section 313 Cr.P.C. The learned Sessions Judge, who recorded the evidence of the prosecution witnesses, came to the conclusion that there is no material compelling to invoke Section 319 of Cr.P.C. and to add the second respondent as an accused in the above sessions case. It is the above finding and order dismissing the petition filed under Section 319 of Cr.P.C. challenged in this Crl.R.P.

4. I have heard Sri. K. Ramakumar, learned Senior Counsel appearing for the revision petitioner and Sri. M.V.S. Namboothiry, Standing Counsel appearing for the C.B.I., the first respondent herein and also heard Sri. M.R. Venugopal, learned Public Prosecutor for the State.

5. Learned Senior Counsel during his strenuous argument submitted that the approach made by the court below upon a petition filed under Section 319 of the Cr.P.C. is absolutely perverse, illegal and incorrect and therefore, the above order is liable to be set aside. The learned counsel invited my attention to paragraph 7 and particularly the observation of the learned Single Judge to the effect that “the court is not bound to proceed even when there is evidence justifying such action.” According to the learned Senior Counsel, the above observation and the approach disclosed the mind of the learned Sessions Judge, which cannot be approved in the light of the decisions of the Apex Court as well as this Court on this subject. In support of the above submission, the learned counsel heavily relied upon the decision of this Court reported in Baijunath v. Station House Officer [2005 (3) KLT 253] and according to the learned Senior counsel, when the materials on record prima facie show the involvement of the person, who is sought to be added as an accused, the court should act under Section 319 impleading such person as an accused. Learned counsel, to substantiate the submission, read over the deposition of one Veerankutty, who was examined as PW4 and also the deposition of PW1, the revision petitioner.

6. On the other hand, stoutly opposing the revision petition as well as the contention advanced on behalf of the revision petitioner, Mr. M.V.S. Namboothiri, learned Senior Counsel appearing for the C.B.I submitted that the impugned order is factually and legally correct and as such, there is no illegality or irregularity or impropriety to interfere with the same exercising the revisional jurisdiction of this Court. The learned Stan