IMPORTANT POINT
The main legal point established in the judgment is the interpretation and application of Section 319 of the Cr.P.C, which allows the court to proceed against a person not initially accused if evidence suggests their involvement in the offense based on prima facie satisfaction.

ORDER :

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, (hereinafter referred to as 'Cr.P.C' for short) and the prayers herein are as under:

“(i) Set aside the Annexure-A5 order dated 18.10.2023 in Crl.M.P.No.772/2023 in S.C.No.509/2018 of the Court of the Special Judge, Fast Track Special Court, Irinjalakuda.

(ii) Pass such other order or direction, which are deemed fit and proper on the facts and circumstances of the case and in the interest of justice.”

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

3. The learned counsel for the petitioner argued at length to convince this Court that the trial court wrongly implicated the petitioner as second accused without sufficient materials, in a case where, at the time of initial investigation and further investigation, the Police exonerated the 2nd accused in this crime though her name was initially stated in the FIR. It is argued that the learned Special Judge, relying on the evidence of PW1 and her version in the First Information Statement, marked as Ext.P1, invoked the power under Section 319 of Cr.P.C. According to the learned counsel for the petitioner, the entire case generated on the basis of the rivalry, arose out of a lesbian relationship between the 2nd accused and the defacto complainant and when the relationship was strained, the 1st accused and the 2nd accused got arrayed as accused in this crime. However, on investigation, as already pointed out, the 2nd accused was not found involved in this crime. According to the learned counsel for the petitioner, Annexure-A5 order is erroneous and illegal, warranting interference.

4. Whereas the learned Public Prosecutor opposed interference in Annexure-A5 order in Crl.M.P.No.772/2023 in S.C.No.509/2018, whereby the trial court arrayed the petitioner herein also as the 2nd accused, on the allegation that she also committed offences punishable under Sections 120B, 377 and 506 read with Section 34 of IPC.

5. On perusal of the order impugned, in paragraph No.4, the learned Special Judge stated as under:

“4. It is seen that Ext.P1 FI Statement the allegations against has been clearly stated by PW1. She was also reiterated the allegations in the deposition before the court.”

The said observations, relying on the evidence of PW1, is the basis on which the Special Judge had exercised his power under Section 319 of Cr.P.C.

6. Now the question arises for consideration is, what are the essentials to be satisfied by the court in order to apply Section 319 of Cr.P.C. In this connection, extraction of Section 319 of Cr.P.C is worthwhile and thus the same is extracted hereunder:

“319. Power to proceed against other persons appearing to be guilty of offence.—

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the court, although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under sub-section (1), then—

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.”

7. The scope and ambit of Section 319 of Cr.P.C have been discussed and dealt with in detail in the Constitution Bench decision of the Apex Court in Harde