ORDER: While giving evidence as P.W. 1 in C.C. No. 1000 of 1999 on the file of the Judicial First Class Magistrate Court, Ponnani, one Aboobacker deposed in examination-in-chief that the motor bike bearing Engine No. 325089 and chassis No. 5B 325089 (valued Rs. 30,000) was stolen after 8 p.m. on 23.1.1999 and when he went on 10th February, 1999 to Amala Hospital, Thrissur for seeing a patient, a close relative of that patient told him that he saw one Mubarak, who has been arraigned as an accused after trial started by the learned Magistrate under Sec. 319, Crl.P.C. on allowing an application filed by the Assistant Public Prosecutor has been undergoing treatment at that hospital for the injury sustained by him in a motor accident. P.W. 1 visited Mubarak, who was undergoing treatment as an indoor patient and the said Mubarak told him that the injuries were sustained by him while he was riding a motorcycle and that he sustained injuries as a result of hitting of motor cycle on a bus. When P.W. 1 asked Mubarak whether any motorcycle was owned by him, he made a clean breast saying that the motor cycle belonging to the brother of P.W. 1 was stolen jointly by Mubarak, Muhammed alias Shaji and Sainudheen. P.W. 1 deposed that guilty conscience made Mubarak to make the confession. It is also his evidence that Mubarak confessed that they have changed the number, silencer and handle to conceal the identity of the motor cycle. P.W. 1 asserted that he had informed about the making of confession by Mubarak to the investigation officer and it is his evidence that the investigation officer asked him not to disclose the fact to anyone and promised to make investigation.

2. Before examination- in-chief of P.W. 1 was completed, the Assistant Public Prosecutor who conducted the prosecution filed an application under Sec. 319, Crl.P.C. for arraigning Mubarak as an accused and that application was allowed by the learned Magistrate arraigning petitioner as an accused.

3. Learned counsel for the petitioner submitted that the power under Sec. 319, Crl.P.C. is an extraordinary power and should be used very sparingly. Counsel relied on the decision of the Supreme Court in Michael Machado v. C.B.I., 2000 S.C.C. (Crl.) 609 to contend that no material is available to arraign the petitioner as an accused invoking the powers under Sec. 319, Crl.P.C. There cannot be any quarrel with the proposition that the power under Sec. 319, Crl.P.C. has to be exercised sparingly. Learned counsel also contended before me that extrajudicial confession is a weak piece of evidence and the trial Court ought not have relied on that weak piece of evidence to exercise its power under Sec. 319, Crl.P.C. Counsel also submitted that there is no reliable evidence to prove that the confession made was voluntary and true and the facts admitted in the confessional statement are true.

4. Sec. 319 of the Code of Criminal Procedure, 1973 reads thus:

“319. Power to proceed against other persons appearing to be guilty of offences:

(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-Sec. (1) then-

(a) the proceedings in respect of such person shall be commenced afresh, and the witness 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 c

Click Here to Read the rest of this document