The main legal point established in the judgment is the requirement for a balanced approach and the need to consider the evidence on record before impleading an accused under Section 319 of the Criminal Procedure Code.

On the information furnished by one Mohanambal @ Kamalam, the respondent registered a case in Crime No.473 of 2004 on 08.10.2004 against four named and ten unnamed accused for alleged offences under Sections 147, 447, 427, 294(b) and 506(ii) I.P.C. In the said F.I.R., the petitioner who is an Ex.MLA, was shown as the second accused. The allegation was that the named accused along with the unnamed persons, formed an unlawful assembly, criminally trespassed into the land belonging to the defacto complainant, caused damage, criminally intimidated the defacto complainant and also abused the defacto complainant in filthy language.

2. On completing the investigation, the respondent however filed final report against only four persons. The petitioner was not arrayed as an accused. Curiously, before taking cognizance on the said final report, the learned Magistrate did not issue notice to the defacto complainant as per the law laid down by the Honble Supreme Court in Bhagwant Singh Vs. Commissioner of Police reported in 1985 Criminal Law Journal page 1521. Thereafter, the learned Magistrate framed charges against those persons, who were arrayed as accused in the final report. During trial, the defacto complainant was examined as P.W.1 and one Duraisamy was examined as P.W.2 and they were also cross-examined at length by the accused. In their deposition, P.Ws.1 and 2 stated that the petitioner was one among the accused who committed all the crimes. Based on the said evidence of P.Ws.1 and 2, the learned Assistant Public Prosecutor, who was in charge of the case, filed Crl.M.P.No.4053 of 2008 before the learned Judicial Magistrate, under Section 319 of the Code of Criminal Procedure requesting the Court to issue summons to the petitioner by adding him as an accused. The learned Magistrate by order dated 01.07.2008 allowed the said petition. The petitioner was aggrieved by the same. Therefore, the petitioner filed Crl.R.C.No.973 of 2008 before this Court, challenging the said order.

3. This Court, by order dated 07.08.2008, set aside the said order mainly on the ground that it was a non-speaking order as the same did not reflect the proper application of mind and the same was passed in a mechanical fashion. Consequently, this Court remanded the matter back to the learned Magistrate for fresh orders in accordance with law as per the settled principles of law laid down by the Honble Supreme Court in various judgments.

4. Accordingly, when the matter was again taken up for hearing by the learned Magistrate, the petitioner appeared before the learned Magistrate voluntarily and filed a memo of objection. Very strangely, the learned Magistrate allowed the petitioner to raise all his objections and also to submit his arguments through a counsel. It is unfortunate that the learned Magistrate was not appraised of the legal position that while the matter is being considered under Section 319 of the Code of Criminal Procedure, right of representation is not available to a proposed accused.

5. Before the learned Magistrate, yet another strange argument was advanced by the learned Assistant Public Prosecutor, Grade-I, who was incharge of the case, inasmuch as he submitted that the Investigating Officer had intentionally omitted to include the name of the petitioner in the final report though there were materials collected during investigation pointing out the participation of the petitioner in the commission of the crime. The learned Assistant Public Prosecutor further submitted that based on the averments in the F.I.R. and in the statements of witnesses recorded under Section 161 (3) of the Code of Criminal Procedure, the petitioner needs to be impleaded as an accused under Section 319 of the Code of Criminal Procedure. I do not understand as to how such an argument could be advanced by the learned Assistant Public Prosecutor before the said Magistrate when law is well settled that while deciding a petition filed under Section 319 of t