RAMLATH Vs. NASAR ABDUL RAZAK

JUDGEMENT

(1.) The order passed by learned Sessions judge impleading petitioner who is a prosecution witness as additional accused is under challenge in this revision.

(2.) Short facts of the case necessary for a decision of this revision are: The Deputy Superintendent of Police, CBCTD (CFS) Unit, Ernakulam charge sheeted two accused for offences punishable under Sections 498B and 498C read with Section 34 of the Indian Penal Code (for short, "the IPC"). According to the prosecution, petitioner (cited by prosecution as charge witness No. 4 and examined in the court of learned Sessions Judge as P.W. 3) took a few of the counterfeit currency notes involved in the case to a Co-operative Bank on 1.2.2002 for repayment of a loan she had availed and gave those currency notes to the Bank authorities, P.W.I, Cashier of that Bank felt suspicious about the genuineness of the currency notes and informed the matter to his superior officer (accused No. 2). Accused No. 2 is said to have entrusted those currency notes to P.W.2 who checked its genuineness. It was revealed that the currency notes are counterfeit. On 11.2.2002 P.W. 2 asked petitioner whether she had similar notes with her. She stated that she has with her 14 more similar notes. On 27.2.2002 police was informed about the incident and they registered a case.' According to the prosecution accused No. 1 had given counterfeit currency notes to P.W. 5 by way of a loan. P.W. 5 owed money to P.W. 4, husband of petitioner who is engaged in manure business. When P.W. 4 demanded repayment of the amount, P.W. 5 is said to have given the notes to P.W. 4. P.W. 4 entrusted a few of those notes to his wife, the petitioner for repayment of loan in the Bank. It thus that petitioner gave the counterfeit currency notes to the Cashier of the Bank on 11.2.2002. Based on the final report, charge was framed against accused Nos. 1 and 2 for offences punishable under Sections 489B and 489C of the IPC. On their pleading not guilty prosecution examined its witnesses. Petitioner was examined as P.W. 3 on 8.9.2007. Resiling from her previous statement to the Investigation Officer she denied that she had given the (counterfeit) currency notes to the Cashier. After examination of petitioner, learned Public Prosecutor filed CM.P. No. 2681 of 2007 to implead petitioner as additional accused. Learned Sessions Judge closed that petition directing the prosecution to examine C.Ws. 5 and 6. After examination of C.Ws. 5 and 6 as P.Ws.4 and 5, learned Public Prosecutor requested that petitioner may be impleaded as additional accused. After hearing learned Public Prosecutor and counsel for accused learned Sessions Judge vide the impugned order dated 3.1.2009 allowed the request and impleaded petitioner as accused No. 3. That order is under challenge in this revision. Learned Counsel for petitioner contends that evidence given by petitioner as P.W.3 could not be made use of for impleadment in view of the protection available to her under the proviso to Section 132 of the Indian Evidence Act (for short, "the Act"). It is also contended by learned Counsel that there is no material on record to show even prima facie that petitioner possessed or used counterfeits currency notes knowing the same to be counterfeit. Learned Public Prosecutor contended that on the evidence on record petitioner could be impleaded as additional accused.

(3.) Section 319 of the Code of Criminal Procedure (for short, "the Code") enables the court to implead a person as an accused in the case and try him along with the accused already on record. It is not disputed that it is after examination of P.Ws. 1 to 5 including petitioner that order of impleadment was passed by learned Sessions Judge. Two questions arose for a decision in this case; (1) whether, in ordering impleadment evidence of petitioner as P.W. 3 could be taken into account and, (2) whether from the evidence on record it appeared that petitioner has committed offences punishable under Sections 489B and 489C of the IPC