Kerala High Court
K.Sudhakara Shenoy vs The State Of Kerala on 31 March, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938
Crl.Rev.Pet.No. 1643 of 2006
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AGAINST THE JUDGMENT IN CRA 211/2004 of ADDL. SESSIONS COURT (ADHOC-
III), KASARAGODE DATED 31-03-2006
AGAINST THE JUDGMENT IN CC 436/1999 of J.M.F.C.-I,HOSDRUG DATED 06-05-
2004
REVISION PETITIONER/APPELLANT/ACCUSED:
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K.SUDHAKARA SHENOY,AGED 62 YEARS,
S/O.K.NARAYANA SHENOY,MERCHANT, NEAR KAILAS THEATER,
RESIDING AT CITY QUARTERS, AVIKKARA, KANHANGAD P.O.,BALLA
VILLAGE,, HOSDURG TALUK,KASARGOD DISTRICT.
BY ADV. SRI.T.MADHU
RESPONDENT/RESPONDENT/COMPLAINANT & STATE:
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THE STATE OF KERALA,
REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, REP.BY THE MUNSIFF, MUNSIFF'S COURT,HOSDURG.
R BY PUBLIC PROSECUTOR SMT. MAYA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
10.01.2017, THE COURT ON 25-01-2017 PASSED THE FOLLOWING:L
C.R.
SHIRCY V.,J.
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Crl. R.P. No. 1643 of 2006
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Dated this the 25th day of January, 2017
O R D E R
The appellant in Crl.Appeal. No. 211/2004 on the file of the Additional Sessions Court (Ad hoc)-III, Kasaragod has approached this court challenging the correctness ,legality and propriety of the judgment , confirming the conviction passed against him in C.C.No. 436/1999 by the Judicial First Class Magistrate-1, Hosdurg. He has also questioned the correctness of the judgment in appeal, enhancing the sentence awarded against him by the learned Magistrate.
2. The prosecution was set in motion on the complainant by the Munsiff, Hosdurg. An Amin attached to CRRP 1643/2006 2 the Principal Munsiff Court, Hosdurg was entrusted with the duty of execution of warrant against the accused/Judgment debtor (herein after referred to as the 'accused') in a money suit. On 31.3.1999 at about 9 a.m. the Amin went to the residence of the accused to execute the warrant issued against him in E.P.No. 204/1998 on the file of the Munsiff Court, Hosdurg. When the Amin reached at the residence of the accused, he was standing on the verandah of his house. Then the Amin introduced himself to the accused and informed that he came to execute the warrant of arrest issued against him as the judgment-debtor, by the Munsiff, Hosdrug. The accused then admitted that he is the judgment debtor mentioned in the warrant and thereafter the Amin read over the contents of the warrant and demanded him to pay the amount mentioned in the warrant. But he refused to pay the amount. Then the Amin demanded him to submit for arrest for execution of the warrant as per law , but he refused to obey his directions CRRP 1643/2006 3 and did not accompany him to the court. Instead, he then immediately entered into the house and closed the front door and remained inside the house. The Amin had to wait outside the house for a while, but the accused remained inside and so he could not execute the warrant .Thus the Amin was prevented from discharging his official duty and thereby he committed an offence punishable under Section 225 ( B ) of IPC . This is the version of the prosecution.
3. On the report of the Amin a complaint against the accused was lodged by the learned Munsiff, Hosdurg and the case was registered. The learned Magistrate had examined the Amin as PW1 and marked Ext.P1 series and Ext.P2. After trial the accused was found guilty and convicted for the offence under Section 225 B of IPC and sentenced him to undergo simple imprisonment till rising of the court and to pay a fine of Rs.2000/-, failing which to undergo simple imprisonment for a further period of one month.
CRRP 1643/2006 4
4. Aggrieved by the conviction and sentence entered by the learned Judicial First Class Magistrate against the accused , appeal was preferred before the Sessions Court, Kasragod as Crl. Appeal. No. 211/2004. The learned Additional Sessions Judge who heard the appeal had dismissed the same but enhanced the sentence imposed upon him and awarded simple imprisonment for three months and to pay a fine of Rs. 2,000/- in default to undergo simple imprisonment for one month.
5. At the outset, it is to be noted that the learned Judicial First Class Magistrate, on the finding that the accused had committed an offence under section 225 B IPC had convicted him and sentenced him as follows:
"Accused is convicted and sentenced to undergo simple imprisonment till the rising of the court and also to pay a fine of Rs.2000/- in default simple imprisonment for one month."
Aggrieved by the conviction and sentence, the appeal had been filed by the accused. The punishment prescribed in the CRRP 1643/2006 5 Indian Penal Code under Section 225 B, is imprisonment of either description for a term which may extend to six months, or with fine or with both. It is significant to note that the appeal had been preferred by the accused and not by the State. The accused had challenged the conviction as well the sentence imposed upon him in the appeal under Section 374( 3) Cr P C. No appeal was filed by the State under Section 377 (1)of the Code. The appeal is by the accused against the conviction and sentence imposed on him and not by the State Government against sentence. As mentioned earlier, the Judicial First Class Magistrate had sentenced the accused only for imprisonment till rising of the court. But the Appellate Court had enhanced the sentence by imposing him to undergo simple imprisonment for three months and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for one month. It is a settled position and a matter of common knowledge that if there is no appeal against sentence by the State, the CRRP 1643/2006 6 appellate court has no power whatsoever to enhance the sentence. Needless to say that the learned Additional Sessions Judge over stepped his power and erroneously enhanced the sentence. When the appeal was filed against the conviction and sentence by the accused, the appellate court has no power to enhance the sentence imposed upon him. Of-course when the appeal is filed by the State against sentence on the ground of inadequacy of sentence under Section 377 of Cr.P.C., the Court of Session is entitled to enhance the sentence, if found that the sentence is inadequate. Here, the accused himself had filed the appeal challenging the conviction as well the sentence imposed upon him. Admittedly, no appeal was preferred by the State Government against the sentence imposed against the accused on the ground of its inadequacy. But here the learned Additional Sessions Judge had acted clearly against the provisions of law and enhanced the sentence on the finding that the sentence imposed on the accused is CRRP 1643/2006 7 inadequate. Though no authority is required for this proposition ,it is worthwhile to mention about the decision of the Hon'ble Supreme Court in Sahab Singh and Others v. State of Haryana (AIR 1990 SC 1188) where it was held that enhancement of sentence in appeal by convicts is illegal. I would like to reproduce the following passage therefrom:
''4. Section 374 of the Code of Criminal Procedure ('the Code' hereinafter) provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377 entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Sub-section (3) of S.377 says that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his acquittal or for the reduction of the sentence. Admittedly no appeal CRRP 1643/2006 8 was preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under S.302/149 IPC. Section 378 provides for an appeal against an order of acquittal. Sec.386 enumerates the powers of the appellate court. The first proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on the High Court as well as the Sessions Court. It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any inferior court. Section 401 further provides that in the case of any proceedings, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in it is discretion, exercise any of the powers conferred on a Court of appeal by Ss.386, 389, 390 and 391 of the Code. Sub-section (2) of S.401 provides that no order under this Section shall be made to the prejudice of CRRP 1643/2006 9 the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Sub-section (4) next provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. It is clear from a conjoint reading of Ss.377, 386, 397 and 401 that if the State Government is aggrieved about the inadequacy of the sentence it can prefer an appeal under S.377(1) of the Code."
6. In Saraswati Devi and others v. State of Sikkim (2001 Cri.L.J.3921), it is held as follows:
''9. It is a well settled position of law that a conjoint reading of Sections 377, 386, 397 and 401 would indicate that if the State Government is aggrieved about inadequacy of the sentence, it can prefer an appeal under Section 377(1) of the Code. The failure on the part of State Government to prefer an appeal, does not, however, precludes the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since High Court itself is empowered to call for the record of the proceeding of any Court subordinate to it. But before CRRP 1643/2006 10 the High Court exercises its suo motu revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through the advocate.
The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the trial court. But the Sessions Judge does not have any power to enhance the sentence because the appeal was preferred before the Court of Sessions Judge under Section 374 of the Cr.P.C. Under Section 397, the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situated within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court. But in the present case, the Sessions Judge (South and West) sitting in appeal under Section 374 of Code enhanced the sentence which is not permissible under the law and has to be quashed."
7. As the enhancement of sentence imposed on the CRRP 1643/2006 11 accused by the learned Additional Sessions Judge is illegal, it is hereby set aside .
8. The accused had further contended that the conviction passed against him is also liable to be set aside as the glaring contradictions and inconsistencies in evidence had been totally ignored by the courts and there was no proper appreciation of the evidence by the courts. Hence, it is contended by the learned counsel for the accused that the conviction entered by the trial court as well the confirmation by the appellate court are illegal and improper which warrants an interference under the revisional jurisdiction of this court.
9. The complaint preferred by the Munsiff against the accused is dated 06.04.1999. The prosecution case is that the accused is the judgment debtor in E.P. No. 204/98 of the Munsiff Court, Hosdurg. On 31.3.1999 at 9 a.m. PW1, the Amin attached to the Munsiff Court who was authorised to execute the arrest warrant against the accused proceeded CRRP 1643/2006 12 to his residence and introduced him as the Amin of the court and informed about the contents of the warrant to execute the same. Ext.P1 is the warrant for arrest issued by the Munsiff Court against the accused. The address mentioned in Ext.P1 warrant is as follows:
"J.D., K.Sudhakara Shenoy, S/o. K. Narayana Shenoy, Merchant, Near Kailas Theatre, Hosdurg Village."
PW1 had deposed before the court that he went to execute the warrant in the address mentioned in Ext.P1. But in cross examination, it is revealed that he had gone to the residence of the accused instead of to the place in the address furnished in the warrant . It is discernible from the records that the accused is a merchant by profession and the address furnished by the decree holder in Ext.P1 is that of his business place. But it is clear from his deposition that he had gone to the residential house of the accused to execute the warrant. It is relevant to note that the Amin CRRP 1643/2006 13 never visited the place in the address mentioned in the warrant. The record clearly indicates that the residential address of the accused was not furnished to the court by the decree holder .
10. Order XXI Rule 38 of the Code of Civil Procedure deals with the issuance of warrant against a judgment debtor and it is extracted herein below for easy reference :
" Warrant for arrest to direct judgment-debtor to be brought up.- Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the costs (if any) to which he is liable, be sooner paid."
Section 225 B of IPC reads as follows:
" Resistance or obstruction to lawful apprehension, or escape or rescue in cases not otherwise provided for.- Whoever, in any case not provided for in Section 224 or Section 225 or in any other law for the time being in force, intentionally offers any resistance or illegal obstruction to the lawful apprehension of CRRP 1643/2006 14 himself or of any other person, or escapes or attempts to escape from any custody in which he is lawfully detained, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."
Section 225B of IPC is attracted only if there is resistance or illegal obstruction intentionally to escape from the custody in which one is lawfully detained or attempting to rescue from any custody where he was lawfully detained. No doubt an offence under Section 225B is committed only when the resistance to arrest is intentional and that can only be when the person who makes resistance knows that he is being or about to be arrested. So to bring home an offence under Section 225B of IPC., the prosecution is expected to prove that there was resistance, or illegal obstruction was offered by the accused to prevent lawful apprehension, or there was an attempt to rescue or escape from custody in which the person was lawfully detained. Here , it is fairly clear that CRRP 1643/2006 15 PW1 never visited the place mentioned in Ext.P1 warrant. Instead, out of over enthusiasm he went to the office of the decree holder /bank and not to the address in the warrant entrusted to him. The case of PW1 is that he went to the residence of the accused and introduced himself to the accused as the officer of the court. Then the accused entered into the house and closed the door, is what is narrated by him before the trial court. But apart from the highly interested testimony of this witness, no other independent witness is available to substantiate the prosecution case. Of course PW1 had no case that any independent witness was there at the place where he had gone and introduced as the Amin entrusted by the court to execute the warrant. But it is obvious that warrant was issued in one address and the Amin had gone to another place to execute the warrant. Definitely the first and foremost thing the prosecution was expected to prove by reliable and cogent evidence was that, the Amin had gone to CRRP 1643/2006 16 the address furnished by the decree holder to arrest the judgment debtor and there was resistance from the side of the judgment debtor to obstruct him from discharging his duty and that, due to the obstruction he could not execute the warrant. But admittedly PW1 did not visit the place mentioned in the warrant to execute the warrant. PW1 had deposed that when he reached at the residence of the accused he had closed the door so as to resist the lawful arrest by him. His further case is that he waited there for half an hour, but the accused did not open the door. But no witness was available to support his version. Even though there is an endorsement on the reverse side of Ext.P1 as Ext.P1(a), that he could not execute the warrant, the said endorsement was not seen supported by any witness from the place where he alleged to have gone to execute the warrant and waited for half an hour to execute the warrant, as deposed by him. Any official from the decree holder/ bank was also not cited as a witness as the case of PW1 CRRP 1643/2006 17 was that he was directed to the residence of the accused to execute the warrant by the decree holder/bank. The evidence of PW1 suffers from improbability. It cannot be relied on in the absence of reliable evidence that he had approached the judgment debtor to execute the warrant or there was any attempt to arrest him and that was resisted by the accused and because of the resistance he could not execute the warrant so as to invite a conviction for an offence under Section 225B of IPC. The burden is upon the prosecution to prove its case beyond reasonable doubt. The mere statement of PW1 that he could not execute the warrant as the accused had closed the door of his house is not sufficient to warrant a conviction . When the place of address is different it is patently clear that PW1 had gone to some other place to execute the warrant. It is pertinent to note that the endorsement (Ext.P1a) in the warrant by PW1 to the effect that he went to arrest the accused in the address mentioned in the warrant, is absolutely false . CRRP 1643/2006 18 The endorsement is not to the effect that the Amin had proceeded to the residence of the accused and he was obstructed from executing the warrant. Such being the case, it is impossible to conclude there was resistance from the side of the accused so as to obstruct the lawful arrest of him by an officer of the court. If only the prosecution is able to prove that there was actual obstruction from the side of the accused so as to resist the execution of the warrant and to obstruct PW1 from discharging the duty entrusted to him, an offence under Section 225B of IPC is attracted. No doubt, the prosecution could not prove its case beyond reasonable doubt. The mere statement of PW1 that he was not able to discharge his official duty because of the resistance of the accused cannot be accepted as such because of the glaring defects and contradictions referred above. In Thangal v. State of Kerala [AIR 1961 Ker. 331], this Court has dealt with the prerequisite to attract an offence under Section 225 B IPC as:
CRRP 1643/2006 19
"15. It is argued by the learned counsel for the petitioner that no overt act has been done by the 1st accused to forcibly rescue the 2nd accused from the custody of the Amin and the oral incitement or instigation alone would not be sufficient to constitute the offence of rescuing from custody made punishable under S. 225-B, IPC. There is considerable force in this argument. As stated in the commentaries in Court's Penal Law, "The word `rescue' has not been defined in the Code, but it is evidently used in the sense it has been used in English Law, as implying the act of forcibly freeing a person from custody against the will of those who have him in custody. Assisting another to escape from lawful custody is, in short, rescuing him. Rescue implies intention and the use of violence to effect the object desired."
Therefore rescuing would certainly indicate some positive overt act on the part of the accused by which the liberation of the person arrested is effected. Whether there is any such act done by the accused in a particular case would depend on the facts of each CRRP 1643/2006 20 case.
16. In this case the allegation made by the prosecution throughout has been that the petitioner only instigated the 2nd accused to escape and in consequence of that he escaped from custody. So the offence committed by the 1st accused is really abetment of escape by the 2nd accused, an offence punishable under S. 225-B read with S. 109, IPC. The petitioner, no doubt, has not been specifically charged with abetment, but has only been charged with the substantive offence under S. 225-B. A question therefore arises whether without the specific charge of abetment he could be convicted of such an offence.".
11. In State of Kerala v. Devassy [AIR 1962 Ker. 258], this Court also held that:
"10. A warrant for arrest must be issued to some person for execution and where no name or description, of that person is given in the warrant the person arrested can have no knowledge that the person who presents: the warrant and demands the CRRP 1643/2006 21 payment of the decree amount and arrest him in default is legally authorised to do so. It may be that the person who is arrested is unable to read the warrant or had no knowledge as to whether the warrant is or is not properly filled up, but it is the duty of the Court to issue a warrant in proper form and when the warrant is incomplete it has been held that no offence under S. 225-B is made out.
11. In Jagannath v. Emperor (A.I.R. 1932 All. 227) a warrant was issued to the Nazir and the Nazir without any endorsement made it over to a subordinate official and it was held that the warrant was defective and did not authorise the person, to arrest and accordingly an escape from custody in such a case is no offence. This case has been followed in a later decision of the same High Court in Fattu v. Emperor (A.I.R. 1932 All. 692). It is, therefore, extremely doubtful whether the arrest of the judgment-debtor-accused by Pw. 2 could be said to be a lawful arrest."
12. The serious lapses on the part of the Amin in executing the warrant as provided under law are so CRRP 1643/2006 22 conspicuous and glaring . The Amin gets the legal authority only when he reaches the place of address mentioned in the warrant. Then only it could be verified, whether there was resistance or illegal obstruction to prevent lawful apprehension on failure to pay the decree debt demanded by the Amin. Admittedly, the Amin had no case that the accused is a person to whom he had previous acquaintance enabling to identify him. The Amin also had no case that the officials of the decree holder /bank had accompanied him to a different place than what is mentioned in the warrant to execute the warrant. So no doubt, it could correctly be held that PW1 had proceeded to a place which is known to him only, and he had not visited the place where the address had been specifically furnished in the warrant so as to discharge his duty legally as entrusted by the Munsiff. The learned Munsiff also did not verify before forwarding the complaint, whether the Amin entrusted by him had proceeded to the address furnished by the decree CRRP 1643/2006 23 holder to execute the warrant legally . The attitude of the Munsiff in handling the case is less than causal. The evidence on records is not convincing to prove that the Amin performed the duties imposed upon him legally. Such being the case, I have no hesitation to conclude that there was no proper and reasonable appreciation of evidence by both the courts. In this backdrop, I find it difficult to conclude that the finding and conclusion recorded by the courts do not suffer from any error. So in short ,the case against the accused is not proved beyond reasonable doubt and hence conviction and sentence entered by the learned Judicial First Class Magistrate and the conviction confirmed and the sentence enhanced by the learned Additional Sessions Judge are liable to be set aside as illegal and irregular and I do so.
Accordingly, the revision petition is allowed. The conviction and sentence passed against the revision petitioner/accused are set aside and he is acquitted of the CRRP 1643/2006 24 charges levelled against him. The bail bonds of the revision petitioner, who is on bail, stands discharged.
Sd/-
SHIRCY V., JUDGE ks True copy P.S.TO JUDGE