Kerala High Court
Dileep Kumar vs State Of Kerala on 20 January, 2016
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939
OP(Crl.).No. 308 of 2017 (Q)
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ST 11/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- II,
CHANGANACHERRY.
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PETITIONER/ACCUSED:
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DILEEP KUMAR, AGED 40 YEARS,
S/O.K.R DIVAKARAN, C.D WORLD,
MANCHERIL PLAZA,
NEAR PERUNNA BUS STAND NO.2,
PERUNNA P.O, CHANGANACHERRY,
KOTTAYAM DISTRICT, PIN - 686 102.
BY ADVS.SRI.ABU MATHEW
SRI.AJU MATHEW
RESPONDENTS/STATE AND COMPLAINANT:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI - 682 031
2. PIOUS SEBASTIAN, AGED 47 YEARS,
S/O.SEBASTIAN, MUKKADAN HOUSE,
KURISUMOOD P.O, CHANGANASSERY,
KOTTAYAM DISTRICT, PIN - 686 104.
BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 30-06-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP(Crl.).No. 308 of 2017 (Q)
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APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 : TRUE COPY OF THE COMPLAINT IN S.T NO 11 OF 2015 ON
THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO II,
CHANGANASSERY.
EXHIBIT P2 : CERTIFIED COPY OF THE PETITION FOR CORRECTION FILED
AS C.M.P NO 207 OF 2016 IN S.T NO 11 OF 2015 ON THE
FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT
NO II, CHANGANASSERY
EXHIBIT P3 : CERTIFIED COPY OF THE PETITION FILED UNDER SECTION
265A CR.P.C IN S.T NO 11 OF 2015 ON THE FILE OF THE
JUDICIAL FIRST CLASS MAGISTRATE COURT NO.II,
CHANGANACHERY.
EXHIBIT P4 : CERTIFIED COPY OF THE MUTUALLY SATISFACTORY
DISPOSITION STATEMENT FILED UNDER SECTION 265C IN
S.T NO 11 OF 2015 ON THE FILE OF THE JUDICIAL FIRST
CLASS MAGISTRATE COURT NO. II, CHANGANACHERRY.
EXHIBIT P5 : CERTIFIED COPY OF THE JUDGMENT DATED 20-01-2016 IN
S.T NO 11 OF 2015 ON THE FILE OF THE JUDICIAL FIRST
CLASS MAGISTRATE COURT NO II, CHANGANASSERY.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
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ALEXANDER THOMAS, J.
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O.P(Crl).No.308 Of 2017
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Dated this the 30th day of June, 2017.
J U D G M E N T
The petitioner is the accused for the offence punishable under Sec.138 of the N.I.Act in S.T.No.11/2015 on the file of the Judicial First Class Magistrate Court-II, Changanassery, instituted on the basis of the complaint filed by R-2 herein. Ext.P-1 is the copy of the impugned complaint. It appears that both sides have availed plea bargaining as envisaged in Chapter XXIA of the Cr.P.C and the trial court convicted and sentenced the petitioner to pay compensation of Rs.2,30,000/- to the 2nd respondent-complainant within a period of 11 months from Ext.P-5 judgment dated 20.1.2016 passed in the complaint, which led to S.T.No.11/2015. Ext.P-5 is the copy of the impugned judgment dated 20.1.2016, which was passed by the trial court in view of the provisions contained in Chapter XXIA of the Cr.P.C relating to plea bargaining.
2. It is the contention of the petitioner that the impugned Ext.P-5 judgment passed by the trial court in accepting the plea bargaining is in gross violation of the mandatory provisions contained in Sec.265B(4) of the Cr.P.C and Sec.265(D) of the Cr.P.C. It is pointed out that the mandatory provisions contained in Sec.265B(4) of the ::2::
O.P(Crl).No.308 Of 2017 Cr.P.C has been violated inasmuch as the in camera examination of the accused has been done without the presence of the complainant. Further that the statutory report regarding mutual satisfactory disposition under Sec.265D has also not been resorted to by the trial court before passing Ext.P-5 judgment. Ext.P-3 is the copy of the petition under Sec.265A of the Cr.P.C in the above complaint for availing plea bargaining process. Ext.P-4 is the copy of the statement regarding mutual satisfactory disposition filed by the parties under Sec.256C of the Cr.P.C., etc. It is in the light of these aspects, the petitioner has filed the instant Original Petition by invoking the visitorial jurisdiction vested with this Court under Article 227 of the Constitution of India. The prayers in this Original Petition are as follows:
"a) Call for records and files leading to Exhibit P5 judgment in S.T.No.11 of 2015 on the file of the Judicial First Class Magistrate Court No.II Changanassery.
b) Issue an order setting aside Exhibit P5 judgment of sentence passed in S.T.No.11 of 2015 on the file of the Judicial first Class Magistrate Court No.II Changanassery.
c) Issue an order or stay of all further proceedings pursuant to Exhibit P5 judgment passed in S.T.No.11 of 2015 on the file of the Judicial First Class Magistrate Court No.II Changanassery.
d) Grant such other and further reliefs as are deemed just and necessary including the costs of this proceedings."
3. This Court while admitting this Original Petition had ordered notice to R-2 complainant by speed post returnable within 2 ::3::
O.P(Crl).No.308 Of 2017 weeks. Though notice has been duly served on that party, there is no appearance for R-2.
4. Heard Sri.Abu Mathew, learned counsel for the petitioner and Sri.Jestin Mathew, learned Prosecutor appearing for R-1 State.
5. This Court in the judgment in Joseph v. State of Kerala reported in 2015 (4) KLT 364, Joseph P.J v. State of Kerala & anr. reported in 2015 (5) KHC 586 and Bala Dandapani v. State of Kerala reported in 2016 (1) KLT 117 has held that the provisions contained in Chapter XXIA of the Cr.P.C relating to plea bargaining process are mandatory and more particularly the provisions contained in Sec.265B(4) contained in Chapter XXIA of the Cr.P.C which mandates that in camera examination of the accused should be conducted by the trial court without the presence of the complainant is mandatory and that failure to conduct such in camera examination of the accused in order to convince the trial court that the plea bargaining has been entered into by the accused fully voluntarily, etc., would vitiate the decision making process in that regard.
6. This Court while passing order dated 31.5.2017 had also directed the Registry to get a report from the trial court as to whether the mandatory in camera examination of the accused without the presence of the complainant as mandated under Sec.265B has been ::4::
O.P(Crl).No.308 Of 2017 conducted in this case and also as to whether statutory report on the mutual satisfactory disposition has been rendered by the trial court in compliance with the provisions contained in Sec.265D of the Cr.P.C, etc. In compliance with the said order, the trial court concerned has issued a report dated 9.6.2017 stating inter alia as follows:
"This Court was directed by the Hon'ble High Court vide order in reference, sub submit a report as to whether mandatory incamera examination of the accused without the presence of the complainant has been conducted in this case by this court and also as to whether the statutory report on the mutually satisfactory deposition has been rendered by this court.
On 07/01/2016, the learned counsel for the accused submitted that the accused intends to file petition for plea bargaining within five days. On 14/01/2016, the accused filed petition vide CMP No.9/16 which is accompanied by the affidavit of the accused. The complainant and accused filed mutually satisfactory disposition on the said day. I have recorded the sworn statement of the accused on 14/01/2016. He stated that the matter was settled and all the facts stated in the agreement are correct. He stated that the signature in the agreement was put by him and he understood the facts stated therein. As I was satisfied that the mutually satisfactory disposition was arrived voluntarily by both the parties especially the accused, the application was allowed and judgment was pronounced on 20/01/2016.
I may further humbly submit that the statement of the accused was not recorded in-camera and on 14/01/2016, the date on which the statement was recorded, the complainant was present. I may further submit that no separate statutory report on mutually satisfactory disposition was prepared in this case.
The entire case records are submitted herewith for the kind consideration as directed by the Hon'ble High Court."
Further it is also stated in the said report that the statement of the accused was not recorded in in camera and that on 14.1.2016, the date on which the statement was recorded, the complainant was present. Further it is also stated that no statutory report on the mutually satisfactory disposition was prepared in this case. The lower court ::5::
O.P(Crl).No.308 Of 2017 records were also made available for perusal of this Court and these aspects are discernible from a perusal of the lower court records in this case. Accordingly, the petitioner is entitled to succeed inasmuch as the mandatory provisions contained in Sec.265B(4) and Sec.265D of Chapter XXIA of the Cr.P.C has been breached in the issuance of Ext.P-5 judgment. In this view of the matter, Ext.P-5 judgment is set aside. The complaint will stand remitted to the trial court for disposal from the stage where it had reached immediately prior to the plea bargaining process.
7. Having regard to the fact that the complaint was instituted in the year 12.4.2013, the trial court may endeavour to see that the trial process is expedited and completed without much delay, at any rate, within a period of 4-5 months from the date of production of a certified copy of this judgment. The Registry will forward a copy of this judgment along lower court records to the trial court for further necessary action.
With these observations and directions, the Original Petition (Criminal) stands disposed of.
ALEXANDER THOMAS, Judge.
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