Kerala High Court
Sethulal vs State Of Kerala on 5 December, 2024
2024:KER:92328
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 5TH DAY OF DECEMBER 2024/14TH AGRAHAYANA,
1946
CRL.REV.PET NO.571 OF 2022
CRIME NO.3(S)/2013 OF CENTRAL BUREAU OF INVESTIGATION,
THIRUVANANTHAPURAM
TO SET ASIDE THE ORDER PASSED IN CRL.M.P.No.95/2021 IN S.C
NO.629 OF 2014 OF 3RD ADDITIONAL SESSIONS JUDGE/SPECIAL
JUDGE (SPE/CBI), ERNAKULAM
REVISION PETITIONER/APPELLANT/ACCUSED:
SETHULAL, AGED 53 YEARS, S/O.ARAVINDHAKSHAN,
ANDUTHURUTHIYIL HOUSE, ASHA NAGAR,
LOKAMALESWARAM KARA, KODUNGALLOOR,
THRISSUR, PIN - 680664.
BY ADVS.
S.RAJEEV
V.VINAY
M.S.ANEER
SARATH K.P.
PRERITH PHILIP JOSEPH
RESPONDENT/RESPONDENT/COMPLAINANT/STATE:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
*ADDL.R2 CENTRAL BUREAU OF INVESTIGATION,
REP BY ASG, HIGH COURT OF KERALA,
ERNAKULAM - 682 031
*IS IMPLEADED AS ADDITIONAL R2 AS PER ORDER
DATED 05/06/2023 IN CRL M.A 3/22 IN CRL.R.P
571/22.
Crl.R.P.No.571 of 2022
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2024:KER:92328
BY ADV.
SREELAL N.WARRIER, SPL.PUBLIC PROSECUTOR,
CENTRAL BUREAU OF INVESTIGATION (CBI)
DR.K.P.SATHEESAN (SR.)
K.SUDHINKUMAR
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 05.12.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.R.P.No.571 of 2022
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2024:KER:92328
O R D E R
Dated, this the 5th day of December, 2024 The petitioner herein is the 5th accused in S.C.No.629/2014 pending before the 3rd Additional Sessions Judge/Special Judge (S.P.E/C.B.I)-I, Ernakulam. The petitioner impugns an Order dated 20.01.2022, which dismissed an application preferred by the petitioner under Section 239 Cr.P.C.
2. Heard the learned counsel for the petitioner and the learned Special Public Prosecutor (C.B.I). Perused the records.
3. The solitary point, which was urged before this Court, was the one based on a plea of issue estoppel. Learned counsel would submit that as per Annexure-1 judgment in S.C. No.503/2016, facts which form part of the same transaction have been adjudicated and the accused was found guilty and convicted. Although the offences in Annexure-1 Sessions Case Crl.R.P.No.571 of 2022
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2024:KER:92328 (S.C.No.503/2016) were under Section 120 B, read with Sections 342, 343, 365, 366, 376 and 420 of the Penal Code; and Sections 3(1), 4(1), 5(1) and 6(1) of the Immoral Traffic (Prevention) Act, 1956, the question as to the illegal use of forged passport was also a subject matter in that Sessions Case. Dehors, the same having been taken note of by the learned Sessions Judge, no conviction has been made in that Sessions Case, wherefore, the present trial in S.C. No.629/2014 in respect of offences under Sections 419, 468 and 471, read with Section 34 of the Penal Code, and also, under Section 12(1)(d) of the Passports Act, cannot proceed, is the contention urged.
4. The contention was seriously opposed by the learned Public Prosecutor. It was pointed out that, to constitute issue estoppel, there was no issue/charge framed in Annexure- 1 judgment, which pertains to the illegal use and forgery of the passport, wherefore, the question of issue estoppel does'nt arise at all, is the submission. Crl.R.P.No.571 of 2022
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2024:KER:92328
5. Having heard the learned counsel appearing for the respective parties, this Court finds little merit in the instant revision. This Court perused Annexure-1 judgment in S.C.No.503/2016. In paragraph no.3, where the prosecution case is stated, the learned Sessions Judge took note of the prosecution allegation of usage of a forged passport issued in the name of Mrs.JM, utilising which, Ms.M had travelled from Muscat to Mumbai by substituting the photographs and impersonating herself. The learned Judge also took stock of the fact that a separate crime has been registered in respect of the alleged forged use of passport, vide crime no.835/2012 on 06.07.2012 at the Nedumbassery Police Station. It is thereafter, based on a subsequent disclosure made by the accused in crime no.835/2012 that the subsequent crime, namely crime No.726/CR/OCW-II/EKM/2012 was registered by C.B.C.I.D, Ernakulam on 07.09.2012 for offences under Sections 341, 342, 363, 365, 366, 368, 376, 377, 420, read with Section 34 of Penal Code. The case was taken over by the C.B.I from C.B.C.I.D and that crime was registered as Crl.R.P.No.571 of 2022
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2024:KER:92328 R.C.Nos.4(S)2013/CBI/SCB/TVPM & RC5(S)2013/CBI/SCB/TVPM. It is in this crime that Annexure-1 judgment has been rendered by the learned Sessions Judge. This Court has also perused the charges framed in Annexure-1 judgment, wherein no charge is seen framed in respect of the offences under the Passport Act, or for that matter, the forgery of the passport.
6. It is thus clear that the issue with respect to forgery of the passport, as also, violation of the Passports Act was not the subject matter in Annexure-1 judgment. No issue/charge was framed in respect of the same in Annexure-1 judgment. Therefore, the question of issue estoppel does not arise at all. This Court takes note of the judgment of the Hon'ble Supreme Court in Ravinder Singh v. State of Haryana [1975 (3) SCC 742], wherein the principle of issue estoppel has been dealt with by quoting the words of Dixon, J. in King v. Wilkes, [77 CLR 511] at page no.518, which is extracted here below:
"...Whilst there is not a great deal of authority upon the subject, it appears to me Crl.R.P.No.571 of 2022
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2024:KER:92328 that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright J. in R. v. Ollis, which in effect I have adapted in the foregoing statement. Such a question must rarely arise because the conditions can seldom be fulfilled which are necessary before an issue estoppel in favour of a prisoner and against the Crown can occur. There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner...."
Based on the above extracted portion, it was held by the Hon'ble Supreme Court in paragraph no.19 of the judgment that in order to invoke the rule of issue estoppel, it is not enough that the parties in the two trials are same, but also the fact-in-issue proved or not in the earlier trial must be identical with what is sought to be re-agitated in the Crl.R.P.No.571 of 2022
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2024:KER:92328 subsequent trial. The above yardsticks are not satisfied in the instant facts, with the result, this Crl.R.P. will stand dismissed.
Sd/-
C.JAYACHANDRAN, JUDGE ww Crl.R.P.No.571 of 2022
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2024:KER:92328 APPENDIX OF CRL.REV.PET 571/2022 PETITIONER'S ANNEXURES:
ANNEXURE 1 THE TRUE COPY OF THE JUDGMENT DATED 24.02.2018 IN SC NO.503 OF 2016 IN THE COURT OF THE SPECIAL JUDGE (SPE/CBI)-I/ III ADDL.SESSIONS JUDGE, ERNAKULAM.