Kerala High Court
Sandeep Saj vs State Of Kerala on 29 November, 2016
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938
Bail Appl..No. 8426 of 2016 ()
-------------------------------
CRIME NO.269/2016 OF THRIKKUNNAPPUZHA POLICE STATION,
ALAPPUZHA DISTRICT.
..........
PETITIONER/ACCUSED A1:
----------------------
SANDEEP SAJ,
AGED 20 YEARS, S/O.KAVITHA,
ANJANEYAM VEEDU,
POTHAPPALLY NORTH MURI,
KUMARAPURAM VILLAGE,
ALAPPUZHA DISTRICT
BY ADV. SRI.K.V.ANIL KUMAR
RESPONDENT/COMPLAINANT:
----------------------
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682031.
BY PUBLIC PROSECUTOR SRI.SAJJU.S
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 29-11-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
mbr/
P.UBAID, J.
~~~~~~~~~~
B.A No. 8426 of 2016
~~~~~~~~~~~
Dated this the 29th November, 2016
O R D E R
The petitioner herein is the first accused in Crime
No.269 of 2016 of the Thrikkunnapuzha Police Station,
registered under Sections 323, 324 and 308 read with
Section 34 of the Indian Penal Code. He seeks regular bail
under Section 439 of the Code of Criminal Procedure. The
petitioner has been in judicial custody since 14 10.2016.
2. The prosecution case is that about 8.15 p.m on
20.2.2016, this petitioner and the other co-accused Nos.2
and 3 assaulted the de facto complainant on political
grounds and inflicted simple and grievous injuries on his
body with weapon with the knowledge of consequence that
the injuries may cause death. It is submitted that the
accused Nos.2 and 3 are now on regular bail.
3. This application for regular bail is opposed by the
learned Public Prosecutor on the ground that investigation
is still in progress, and that if the accused is now released,
he will definitely obstruct the investigation.
4. On hearing both sides, and on a perusal of the
B.A No. 8426 of 2016
2
materials including the case diary and the report of the
investigating officer, I find that the petitioner can be now
released on appropriate conditions. I find that the
Investigating Officer has already collected the necessary
materials for a prosecution. I do not find the necessity of
continued detention of the petitioner in custody. However,
some reasonable conditions for bail are felt necessary in the
particular facts and circumstances.
In the result, this application for bail is allowed. The
petitioner will be released on bail on his executing a bond
with two solvent sureties for 50,000/- (Rupees Fifty
thousand only) each to the satisfaction of the learned
Magistrate having jurisdiction. Bail is granted on condition
that;
a. The petitioner shall report before the
Investigating Officer between 10.00 am and 11
a.m on all Mondays for a period of two months.
b. The petitioner shall not leave the
jurisdictional limits of the Thrikkunnapuzha Police
Station for two months.
B.A No. 8426 of 2016
3
c. The petitioner shall not in any manner
influence or intimidate the witnesses and shall
not have any contact with the material witnesses
directly or over telephone or otherwise.
Sd/-
P.UBAID
JUDGE
ma
/True copy/
P.S to Judge
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY,THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938
Crl.Rev.Pet.No. 167 of 2004 (D)
--------------------------------
AGAINST THE ORDER IN SC 431/2001 of ADDL.SESSIONS COURT (ADHOC)-II,
THODUPUZHA DATED 05-01-2004
------------------------------------
REVISION PETITIONER/ACCUSED::
--------------------------------------------------
N.I.NINAN @ RENJI NINAN,
S/O. ISSAC NINAN, MALAYA COLLEGE,
NEAR BEST HOTEL, K.K. ROAD, KOTTAYAM.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENT/COMPLAINANT::
----------------------------------------------
CIRCLE INSPECTOR OF POLICE,
NEDUNGADAM, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SMT.V.P.SATHI
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-
06-2016, ALONG WITH CRRP. 185/2004, CRRP.189/2004, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
STK
P.D. RAJAN, J.
-------------------------
Crl. R.P. No.167, 185 & 189 of 2004
----------------------------------------------
Dated this the 20th day of June, 2016
ORDER
These revision petitions are preferred by the accused challenging the orders in Crl.M.P.No.2986/2003 in S.C.No.431/2001, Crl.M.P.2985/2003 in S.C.378/2001 and Crl.M.P.2984/2003 in S.C.379/2001 of the Additional Sessions Judge (Adhoc)-II, Thodupuzha.
2. In S.C.431/2001 the charge against the accused is that he pretended to be a qualified post graduate Doctor with M.B.B.S., M.D. and DIPNB (Neurology). While working at Karuna Hospital, Nedumkandam as a Physician, on 04.05.99 at 6.30 p.m., he treated one Gopalan Nair for coronary disease and subsequently, he died on 05.05.99 on account of the treatment and thereby committed the offence punishable under Sections 420, 419 & 304 IPC. The Nedunkandam Police registered the crime and after completing investigation, Circle Inspector of Police, Crl. R.P. No.167, 185 & 189 of 2004 2 Nedunkandam filed a final report in the Judicial First Class Magistrate, Nedunkandam and from there, the case was committed to Sessions Court. Subsequently it was made over to Addl. Sessions Court for trial, where the learned Sessions Judge framed a charge.
3. In S.C.378/2001 the charge is that, on 16.05.99 at 4.30 a.m., accused treated Dr.Jose Kurian. Subsequently he died on account of the treatment and thereby committed offence under Section 304, 419, 420 and 465 IPC. The Nedunkandam Police registered a crime and after completing investigation, Circle Inspector of Police, Nedunkandam filed a final report in the Judicial First Class Magistrate, Nedunkandam and from there, the case was committed to Sessions Court. Subsequently, it was made over to Additional Sessions Judge-II, Thodupuzha for trial, where the learned Sessions Judge framed a charge.
4. In S.C.379/2001 the charge is that on 9.5.99, at 12 O'clock, accused admitted one Karunakaran Pillai, father of one Madusoothanan Pillai and treated in the Crl. R.P. No.167, 185 & 189 of 2004 3 hospital due to chest pain and removed him to intensive coronary unit and subsequently on 15.05.99 at 4.20 p.m., he died and thereby committed an offence punishable under Sections 304, 419, 420 IPC. The Nedunkandam Police registered a crime and after completing investigation, Circle Inspector of Police, Nedunkandam filed a final report in the Judicial First Class Magistrate, Nedunkandam and from there, the case was committed to Sessions Court. Subsequently it was made over to Additional Sessions Judge-II, Thodupuzha. In this context, accused filed the Crl.M.P.2986/2003, Crl.M.P.2985/2003, and Crl.M.P.2984/2003 under Section 227 of the Code of Criminal Procedure, which was dismissed by the learned Magistrate. Being aggrieved by that, accused approached this Court.
5. Section 227 of the Cr.P.C. reads as follows:
"227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his Crl. R.P. No.167, 185 & 189 of 2004 4 reasons for so doing."
6. Section 228 of the Cr.P.C. says about framing of charge, it reads as follows;
"228. Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate (or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate) shall try the offence in accordance with the procedure for trial of warrant-cases instituted on a police report;
(b)is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) where the Judge frames any charge under clause (b) of sub-
section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
7. The purpose of the Section 227 and 228(1) of the Code of Criminal Procedure is that the Court should be satisfied that there is material for proceeding against the accused and the accusation made against him is not a frivolous one. Therefore, the stage prior to the framing of Crl. R.P. No.167, 185 & 189 of 2004 5 charge is important, since the Judge has to scrutinise the details of all materials produced by the prosecution. In this backdrop Section 227 and 228 are interrelated and analyse together in a sessions trial, when the accused appears in pursuance of commitment of the case, the Public Prosecutor shall open his case by describing the charge against the accused and stating by what evidence he is proposing to prove the guilt of the accused. If upon the consideration of the documents submitted and after hearing the submission of the accused and prosecution, if the judge considers that there is no sufficient materials or ground to proceed against the accused, he shall discharge the accused and record the reason for doing so. If after consideration and hearing of the accused, the judge is of the opinion that there is ground for believing that the accused has committed an offence which is exclusively triable by Court of Sessions, he may frame a charge on the accused and try such offence in accordance with the procedure. If the charge is framed, it shall be read and Crl. R.P. No.167, 185 & 189 of 2004 6 explained to the accused and asked whether he pleads guilty of the offence charged and claims to be tried. These procedures are properly offered by the learned Sessions Judge at the time of framing charge in all the three cases.
8. While considering the question of framing charge, it is clear that the Code ensure that the court should be satisfied that the accusation made against the accused is not a trivial one and has power to sift and weigh the materials for proceeding against him. It is not obligatory on the part of the court to explain the reason for its framing charge. While exercising the power of framing charge by a Sessions Judge, the court has undoubted power to analyse the materials for the limited purpose of finding out a prima facie case against the accused or not. At that stage, the accused has an active role to highlight all the points in support of his discharge and he has to place all aspect before Judge. For determining the prima facie case against the accused, the Judge would naturally Crl. R.P. No.167, 185 & 189 of 2004 7 depend upon the facts and circumstances of the case alone. The standard of trust and proof is that, the Judge has to apply his mind for arriving at a conclusion for making out the case projected by the Public Prosecutor.
9. The Apex Court in Union of India v. Prafulla Kumar Samal, [(1979)3 SCC Crl. 609] held that;
"The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. By and large however, if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused."
10. Apex Court in another decision, West Bengal V. Anil Kumar Bhunja & Ors.(1979) SCC Crl.1038 held that, if any strong suspicion found on the materials on record which laid a presumptive opinion to the existence of factual ingredients constituting the offence alleged, may justify the framing of charge against the Crl. R.P. No.167, 185 & 189 of 2004 8 accused in respect of the commission of that offence.
11. I have gone through the facts highlighted by the learned counsel appearing for the petitioner. No circumstances were bought out to show any illegality or irregularity or omission committed by the Sessions Judge at the time of framing charges in these three cases. When an offence is exclusively triable by the Court of Sessions and a charge has been framed in writing against the accused under Section 228 (1), it shall be read over and explained to the accused and he shall be asked whether he pleads guilty or not, which was also complied in this case. However necessary facts were complied by the Trial Judge, I find no default in reading out or explaining the charge against the accused for vitiating the procedure followed by the learned Judge.
12. When no circumstances are highlighted by the learned counsel, with regard to non-compliance of any of the procedure, which has resulted in prejudice to the accused, I can say that there is no illegality or irregularity Crl. R.P. No.167, 185 & 189 of 2004 9 in framing of charge. There is no merit in these revision petitions and are dismissed accordingly. The petitioner is directed to appear in the trial court forthwith and the learned Sessions Judge is directed to expedite trial as per law.
These revision petitions are disposed of as above.
sd/-
P.D. RAJAN,
STK JUDGE
//TRUE COPY//
//P.A. TO JUDGE//
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938 Crl.Rev.Pet.No. 402 of 2012 ()
-------------------------------
CRA 474/2007 of I ADL.D.C., THIRUVANANTHAPURAM CC 165/2005 of C.J.M.,THIRUVANANTHAPURAM REVISION PETITIONER/APPELLANT/ACCUSED:
--------------------------------------------------------
P.H.RASHEED KHAN SENIOR ASSISTANT, (FIRE CONTROL), AIRPORT AUTHORITY OF INDIA (IAD), THIRUVANANTHAPURAM.
BY ADV. SRI.C.K.MOHANAN RESPONDENTS/RESPONDENTS/COMPLAINANT:
---------------------------------------------------------
1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
2. CHRISTOPHER J.
T.C.35/730, SREE CHITRA NAGAR, VALLAKKADAVU P.O., THIRUVANANTHAPURAM.
R2 BY SRI.R.V.SREEJITH (AMICUS CURIAE) R1 BY PUBLIC PROSECUTOR, SHRI RAMESH CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
- - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.402 of 2012
- - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - -
Dated this the 25th day of October 2016 O R D E R The revision petitioner was convicted and sentenced under Section 420 I.P.C.by the courts below concurrently.
2. The learned counsel Sri.C.K.Mohanan has submitted that he is not prepared to argue the matter, as he has no instructions from the revision petitioner. Therefore, this court appointed Adv.Sri.P.Sethu Madhavan as the amicus curiae to argue the case for the revision petitioner.
3. Heard the learned amicus curiae and the learned Public Prosecutor.
Crl.R.P.402/2012 2
4. The prosecution allegation is that the revision petitioner signed the cheque of DW2 and issued the same to PW1 towards the discharge of the liability of the revision petitioner in connection with the borrowing of an amount of Rs.50,000/- by him from PW1. The said cheque was dishonoured when presented for encashment as the signature of the drawee was different. Later on, it was realised that the revision petitioner signed the cheque belonging to DW2.
5. Before the trial court, PW1 to PW3 were examined and Exts.P1 to P12 and C1 to C5 were marked for the prosecution. DW1 and DW2 were examined for the revision petitioner.
6. The evidence of PW1, DW1 and DW2 would show that Crl.R.P.402/2012 3 Ext.P1 cheque was drawn from the account of DW2. PW1 clearly stated that the revision petitioner put signature on Ext.P1 cheque in the presence of PW1. The said part of the evidence of PW1 is supported by the evidence of PW3 as well. The courts below correctly appreciated the oral and documentary evidence adduced by the parties and concurrently found that the revision petitioner committed the offence under Section 420 I.P.C., repelling the contentions of the revision petitioner. No material has been brought to the notice of this court to indicate that the appreciation of evidence or the concurrent finding by the courts below was perverse or incorrect. In the said circumstances, the concurrent finding by the courts below that the revision petitioner commited the offence under Crl.R.P.402/2012 4 Section 420 I.P.C., does not warrant any interference by this court.
7. As regards the sentence, the learned amicus curiae has pleaded for leniency stating that the transaction in this case was only a transaction in the nature of Section 138 of the N.I. Act. The revision petitioner is not involved in any other offence of similar nature. The revision petitioner was aged 50 years during the relevant period. Presently, he is aged 60 years. Considering the facts and circumstances of the case, I am of the view that the sentence awarded by the courts below can be modified and reduced to imprisonment till the rising of the court and a compensation of Rs.55,000/- (Rupees fifty five thousand only) and in default to simple imprisonment for two months under Crl.R.P.402/2012 5 Section 420 I.P.C., to secure the ends of justice.
Accordingly, I order so. In the event of realisation of the compensation, the entire amount shall be given to PW1 under Section 357(3) Cr.P.C.
In the result, this revision petition stands allowed in part as above.
The revision petitioner shall surrender before the trial court on 14.12.2016 to suffer the sentence.
Sd/-
B.SUDHEENDRA KUMAR, JUDGE dl/.26.12..2016 // True Copy // PAto Judge