Kerala High Court
Revision vs By Advs.Sri.S.Prasanth on 16 March, 2017
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938
Crl.Rev.Pet.No. 1388 of 2014 ()
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(AGAINST THE ORDER/JUDGMENT IN CMP 2381/2007 of J.M.F.C.-II,
KANJIRAPPALLY CRIME NO. 109/2006 OF PONKUNNAM POLICE STATION ,
KOTTAYAM)
REVISION PETITIONER(S)/RESPONDENTS/COMPLAINANT
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SALIN C. NARAYANAN, AGED 46,
S/O.NARAYAN NAIR, CHORIYANMAKKALL HOUSE, ELIKKULAM
VILLAGE, KOTTAYAM DIST.
BY ADVS.SRI.S.PRASANTH
SRI.JAGADEESH LAKSHMAN
RESPONDENT(S)/PETITIONERS/ACCUSED/STATE:
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1. ANIL KUMAR, S/O.RAMAKRISHNAN NAIR,
PADINJAREL VEETTIL, URALIKUNNAM KARA, ELIKULLAM
VILLAGE, KANJIRAPPALLY - 686 577
2. PRASAD,
S/O.PRABHAKARAN NAIR, MULLOORL VEETTIL, URULIKUNNAM
KARA, ELIKULAM VILLAGE, KANJIRAPPALLY - 686 577
3. PRASAD.J,
S/O.ANIL KUMAR, VILLANICKAL VEETTIL, URULIKUNNAM KARA,
ELIKULAM VILLAGE, KANJIRAPPALLY - 686 577
4. SATHEESH,
S/O.SANKARA PANICKER, EDACHERIYATHU VEETTIL,
ELIKULAM VILLAGE, KANJIRAPPALLY - 686 577
5. PRADEEP,
S/O.BHASKARAN NAIR, VAZHAPILLIL VEETTIL,
ELIKULAM VILLAGE, KANJIRAPPALLY - 686 577
6. PRASAD,
S/O.PARAMESWARAN NAIR, THAZHATHEL VEEDU,
URULIKUNNAM KARA, ELIKULLAM VILLAGE,
KANJIRAPPALLY - 686 577
7. RAVEENDRAN NAIR,
S/O.KRISHNAN NAIR, ORATHAPPANKUNNEL VEETTIL,
URULIKUNNAM KARA, ELIKKULAM VILLAGE, KANJIRAPPALLY
686 577
8. MADHU,
S/O.RAGHAVAN NAIR, PUTHANPURACKAL VEETTIL,
URULIKUNNAM KARA, ELIKULLAM VILLAGE,
KANJIRAPPALLY - 686 577
9. THANKAPPAN NAIR,
S/O.MADHAVAN NAIR, PENDANATHU VEETTIL,
URULIKUNNAM KARA, ELIKULLAM VILLAGE,
KANJIRAPPALLY - 686 577
10. JAYAKUMAR,
S/O.BHASKARAN NAIR, THOTTUNGAL VEETTIL,
URULIKUNNAM KARA, ELIKULLAM VILLAGE,
KANJIRAPPALLY - 686 577
11. ABHILASH,
S/O.PURUSHOTHAMAN NAIR, ONATHAPPAN KUNNEL VEEDU,
URULIKUNNAM KARA, ELIKULLAM VILLAGE,
KANJIRAPPALLY - 686 577
12. HARIDAS,
S/O.NARAYANAN NAIR, PUTHAMPARAMBIL VEETTIL,
URULIKUNNAM KARA, ELIKULLAM VILLAGE,
KANJIRAPPALLY - 686 577
13. SHIBU,
S/O.BHASKARAN NAIR, VILLANICKAL VEETTIL,
URULIKUNNAM KARA, ELIKULLAM VILLAGE,
KANJIRAPPALLY - 686 577
14. RAJESH,
S/O.BHASKARAN NAIR, VILLANICKAL VEETTIL,
URULIKUNNAM KARA, ELIKULLAM VILLAGE,
KANJIRAPPALLY - 686 577
15. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA - 682 031
(CR.NO.109/2006 OF PONKUNNAM POLICE STATION).
R15 BY ADV. PUBLIC PROSECUTOR T.R.RANJITH
R1-14 BY ADV. SRI.M.S.RADHAKRISHNAN NAIR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 31-01-2017, THE COURT ON 16/3/2017 PASSED THE FOLLOWING:
SUNIL THOMAS, J.
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Crl.R.P.No.1388 of 2014
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Dated this the 16th day of March, 2017
O R D E R
The complainant, aggrieved by the order in Crl.M.P.No.848/2011 of the Additional Sessions Court in SC No.363/2010, challenges the legality, propriety and correctness of the order under section 227 of Cr.P.C.
2. The defacto complainant alleged that, on 22/8/2005 at about 11.30 p.m. all the accused trespassed into the office and go down building of one Sangam, of which the complainant is the President, and committed dacoity. It was alleged that, they criminally intimidated the defacto complainant and others by brandishing knife and dagger. They committed several acts, resulting in loss of Rs.2 Lakhs to the Sangam. Thereafter, the complaint was laid which was forwarded under Section 156(3) of Cr.P.C. by the learned Magistrate to the police. Crime No.109/2006 was registered and after investigation, refer report was filed. The protest complaint was preferred by the complainant which was accepted and after committal proceedings, the matter came before the Sessions Court.
3. Before the Sessions Court, the petitioners herein contended that, the entire allegation in the complaint are false and Crl.R.P.No.1388/2014 2 that,the learned Magistrate without properly considering the refer report and other documents produced, has taken cognizance. It was contended that, the allegations against them were absolutely false and that the documents produced by them before the learned Magistrate fundamentally affect the very basis of the allegations and the refusal of the learned Magistrate to consider those documents resulted in manifest injustice. Hence, they sought for discharge under section 227 Cr.P.C. It was allowed by the court below by the impugned order partly by holding that offence under section 395 IPC was not made out. Since the remaining offence were triable by the Magistrate, it was directed that the learned Magistrate shall proceed against the accused for the remaining offences. This is under challenge in the present proceedings.
4. Heard both sides and examined the records.
5. The court below has referred to in detail few materials placed before it. The court below relied on the refer report filed by the police to conclude that the police, after conducting a detailed investigation, had initially found to be false and even the allegation under the provisions of SC & ST Act was deleted by the police on a finding that the allegation was false.The refer report indicated that many witnesses were questioned and several documents were considered.
6. The learned Sessions Judge relied on the scene mahazar in crime No.178/2005 prepared on 21/8/2005, just two days prior to Crl.R.P.No.1388/2014 3 the date of the incident. The Sessions Judge held that it disclosed the true state of affairs in the disputed building. The court also referred to the final report in Crime Nos.178/2005 and 190/2005 which were initiated at the instance of the accused against the complainant herein and others. The offences for forgery, cheating and for causing grievous hurt were attributed to the defacto complainant herein and others. The Sessions Court held that the incident alleged in those crimes happened just two days prior to the incident alleged in the present case.
7. The court below also heavily relied on the judgment of the Sub Court in O.S.No.110/2005 in which the claim of ownership and possession over the building in question by the complainant herein was found to be null and void. The appeal preferred by the complainant herein against the judgment and decree was later dismissed. The court below held that, the judgment conclusively showed that the complainant herein had no right over the property. The allegation of robbery in that building or attempted to be committed in that building, appeared to be not sustainable, it was held. It was further held that,all the documents in relation to that building relied on by the complainant herein came into existence during the pendency of the civil case and by virtue of the judgment of the Sub Court, all those documents lost its significance. The court below further relied on scene mahazar in Crime No.178/2005 to conclude that substantial damage, as alleged in the complaint, Crl.R.P.No.1388/2014 4 had not occurred and the scene mahazar did not indicate the possibility of any such act.
8. It is clear that, the court below relied on the records in relation to other crimes initiated at the instance of the accused herein. Another document relied on by the court below was the judgment in the collateral proceeding in which the right to title and ownership over the disputed building was in question. These are all the documents produced by the accused. Even assuming that the decree of the Civil Court had attained finality, the crucial question, which the court below should have considered before rejecting the case of the complainant relying on the decree of civil court was, whether the complainant was in physical possession of the building as on the date of the alleged incident not withstanding the declaration of civil right.
10. The approach of the court below suffers from one fundamental mistake. The court below heavily relied on the refer report of the police as well as the documents filed by the accused. The Hon'ble Supreme Court in Rukmini Narvekar v. Vijaya Satardekar and others[(2008) 14 Supreme Court Cases 1] had held that, though it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare case, i.e where the defence produces some material which convincingly demonstrates that the Crl.R.P.No.1388/2014 5 whole prosecution case is totally absurd or totally concocted. It was further held that, there was no scope for the accused to produce any evidence in support of the submission made on his behalf at the stage of framing of charge and only such materials as are indicated in section 227 Cr.P.C. can be taken into consideration by the Magistrate at that stage. It was held in Ajay Kumar Parmar v. State of Rajasthan [(2012) 12 Supreme Court Cases 406] that while framing charges, the only material that has to be considered by the court below are documents submitted by the investigating agency. Any document relied on by the accused cannot be appreciated as evidence at this stage. Consideration of such evidence would lead to a mini trial during the stage of framing of charge,thus defeating the object of Cr.P.C. In the rarest of rare cases, materials produced by the accused can be considered only if it convincingly establishes that the case of the prosecution was absurd, preposterous or concocted.
11. The above facts, clearly shows that the court below went wrong in substantially relying on the documents produced by the accused to negative the case of the complainant. On the other hand, the court below did not consider all the materials placed by the complainant to evaluate whether the materials sufficient for proceeding further have been raised.
In the light of the above, the impugned order is legally not sustainable and is liable to be set aside. Accordingly, the impugned Crl.R.P.No.1388/2014 6 order is set aside. The Additional Sessions Court shall take up Crl.M.P.No.848/2011 and shall pass fresh orders in accordance with law, after giving reasonable opportunity to both sides to advance their arguments.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.