Kerala High Court
Anish Aged 32 Years vs The State Of Kerala on 11 April, 2013
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 30TH DAY OF MAY 2013/9TH JYAISHTA 1935
Crl.Rev.Pet.No. 1074 of 2013 ()
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AGAINST THE JUDGMENT IN SC 5/2011 of ADDL.DISTRICT COURT (ADHOC)-II,
KOTTAYAM, DATED 11-04-2013
(CRIME NO. 590/2008 OF THALAYOLAPARAMBU POLICE STATION , KOTTAYAM)
REVISION PETITIONER/1ST ACCUSED:-
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ANISH AGED 32 YEARS
S/O. GOPI, KOONAMMACKAL HOUSE, ADIYAM BHAGOM
THALAYOLAPARAMBU, KOTTAYAM DISTRICT.
BY ADV. SRI.S.NIDHEESH
RESPONDENTS/CR.PETITIONER/COMPLAINANT:-
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THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 30-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K. HARILAL, J.
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Crl.R.P.No.1074 of 2013.
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Dated this the 30th May, 2013.
O R D E R
This Revision Petition is filed challenging the impugned order passed in Crl.MP.No.1628 of 2011 in SC.No.5 of 2011 on the files of the Court of the Addl.Sessions Judge (Adhoc)- II, Kottayam. The above petition was filed under Section 227 of Criminal Procedure Code, for discharging him from prosecution. The Revision petitioner is the first accused in Crime No.590/2008 of Thalayolaparambu Police Station registered under Section 114, 143, 147, 148, 326, 324, 323, 308 r/w.149 of Indian Penal Code. The prosecution allegation is that on 2.9.2008 at 8.30 pm. A2 to A6 formed themselves into an unlawful assembly armed with deadly weapons and inflicted injuries on the defacto complainant. It is specifically alleged that A2 to A6 had attacked Cw1 with iron rods, sword stick, iron pipe etc and inflicted Crl.R.P.No.1074/2013.
2 several injuries on his body as a result of the abetment of the Revision petitioner and thereby the accused including the Revision petitioner attempted to commit culpable homicide not amounting to murder. In short, according to the defacto complainant A2 to A6 had attacked him as abetted by the Revision petitioner.
2. The sole point raised by the Revision petitioner is that now he is charge sheeted by the police for the offence punishable under Section 114 IPC along with other offences. Counsel for the Revision petitioner submits that according to the prosecution case, the penal provision attracting the offence said to have been committed by the Revision petitioner is Section 114 IPC.
3. The learned counsel drew my attention to Section 114 IPC and pointed out that Section 114 IPC is applicable to an offence which is committed in the presence of the person who had abetted the commission of offence. But here, according to the prosecution the Revision petitioner Crl.R.P.No.1074/2013.
3 though abetted, was not present at the time of commission of the offence. According to Section 114 IPC the presence of the abettor is inevitable to attract the said section. But here, the prosecution himself admitted that the Revision petitioner was not present at the time of commission of the offence. Therefore, charge against the Revision petitioner is groundless as well as unsustainable.
4. Going by the charge sheet it could be seen that the allegation against the Revision petitioner is that A2 to A6 had attacked the defacto complainant in the result of the abetment made by the Revision petitioner. The defacto complainant as well as the witnesses have given statements before the police that A2 to A6 have committed the assault on the defacto complainant at the abetment of the Revision petitioner. In short, the charge is A2 to A6 were acting as paid goondas at the hands of the Revision petitioner who is abettor of the offence.
5. Going by Section 114 IPC it is seen that as Crl.R.P.No.1074/2013.
4 submitted by the learned counsel Sec.114 IPC is provided for prosecuting an abettor who was present also at the time of commission of the offence. What is to be considered in a discharge petition is, on consideration of the records of the case and documents submitted therewith, whether there are sufficient grounds to proceed against an accused. The misquoting of a section of the Penal Code in the Police charge is of no consequence at all as it is for the Court to frame correct charge under proper Penal Section at the next stage when there are sufficient grounds for presuming that the accused has committed the offence and the accused cannot be discharged under Section 227 of Cr.PC on that ground of mere misquoting of Penal Section. On a meticulous consideration of the records of the case and documents submitted therewith the trial court found that there are sufficient grounds to proceed against the Revision petitioner and, the difference in quoting the Penal Section is insignificant at this stage. Even after framing of charge Crl.R.P.No.1074/2013.
5 under Section 228 Cr.PC, charge can be altered at any time before the pronouncement of the judgment under Section 216 Cr.PC. Thus there is no illegality or impropriety in the impugned order. Consequently, this Revision Petition is dismissed.
Sd/-
K. HARILAL, (Judge) Kvs/-
( true copy ) PA TO JUDGE.