Kerala High Court
Sharafudheen vs State Of Kerala on 28 June, 2024
Author: V.G.Arun
Bench: V.G.Arun
Cr.M.C.Nos.3880 & 3889/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
CRL.MC NO. 3880 OF 2024
CRIME NO.131/2022 OF Thadiyittaparamba Police Station,
Ernakulam
AGAINST THE ORDER DATED 20.04.2024 IN SC NO.450 OF 2022 OF
FAST TRACK SPECIAL COURT , PERUMBAVOOR
PETITIONER:
SHARAFUDHEEN,
AGED 28 YEARS
S/O ALAVIKUTTY, THAYYIL HOUSE, KUMMANODE P.O.
PATTIMATTOM, ERNAKULAM, PIN - 683562
BY ADVS.
ANIL K.MUHAMED
V.S.MANSOOR
KRISHNAKUMAR G.
AJIN SALAM
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
OTHER PRESENT:
SR.PP SRI.HARISH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 26.06.2024, ALONG WITH Crl.MC.3889/2024, THE COURT ON
28.06.2024 PASSED THE FOLLOWING:
Cr.M.C.Nos.3880 & 3889/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
CRL.MC NO. 3889 OF 2024
CRIME NO.131/2022 OF Thadiyittaparamba Police Station,
Ernakulam
AGAINST THE ORDER DATED 20.04.2024 IN SC NO.450 OF 2022 OF
FAST TRACK SPECIAL COURT , PERUMBAVOOR
PETITIONER:
SHARAFUDHEEN,
AGED 28 YEARS
S/O ALAVIKUTTY, THAYYIL HOUSE, KUMMANODE P.O.
PATTIMATTOM, ERNAKULAM, PIN - 683562
BY ADVS.
ANIL K.MUHAMED
V.S.MANSOOR
KRISHNAKUMAR G.
AJIN SALAM
RESPONDENTS:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 26.06.2024, ALONG WITH Crl.MC.3880/2024,
THE COURT ON 28.06.2024 PASSED THE FOLLOWING:-
Cr.M.C.Nos.3880 & 3889/2024
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V.G.ARUN, J
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Crl.M.C.Nos.3880 & 3889 of 2024
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Dated this the 28th day of June, 2024
ORDER
The petitioner is the sole accused in Crime No.131 of 2022 of Thadiyittaparamba Police Station, now pending as S.C.No.450 of 2022 on the files of the Fast Track Special Court, Perumbavoor. The offences alleged against the petitioner are under Sections 342, 376, 376(2)(f)(n), 376(3), 354A(1)(i), 354B, 506(i) of IPC and Sections 4(2) read with 3(a), 6 read with 5(f), 5(l), 5(p), 8 read with 7, 10 read with 9(f)(l), 9(p), 12 read with 11(iv) of the Protection of Children from Sexual Offences Act, 2012 (PoCSO for short) and Section 75 of the Juvenile Justice Act, 2015. When the trial of the case reached the defence evidence stage, the petitioner filed a witness list and two petitions; CMP No. 133 of 2024, seeking production of the General Diary maintained at the Thadiyittaparamba Police Station and CMP No.134 of 2024 for producing the weekly report of the Investigating Officer Cr.M.C.Nos.3880 & 3889/2024 4 maintained at the office of the District Police Chief. By the common order impugned in these Crl.M.Cs, the trial court dismissed both the petitions.
2. The learned Counsel for the petitioner submitted that, once the General Diary is produced, the entries therein can be utilised to prove that a written complaint regarding the alleged commission of the offence was received by the Investigating Officer, which does not find a place in the FIR registered much later. The petitioner became aware of the entries only on receipt of a copy of the General Diary under the Right to Information Act. The GD entries will also show that the petitioner was taken into custody much before the registration of the crime and the Investigating Officer was engaged in other duties at the time when the Scene Mahazar is shown to have been prepared by him.
3. According to the learned Counsel, the reason for seeking production of the weekly report is to prove the apparent differences in the date and time given by the Investigating Officer in his deposition in court and the entries in the weekly report concerning those parts of the investigation.
Cr.M.C.Nos.3880 & 3889/2024 5
4. Assailing the impugned order, it is contended that the reasons stated therein are not sufficient to overcome the mandate of Section 233 of the Code of Criminal Procedure (Cr.P.C for short). In support of this argument, the decision of this Court in Mohammed Sahir v. State of Kerala [2024 KHC Online 499] is pressed into service. Relying on this Court's decision in Hariharan P.K. v. State of Kerala and Another [2010 KHC 648], it is submitted that a duty is cast upon the court to find out the truth and if material aspects are there in the General Diary and that document is necessary for deciding the case, the court is competent to call for the General Diary. Referring to the decision of this Court in Shiju P.T. v. State of Kerala [2016 (5) KHC 267], it is contended that there is no bar in summoning the General Diary and other documents maintained in the Police Station for adducing defence evidence.
5. Per contra, the learned Public Prosecutor contended that the reasons put forth by the Counsel were not stated in the petitions and therefore, the trial court cannot be faulted for dismissing the petitions. It is further contended that in the impugned order, the court below has stated the reasons Cr.M.C.Nos.3880 & 3889/2024 6 for rejecting the petitions and as such, the order warrants no interference.
6. A perusal of the impugned order shows that the trial court has made considerable efforts to explain the reason for not summoning the documents sought. After observing that the embargo against the production of certain documents contained in Section 172(3) Cr.P.C will not apply to the General Diary, the court went on to hold that the diary may contain details of other cases and production of such document will be an intrusion into the privacy of the activities in the Police Station.
7. The prayer for production of the weekly report is rejected for the reason that the document may contain secret activities of the Police Officers which cannot be brought into the public domain, lest it will compromise the privacy in the matter of investigation of the case.
8. The right conferred on the accused under sub-section (3) of Section 233 Cr.P.C. imposes the trial court with the duty of issuing process for compelling the attendance of witnesses or the production of documents or things applied for by the accused. The said right can be declined only if the Cr.M.C.Nos.3880 & 3889/2024 7 Judge considers that such application is made for the purpose of vexation or delay or for defeating the ends of justice. In the instant case, the petitioner had sought production of the documents at the first opportunity itself and cannot therefore be held guilty of attempting to delay the trial. The reasons stated in the impugned order, though elaborate, are beyond the scope of Section 233. The law on this point has been succinctly laid down in Mohammed Sahir (supra). Paragraphs 9 and 10 of that decision being contextually relevant are extracted hereunder:-
"9. Further, during a criminal trial, it is not for the court to decide the credit that can be attached to the evidence that a defence witness may bring in. Similarly, the court cannot also foresee the nature of evidence, the defence intends to adduce through a particular witness. The right of the defence to adduce all its evidence is part of the fair procedure contemplated under Art.21 of the Constitution of India. Hence the refusal to issue summons to witnesses named in the list of defence witnesses submitted by the accused should be an exception, to be resorted to very sparingly.
10. The circumstances arising in the instant case do not reflect any exceptional situation which would delay the trial or be vexatious. Though the learned Sessions Judge has observed that the request for issuing summons to the two witnesses is to drag the proceedings indefinitely, this Court is Cr.M.C.Nos.3880 & 3889/2024 8 of the view that the said observation is without any basis or legal justification. Moreover, if there is any attempt to drag or delay the proceedings, the court will be entitled to fix the day on which the witnesses could be examined and ensure that the trial is not delayed. Viewed in the above perspective, the impugned order is erroneous and is liable to be set aside."
9. In this context, it is also relevant to note that the petitioner has been charged with grave offences under the PoCSO Act and Section 29 of that Act casts a reverse burden on the accused to rebut the presumption as to the commission of the offences. In such circumstances, the refusal to order the production of the documents sought by the accused militates against the concept of fair trial, which is an essential and integral part of criminal jurisprudence.
In the result, the Crl.M.Cs are allowed, the impugned common order is set aside and the court below is directed to summon the witnesses (except the Judicial First Class Magistrate, Kakkanad) and the documents mentioned in the petitions.
Sd/-
V.G.ARUN, JUDGE sj