Kerala High Court
Union Territory Lakshadweep ... vs Pattakkal Sayed Ahammed Koya Thangal on 8 May, 2001
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938
CRL.A.No. 625 of 2001 ( )
--------------------------
AGAINST THE JUDGMENT IN CC 7/1991 of JUDL.MAGI.OF 1ST CLASS,ANDROTH
DATED 08-05-2001
APPELLANT/COMPLAINANT:
------------------------
UNION TERRITORY LAKSHADWEEP ADMINISTRATION
BY ADMINISTRATOR (CR.NO.4 OF 1990, ANDROTH POLICE
STATION).
BY ADVS.SRI.O.BALANARAYANAN
SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN
RESPONDENT(S)/ACCUSED :
-----------------------
1. PATTAKKAL SAYED AHAMMED KOYA THANGAL
S/O. SAYED ISMAIL KOYA, AGED 43/90,
MECHERY, ANDROTT.
2. PATTAKKAL ATTAKOYA
S/O. SAYED KOYA, AGED 58/90, MECHERY, ANDROTT.
3. A.I.KUNHIKOYA
S/O. KOYAMMAKOYA, AGED 38/90, EDACHERY, ANDROTT.
4. A.I.MOHAMMED MUSTHAFA
S/O. KOYAMMAKOYA, AGED 32/90, EDACHERY, ANDROTT.
5. A.I.KUNHISEETHIKOYA THANGAL
S/O. MUTHUKOYA THANGAL, AGED 48/90, EDACHERY, ANDROTT.
6. A.I.MOHAMMED MAHUROOF
S/O. MUTHUKOYA, AGED 27/90, EDACHERY, ANDROTT.
7. PADIPURA MOHAMMED HUSSAIN
S/O. POOKOYA THANGAL, AGED 35/90, EDACHERY, ANDROTT.
8. A.B.S.A. NALLAKOYA THANGAL
S/O. SHAIKOYA THANGAL, AGED 45/90,
EDACHERY, ANDROTT.
9. PADIPPURA MOHAMMED KHALEEL
S/O. POOKOYA, AGED 52/90, EDACHERY, ANDROTT.
10. U.P.ATTAKOYA THANGAL
S/O. SHAIKOYA, AGED 43/90, CHEMMACHERY, ANDROTT.
CRRP 625/2001 2
11. P.A.POOKOYA
S/O. MOHAMMED IQBAL, AGED 36/90, EDACHERY, ANDROTT.
12. A.I.THANGAKOYA
S/O. SHAIKOYA, AGED 52/90, EDACHERY, ANDROTT.
13. A.B.SAYED MOHAMMED KOYA MUSALIYAR
S/O. SAYED ISMAIL, AGED 40/90, EDACHERY, ANDROTT.
14. A.B.ATTAKOYA
S/O. SHAIKOYA, AGED 32/90,
(STUDYING AT GOVT. VETERINARY COLLEGE, MANNUTHI,
TRICHUR DISTRICT), EDACHERY, ANDROTT.
15. S.S.FATHAHULLA
S/O. KOYAMMAKOYA, AGED 47/90, CHEMMACHERY, ANDROTT.
16. A.B.MOHAMMED BASHEER
S/O. POOKOYA, AGED 25/90, EDACHERY, ANDROTT.
17. PATTAKKAL MOHAMMED MUSTHAFA
S/O. SAYED ISMAIL KOYA, AGED 25/90,
EDACHERY, ANDROTT.
18. NAIKOCHODAM HAMZAKOYA
S/O. ABDULKHADER, AGED 39/90,
AMINI (TEACHING AT JAWAHAR MADRASSA, ANDROTT).
19. MATHIL PERALA KOYA
D/O. KOYAMMA, AGED 38/90, KEACHERY, ANDROTT.
20. KERAKKADA MOHAMMED KALEEL
S/O. MUTHUKOYA, AGED 33/90, EDACHERY,
ANDROTT J.E.PWD).
21. A.B.KUNHIKOYA
S/O. SAYED ISMAIL KOYA, AGED 42/90, EDACHERY,
ANDROTT. (WORKING AS BOAT DRIVER PORT-DEPARTMENT,
DAVARATTI).
22. KUNNAMANGALAM POOKOYA
S/O. NALLAKOYA THANGAL, AGED 40/90, EDACHERY, ANDROTT.
23. DR. S.V.SHAIKOYA THANGAL
S/O. ATTAKOYA, AGED 57/90, MECHERY, ANDROTT.
(MEDICAL OFFICER, P.H.C., ANDROTT).
24. DR. N.MUTHUKOYA
S/O. ATTAKOYA, AGED 45/90, KEACHERY, ANDROTT.
25. A.I.ATTAKOYA
S/O. POOKOYA THANGAL, AGED 30/90,
EDACHERY, ANDROTT.
26. EDAYAKAL MOHAMMED NAZIR
S/O. KOYA, AGED 30/90, KEACHERY, ANDROTT.
27. N.P.THATHADA MAYISHA
S/O. ATTAKOYA, AGED 20/90, MEACHERY, ANDROTT.
CRRP 625/2001 3
28. N.P.SIRAJUDDIN KUNHIKOYA
S/O. ATTAKOYA, AGED 28/90, CHEMMACHERY, ANDROTT.
29. A.I.MOHAMMED HUSSAIN SHAIKOYA
S/O. POOKOYA THANGAL, AGED 35/90, EDACHERY,
ANDROTT. (ARABIC TEACHER G.H.S., ANDROTT).
30. PUTHALAM MOHAMMED HUSSAIN
S/O. SAYED, MOHAMMEDKOYA, AGED 28/90,
CHEMMACHERRY, ANDROTT.
31. P.A.MOHAMMED HUSSAIN
S/O. POOKOYA, AGED 23/90, MEACHERY, ANDROTT.
(NOW STUDYING AT MAR ATHANASIUE ENGINEERING COLLEGE,
KOTHAMANGALAM, ERNAKULAM DISTRICT).
32. A.B.SAYEDKOYA
S/O. KOYAMMAKOYA, AGED 43/90, EDACHERY, ANDROTT.
33. PADIPURA MOHAMMED SALIM
S/O. POOKOYA, AGED 26/90, EDACHERY, ANDROTT.
34. A.B.ALIYUL AKBAR
S/O. SHAIKOYA, AGED 20/90, EDACHERY, ANDROTT.
35. PATTAKKAL MOHAMMED ASHRAF
S/O. SAYED ISMAIL KOYA, AGED 32/90, EDACHERY, ANDROTT.
36. PADIPURA KOYA THANGAL
S/O. KOYAMMAKOYA, AGED 37/90, CHEMMACHERY, ANDROTT.
(WORKING AT KALPENI AS PII).
37. PUTHIYA PANDARAM CHERIYAKOYA
S/O. YUSUF, AGED 23/90, MECHERY, ANDROTT.
(WORKING AT PHARMACIST PHC, KALPENI).
38. M.P.POOKOYA
S/O. KOYAMMA, AGED 35/90, EDACHERY, ANDROTT.
(WORKING AS OILMAN ELECTRICITY DEPARTMENT, ANDROTT).
39. P.PUTHIYA VEEDU CHERIYAKOYA THANGAL
S/O. KUNHIKOYA THANGAL, AGED 50/90,
EDACHERY, ANDROTT.
40. PUTHIYAPURA SIRAJUDDEEN
S/O. ATTAKOYA, AGED 52/90, CHEMMACHERRY, ANDROTT.
(WORKING AS FIELDMAN AGRICULTURAL DEPARTMENT, ANDROTT).
41. KOMALAM SAYED MOHAMMED
S/O. CHERIYAKOYA, AGED 21/90, MECHERY, ANDROTT.
42. KOMALAM MOHAMMED HUSSAIN
S/O. CHERIYAKOYA, AGED 34/90, MEACHERY,
ANDROTT. (WORKING AS WIRELESS OPERATOR POST & TELEGRAPH
DEPARTMENT, ANDROTT).
43. MARIYAMMADA MUTHUKOYA
S/O. NALLAKOYA THANGAL, AGED 58/90,
CHEMMACHERY, ANDROTT.
CRRP 625/2001 4
44. PUTHIYA VEEDU MUTHUKOYA
S/O. NALLAKOYA, AGED 36/90, CHEMMACHERY, ANDROTT.
(WORKING AS PRIMARY SCHOOL TEACHER, ANDROTT).
45. T.P.SAYED MOHAMMED KOYA
S/O. YUSUF, AGED 30/90, EDACHERY, ANDROTT.
(WORKING AS LIBORATORY TECHINICIAN, PHC, ANDROTT).
46. S.V.MOHAMMED ASHRAF
S/O. SAYED KOYA, AGED 30/90, MEACHERY, ANDROTT.
47. S.V.MUTHUKOYA
S/O. KUNHISEETHIKOYA, AGED 46/90, MEACHERY, ANDROTT.
48. P.P.T.MUTHUKOYA
S/O. SAYED MOHAMMED KOYA, AGED 39/90,
CHEMMACHERY, ANDROTT. (WORKING AS CASHIER SUPPLY
SOCIETY,
ANDROTT).
49. EDAYAKAL MUTHUKOYA
S/O. THANGAKOYA, AGED 45/90, KEACHERY, ANDROTT).
50. PUTHALAM MOHAMMED RAFEEQUE
S/O. SAYED ABHOO RAFEEQ THANGAL, AGED 31/90,
CHEMACHERY, ANDROTT.
51. P.V.P.AMEEDUDDIN
S/O. THANGAKOYA, AGED 20/90, MEACHERY, ANDROTT.
52. AVVAMMADA ATTAKOYA
S/O. SHAIKOYA, AGED 61/90, MEACHERY, ANDROTT.
53. P.P.SAYED BUHARI JALAUDDIN
S/O. KOYAMMA KOYA THANGAL, AGED 32/90,
CHEMMACHERY, ANDROTT.
54. PADIPUR MOHAMMED NASSERUDDIN
S/O. KOYAMM KOYA THANGAL, AGED 30/90,
CHEMMACHERY, ANDROTT.
55. NEELATHUPURA CHERIYAKOYA
S/O. SAYED KOYA, AGED 61/90, MEACHERY, ANDROTT.
56. PUTHIYAVEETU POOKOYA
S/O. SAUED KOYA, AGED 33/90, CHEMMACHERY, ANDROTT.
57. KAVALLAL SHAIKOYA
S/O. MUTHUKOYA, AGED 55/90, CHEMMACHERY, ANDROTT.
58. K.P.POOKUNHI KOYA
S/O. KOYA, AGED 37/90, MECHERY, ANDROTT.
59. KOMALAM KOYA
S/O. NALLAKOYA, AGED 39/90, MEACHERY, ANDROTT.
CRRP 625/2001 5
60. P.P.MASHHOOR
S/O. SAYED KOYA, AGED 22/90, MEACHERY, ANDROTT.
61. N.P.SAYADKOYA
S/O. KOYA, AGED 38/90, CHEMACHERY, ANDROTT.
(PET GOVT. HIGH SCHOOL, ANDROTT).
62. S.V.MOHAMMED RAFEEQ
S/O. ATTAKOYA, AGED 32/90, MECHERY, ANDROTT.
63. P.P.FAKRUDDIN ALI AHAMMED
S/O. BADARUDDIN, AGED 18/90, MECHERY, ANDROTT.
64. N.P.KUNHISSETHIKOYA
S/O. MUTHUKOYA, AGED 52/90, MECHERY, ANDROTT.
65. P.P.PUTHIYANNAL KOYA
S/O. MUTHUKOYA, AGED 52/90, CHEMMACHERY, ANDROTT.
66. A.I.SAYED MURTHULLA
S/O. JALALUDDIN THANGAL, AGED 21/90,
EDACHERY, ANDROTT.
67. S.V.POOKOYA
S/O. ATTAKOYA, AGED 26/90, MECHERY, ANDROTT.
68. S.V.MOHAMMED HUSSAIN
S/O. ATTAKOYA, AGED 21/90, MECHERY, ANDROTT.
(PRESENT ADDRESS T.K.HOUSE, P.O.MANIYAD,
TRIKARIPUR VIS. KASARGOD DISTRICT, KERALA).
69. AYNIAMMADA KOYAMMAKOYA
S/O. POOKOYA, AGED 36/90, MECHERY, ANDROTT.
70. S.V.P.SIRAJUDDIN
S/O. SAYEDKOYA, AGED 36/90, MECHERY, ANDROTT.
71. SHAIKIRIMMADA KUNHIKOYA
S/O. KOYA, AGED 44/90, MECHERY, ANDROTT.
72. A.MOHATHIYAPURA MUTHUKOYA
S/O. SAYED KOYA, AGED 55/90, EDACHERY, ANDROTT.
73. A.I.MOHAMMED JAMAL
S/O. KOYAMMAKOYA, AGED 39/90, EDACHERY, ANDROTT.
74. PUTHIYA AZHIKKAKAM MUTHUKOYA
S/O. ATTAKOYA, AGED 44/90, EDACHERY, ANDROTT.
75. CHERIKKAL PUTHIYAPURA HASSAN
S/O. BAMMAD, AGED 58/90, EDACHERY, ANDROTT.
76. SHAIKRIMMADA SHAIKOYA
S/O. SAYED SHAIKOYA, AGED 24/90, MECHERY, ANDROTT.
77. A.I.CHERIYAKOYA
S/O. SHAIKOYA, AGED 53/90, EDACHERY, ANDROTT.
CRRP 625/2001 6
78. PUTHIYA AZHIKKAKAM MOHAMMED HUSSAIN
S/O. POOKOYA, AGED 25/90, EDACHERY, ANDROTT.
(ARABIC TEACHER, J.B.SCHOOL, AITRA).
79. A.I.SAYED KOYA
S/O. NALLAKOYA, AGED 62/90, EDACHERY, ANDROTT.
80. PUTHIYA VEETU ATTAKOYA
S/O. NALLAKOYA, AGED 39/90, CHEMMACHERY, ANDROTT.
(UDC ELECTRICITY DEPARTMENT, ANDROTT).
81. EDAYAKAL SAYED MOHAMMED
S/O. SHAIKOYA, AGED 38/90, MECHERY, ANDROTT.
82. A.I.MOHAMMED HUSSAIN
S/O. KUNHIKOYA, AGED 20/90, EDACHERY, ANDROTT.
83. A.I.MOHAMMED KASIM
S/O. KUNHIKOYA, AGED 18/90, EDACHERY, ANDROTT.
84. P.P.T.MOHAMMED KASIM
S/O. KOYAMMAKOYA, AGED 42/90, CHEMMACHERY, ANDROTT.
85. A.I.MOHAMMED ARIF
S/O. MUTHUKOYA, AGED 21/90, EDACHERY, ANDROTT.
86. PUTHIYAVEED EDATHADA CHARIYAKOYA
S/O. M.P.KUNHIKOYA, AGED 61/90, CHEMMANCHERY, ANDROTT.
87. A.I.MOHAMMED RAFEEQUE
S/O. S.V.SHAIKOYA, AGED 24/90, MECHERY, ANDROTT.
88. C.EDAYAK AL MOHAMMED BASHEER
S/O. KOYA, AGED 26/90, MECHERY, ANDROTT.
89. A.I.BAMBITHIBI
W/O. MUTHUKOYA, AGED 55/90, EDACHERY, ANDROTT.
R,R1,3 TO 7,9 TO 39, BY ADV. SRI.MAT.PAI
R,R42,44 TO 48,50 TO BY ADV. SRI.MAT.PAI
R,58,60 TO 71,74 TO BY ADV. SRI.MAT.PAI
R,89. BY ADV. SRI.MAT.PAI
R,R1,3-7,9-39 BY ADV. SRI.N.P.SAMUEL
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-03-
2016, ALONG WITH CRA. 1448/2003, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
P.D.RAJAN, J
.........................................
Crl.A.No.625 of 2001 & 1448 of 2003
......................................
Dated 22nd March, 2016
JUDGMENT 'CR'
The main challenge that arises in this appeal is that
when a Magistrate releases an accused under Section 4 of
the Probation of Offenders Act 1958, whether an appeal
under Section 377(1) of Code of Criminal Procedure is
maintainable ? These appeals have been filed against the
judgment of conviction of A1 and acquittal of A2 to A89 in
C.C.7 of 1991 of Judicial First Class Magistrate, Androth.
The first accused was convicted under Section 143 and
188 of Indian Penal Code ("IPC" in short) and released
under Section 4 of the Probation of Offender's Act and
acquitted him for offences section 144, 145, 147, 148,
332, 353 and 506(ii) read with 149 IPC. Accused 2 to 89
were acquitted by the learned Magistrate for offence
punishable under Section 143, 144, 145, 147, 148, 188,
332, 353 and 506(ii) read with 149 IPC. Against that
judgment Criminal Appeal 625 of 2001 has been
preferred by the Administrator, Union territory,
Crl.a.625/2001 & 1448/2003 2
Lakshadweep under Section 377 and 378(1) and (3) of
the Code of Criminal Procedure (hereinafter referred to as
the Code). Against the conviction under section 143 and
188 IPC, first accused preferred Crl.A.1 of 2001 before
Sessions Court, Kavarathy which was transferred to this
court, and taken on file as Crl.A.1448 of 2003 and both
appeals have been heard together. The respondents in
Crl.A.625 of 2001 are the accused in C.C No.7 of 1991 of
the trial court.
2. The accused were charge sheeted before the
Judicial Magistrate of First Class, Androth in C.C.No.7 of
1991 under Section 143, 144, 145, 147, 148, 188, 332,
353, 506(ii) read with 149 IPC. The charge against the
accused is that on 23.4.1990 at 13 hours, the accused in
prosecution of the common object of committing riot
armed with deadly weapons unlawfully assembled inside
and outside the Juma Masjid, Androth in violation of the
order promulgated by the Executive Magistrate
empowered under section 144 of the Code to abstain from
the Masjid attached to Darga at a distance of 15 metres.
Crl.a.625/2001 & 1448/2003 3
Violating the above direction of law, they remained in the
Mosque and its premises and used criminal force against
the police personnel deployed for duty and also deterred
the executive Magistrate from discharging their duty and
pelted wooden reapers, G.I pipes and stones and thereby
committed offence. In this incident, Androth police
registered a crime and after completing investigation, laid
charge before Judicial First Class Magistrate, Androth.
Accused No.89 is absconding, hence his case was split up.
3. During trial, prosecution examined PW1 to PW24
and marked Ext.P1 to P4 as documentary evidence.
Material objects MO1 to MO28 were admitted in evidence.
The incriminating circumstances brought out in evidence
were denied by the accused while questioning them.
They did not adduce any defence evidence. Learned
Magistrate acquitted A2 to A90 (except A89) and
convicted the first accused under Section 188 and 143
IPC and released under Section 4 of the Probation of
Offenders Act. Being aggrieved by that, the 1st accused
preferred Crl.A.1 of 2001 of Sessions Court, Androth. The
Crl.a.625/2001 & 1448/2003 4
Administrator, Union territory also filed Crl.A.625 of 2001
against the acquittal of the accused and for enhancement
of sentence against A1.
4. After filing these appeals, 18 persons died and the
appeal against them being abated under Section 394
Cr.P.C, the union territory is prosecuting the other
accused. Section 394 Cr.P.C reads as follows:
"Abatement of appeals - (1) Every appeal under
section 377 or section 378 shall finally abate on
the death of the accused.
(2) Every other appeal under this Chapter (except
an appeal from a sentence of fine) shall finally
abate on the death of the appellant:
Provided that where the appeal is against a
conviction and sentence of death or of
imprisonment, and the appellant dies during the
pendency of the appeal, any of her near relatives
may, within thirty days of the death of the
appellant, apply to the Appellate Court for leave to
continue the appeal; and if leave is granted, the
appeal shall not abate.
Explanation - In this section, "near relative"
means a parent, spouse, lineal descendant,
brother or sister".
Crl.a.625/2001 & 1448/2003 5
Once an appeal against an acquittal is admitted by the
High Court, it is the duty of the High Court to decide the
same, irrespective of the fact that the appellant either
does not intend to prosecute it or is unable to prosecute it
for one reason or the other. From this section it is clear
that an appeal against an acquittal under Section 378 or
an appeal for the enhancement of the sentence under
Section 377, being abated on the death of the accused
and not otherwise.
5. Learned counsel appearing for the union territory
contended that the release of the first accused under
Section 4 of the Probation of Offender's Act is illegal. The
acquittal of the accused was without considering the
evidence in this case. The incident resulted in police
firing which culminated in loss of two lives and injuries to
police men and some members of the public, the finding
of the learned Magistrate was without perusing the
evidence. Therefore the acquittal may be set aside, find
them guilty and pass appropriate sentence at the same
time be prays to enhance the sentence against A1.
Crl.a.625/2001 & 1448/2003 6
6. Learned counsel appearing for the respondents in
Crl.A.625 of 2001 including the appellant in Crl.A.1448 of
2003 contended that the order issued under Section 144
of Cr.P.C was not produced in the trial court. The
witnesses present there did not identify the accused
including A1 during trial. The evidence of official witness
alone was relied by the trial court for convicting the first
accused. When prima facie no materials are available,
the conviction of the 1st accused is unsustainable in law.
7. In view of rival submission of both parties I think
it proper to consider the legal position. Section 378
confers power on the State to present an appeal to the
High Court from an order of acquittal. The section may be
quoted as follows:
" Appeal in case of acquittal - (1) Save as
otherwise provided in sub-section (2), and subject to
the provisions of sub-sections (3) and (5), -
(a) the District Magistrate may, in any case, direct
the Public Prosecutor to present an appeal to the
Court of Session from an order of acquittal passed
by a Magistrate in respect of a cognizable and non-
bailable offence;
Crl.a.625/2001 & 1448/2003 7
b) the State Government may, in any case, direct
the Public Prosecutor to present an appeal to the
High Court from an original or appellate order of an
acquittal passed by any Court other than a High
Court (not being an order under clause (a) or an
order of acquittal passed by the Court of Session in
revision).
(2)If such an order of acquittal is passed in any case
in which the offence has been investigated by the
Delhi Special Police Establishment constituted under
the Delhi Special Police Establishment Act, 1946(25
of 1946) or by any other agency empowered to
make investigation into an offence under any Central
Act other than this Code, (the Central Government
may, subject to the provisions of sub-section (3),
also direct the Public Prosecutor to present an
appeal -
(a) to the Court of Session, from an order of
acquittal passed by a Magistrate in respect of a
cognizable and non-bailable offence;
(b) to the High Court from an original or appellate
order of an acquittal passed by any Court other than
a High Court (not being an order under clause(a) or
an order of acquittal passed by the Court of Session
in revision).
(3) No appeal to the High Court under sub-section
(1) or sub-section (2) shall be entertained except
with the leave of the High Court".
Crl.a.625/2001 & 1448/2003 8
(4)If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an
application made to it by the complainant in this
behalf, grants special leave to appeal from the order
of acquittal, the complainant may present such an
appeal to the High Court.
(5) No application under sub-section (4) for the
grant of special leave to appeal from an order of
acquittal shall be entertained by the High Court after
the expiry of six months, where the complainant is a
public servant, and sixty days in every other case,
computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section
(4) for the grant of special leave to appeal from an
order of acquittal is refused, no appeal from that
order of acquittal shall lie under sub-section (1) or
under sub-section (2)".
8. Appeal against acquittal has been explained
under Section 378 of the Code. The restriction provided
for preferring an appeal against acquittal by Section 378
are armed to protect the interest of the accused person.
A reading of the above first four sub sections of section
378, it is seen that an appeal against acquittal could be
filed by government in cases preferred upon a complaint
by the government as well as by the complainant. The
Crl.a.625/2001 & 1448/2003 9
right on such appeal can be exercised only after obtaining
leave of the court. When acquittal is passed by any
Magistrate or by any Sessions Judge and where the
offences of which accused is a major or a minor, appeal
in every case of such acquittal could only be made to
High Court. According to sub-section (6), an appeal by
the State under sub-section (1) or sub-section (2) is
barred in case private complaints fail to obtain special
leave under sub section 4. When an appeal is filed High
court should answer to the question whether the finding
of the trial court are wrong or there is any error or it is
sustainable or not. High Court has full power to re
appreciate, review and reconsider the evidence on which
the order of acquittal is founded and to reach its own
conclusion on the basis of evidence. The question of law
and facts are open and the high court cannot forget the
presumption of innocence in favour of the accused.
9. In this context I have considered the entire facts
whether there is any wrong committed by the trial court
while scrutinizing the oral and documentary evidence in
Crl.a.625/2001 & 1448/2003 10
this case. The incident started on the basis of 'khadam'
celebration, 27th ramzan day. The prosecution examined
PW1, who is the S.I of Police, Androth as the principal
witness to depose about the incident. His evidence
shows that the Executive Magistrate issued an order
under Section 144 of Cr.P.C restraining A1 and his
followers from assembling and using weapons in the
Masjid. Pookoy Thangal was allowed to perform the rites.
As per the sanction, Khazi Pookoy Thangal and his
followers shall enter into the Masjid from 1 pm on 23rd
March, 2016 to 12 pm on 24th March, 2016. In such a
manner, celebration was arranged in the Masjid. When
PW1 and other police officials reached there, accused and
other group did not obey the direction issued for
celebrating the 'khadom'. On the other hand, hundreds
and hundreds of people gathered under the leadership of
A1. They entered inside the Mosque with deadly
weapons. Finally, Sub Divisional Officer instructed them
to vacate the premises.
10. On a perusal of the evidence it is clear that A1
Crl.a.625/2001 & 1448/2003 11
agreed to obey the direction subject to the concurrence of
his followers. Later they were hesitant to obey the
direction issued by the Administrator. In such a situation,
the further incident occurred there. Even after repeated
attempt, they declined to vacate the premises and
attempted to attack the Executive Magistrate and police
officials. PW1 identified A1 and Dr.Muthukoya, Shaik
Koya Thangal, A.B.Kunhikoya at the place of occurrence
and they are the leaders present at the time of occurrence
to resist the police.
11. The violent mob neglected the warning issued
by police. In the circumstance, they used tear gas and
finally they fired towards the mob. Two persons died and
several others were injured. For this, PW1 registered a
crime, Ext.P1 is the F.I.R, Ext.P2 is the plan prepared by
PW1. Ext.P3 is the scene mahazar, Ext.P4 is the seizure
list in Crime No.4 of 1990. Analysing the evidence of
PW1, it is clear that he identified the first accused and the
place of occurrence. I find no reason to discard the oral
testimony of PW1. PW3 supported the oral evidence of
Crl.a.625/2001 & 1448/2003 12
PW1. I have examined the oral evidence of other
prosecution witnesses but they failed to identify the
members who participated in the unlawful assembly, in
the circumstance learned Trial Magistrate acquitted the
accused.
12. Privy Council in Sheo Swarup V. King Emperor
(AIR 1934 Privy Council 227) rendered the first decision
and held how to re appreciate the evidence by the
appellate court while hearing an appeal against acquittal.
In that case accused were acquitted by the trial court and
the local government directed Public Prosecutor to
present an appeal to the High Court. Lord Russel sum up
the legal position as follows:-
"10. ".. the High Court should and will always give
proper weight and consideration to such matters as
(1) the view of the trial Judge as to the credibility of
the witnesses; (2) the presumption of innocence in
favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at
his trial; (3) the right of the accused to the benefit of
any doubt; and (4) the slowness of an appellate
court in disturbing the finding of fact arrived at by a
Crl.a.625/2001 & 1448/2003 13
Judge who had the advantage of seeing the
witnesses". The opinion of the Lord Russell has been
followed over the years".
13. The above principles were restated by the Apex
Court in Muralidhar alias Gidda V. State of Karnataka
(AIR 2014 SC 2200) wherein it was held as follows:-
12. "the appellate court must bear in mind the
following: (i) There is presumption of innocence in
favour of an accused person and such presumption is
strengthened by the order of acquittal passed in his
favour by the trial court, (ii)The accused person is
entitled to the benefit of reasonable doubt when it
deals with the merit of the appeal against acquittal,
(iii)Though, the power of the appellate court in
considering the appeals against acquittal are as
extensive as its powers in appeals against
convictions but the appellate court is generally loath
in disturbing the finding of fact recorded by the trial
court. It is so because the trial court had an
advantage of seeing the demeanour of the
witnesses. If the trial court takes a reasonable view
of the facts of the case, interference by the appellate
court with the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial court are
palpably wrong or based on erroneous view of the
law or if such conclusions are allowed to stand, they
Crl.a.625/2001 & 1448/2003 14
are likely to result in grave injustice, the reluctance
on the part of the appellate court in interfering with
such conclusions is fully justified, and (iv)Merely
because the appellate court on re-appreciation and
re-evaluation of the evidence is inclined to take a
different view, interference with the judgment of
acquittal is not justified if view taken by the court is
a possible view. The evenly balanced views of the
evidence must not result in the interference by the
appellate court in the judgment of the trial court".
Apex Court in the above decision referred its earlier
decision in Surajpal Singh V. State (AIR 1952 SC 52).
Tulsiram Kanu V. State (1954 SC 1), Chandrappa V.
State of Karnataka (2007(4) SCC 415), Madan Mohan
Singh V. State of U.P (AIR 1954 SC 637), Atley V.
State of U.P (AIR 1955 SC 807), Aher Raja Kihma V.
State of Saurashtra (AIR 1956 SC 217), Balbir Singh
V. State of Punjab (AIR 1957 SC 216), M.G.Agarwal
V. State of Maharashtra (AIR 1963 SC 200), Noor
Khan V. State of Rajasthan (AIR 1964 SC 286),
Khedu Mohton V. State of Bihar (1970(2) SCC 450),
Shivaji Sahabrao Bobade V. State of Maharshtra
Crl.a.625/2001 & 1448/2003 15
(1973(2) SCC 793), Lekha Yadav V. State of Bihar
(1973(2) SCC 424), Khem Karan V. State of U.P.(1974
(4)SCC 603), Bishan Singh V. State of Punjab (1974
(3)SCC 288) Umedbhai Jadavbhai V. State of Gujarat
(1978(1) SCC 228), K.Gopal Reddy V. State of A.P
(1979 (1) SCC 355), Tota Singh V. State of Punjab
(1987(2) SCC 529), Ram Kumar V. State of Haryana
(1995 supp (1) SCC 248), Madan Lal V. State of J and
K (1997(7) SCC 677), Sambasivan V. State of Kerala
(1998(5) SCC 412), Bhagwan Singh V. State of M.P
(20002(4) SCC 85), Harijana Thirupala V. Public
Prosecutor, High Court of A.P (2002(6) SCC 470),
C.Antony V. K.G.Raghavan Nair (2003(1) SCC 1),
State of Karnataka V. K.Gopalakrishna (2005(9) SCC
291) & State of Goa V. Sanjay Thakran (2007(3) SCC
755). Analysing the evidence in this case, I am of the
view that learned Trial Magistrate rightly analysed the
oral evidence in this case and convicted the first accused
and acquitted others. I find no reason to interfere in the
finding recorded by the learned Magistrate. No
Crl.a.625/2001 & 1448/2003 16
circumstances are brought before me to set aside the
acquittal of A2 to A89.
14. Now the question is that when the Magistrate,
Androth released the 1st accused under Section 4 of the
Probation of Offenders Act 1958 and no sentence has
been awarded by the trial court, in the circumstances
whether an appeal under Section 377(1) Cr.P.C is
maintainable before High Court.Appeal by state
government against sentence has been explained under
Section 377 of the Code of Criminal Procedure (Code
hereinafter) which reads as follows:-
"377. Appeal by the State Government against
sentence - (1) Save as otherwise provided in sub-
section (2), the State Government may, in any case of
conviction on a trial held by any Court other than a
High Court, direct the Public Prosecutor to present (an
appeal against the sentence on the ground of its
inadequacy -
(a) to the Court of session, if the sentence is
passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by
any other Court.
(2) If such conviction is in a case in which the
Crl.a.625/2001 & 1448/2003 17
offence has been investigated by the Delhi Special
Police Establishment, constituted under the Delhi
Special Police Establishment Act, 1946 (25 of
1946), or by any other agency empowered to
make investigation into an offence under any
Central Act other than this Code, (the Central
Government may also direct) the Public
Prosecutor to present (an appeal against the
sentence on the ground of its inadequacy -
(a) to the Court of session, if the sentence is
passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by
any other Court,
(3) When an appeal has been filed against the
sentence on the ground of its inadequacy, (the
court of Session or, as the case may be, the High
Court) shall not enhance the sentence except
after giving to the accused a reasonable
opportunity of showing cause against such
enhancement and while showing cause, the
accused may plead for his acquittal or for the
reduction of the sentence".
15. The right to prefer appeal against the inadequacy
of the sentence has been given to the State government
under Section 377 of the Code and not to any other
Crl.a.625/2001 & 1448/2003 18
person. Section 374 of the Code guarantees for appeals
from conviction by a Sessions Judge or an Additional
Sessions Judge to the High Court. Section 377 empowers
the State Government to direct the Public Prosecutor to
present an appeal to the High Court against the sentence
on the ground of its inadequacy. Sub-section (3) of S.377
ensures that when an appeal has been filed against the
sentence on the ground of its inadequacy, the High Court
shall not enhance the sentence without giving to the
accused a reasonable opportunity of showing cause
against such enhancement. Therefore while showing
cause the accused has a right to plead for his acquittal or
for the reduction of the sentence. This position has been
explained by the Apex Court in its decisions in UJS
Chopra V. State of Bombay (AIR 1955 SC 633), Lingala
Vijay kumar V. Public Prosecutor (1978 SCC (Crl) 570).
A reading of Section 377, it would be visible that an
appeal on the ground of inadequacy of sentence can be
entertained by a court of sessions if a lenient sentence is
passed by a Magistrate. Like so, High Court can entertain
Crl.a.625/2001 & 1448/2003 19
an appeal for enhancement of sentence on the ground of
inadequacy if the sentence is passed by any other Court.
16. Where trial court convicts a person but instead
of imposing sentence of imprisonment, the person is
released on probation of good conduct under the
provision of Special law, then it could be said that no
sentence has been awarded, in such circumstance no
provisions of Section 377 of the Code are attracted. By
the operation of the non-obstrante clause of Section 11
(2) of the Probation of Offender's Act 1958, it is clear
that other provisions of the Code are clearly excluded.
Section 11 reads thus:-
11. Courts competent to make order under the Act,
appeal and revision and powers of courts in appeal
and revision - (1) Notwithstanding anything
contained in the Code or any other law, an order
under this Act, may be made by any court
empowered to try and sentence the offencer to
imprisonment and also by the High Court or any other
court when the case comes before it on appeal or in
revision.
2) Notwithstanding anything contained in the Code,
where an order under section 3 or section 4 is made
Crl.a.625/2001 & 1448/2003 20
by any court trying the offender (other than a High
Court), an appeal shall lie to the court to which
appeals ordinarily lie from the sentences of the former
court.
3) In any case where any person under twenty-one
years of age is found guilty of having committed an
offence and the court by which he is found guilty
declines to deal with him under section 3 or section 4,
and passes against him any sentence of
imprisonment with or without fine from which no
appeal lies or is preferred, then, notwithstanding
anything contained in the Code or any other law, the
court to which appeals ordinarily lie from the
sentences of the former court may, either of its own
motion or on an application made to it by the
convicted person or the probation officer, call for and
examine the record of the case and pass such order
thereon as it thinks fit.
4) When an order has been made under section 3 or
section 4 in respect of an offender, the Appellate
Court or the High Court in the exercise of its power of
revision may set aside such order and in lieu thereof
pass sentence on such offender according to law:
Provided that the Appellate Court or the High
Court in revision shall not inflict a greater punishment
than might have been inflicted by the court by which
the offender was found guilty."
A statutory legal remedy by way of appeal is provided
Crl.a.625/2001 & 1448/2003 21
under Section 11(2) against the order of the trial court
passed under Section 3 and 4 of the Probation of
Offenders Act and an appeal under Section 377 (1) Cr.P.C
is not maintainable.
17. This position has been explained by the Apex
Court in State of U.P. V. Nand Kishore Misra (1991
Supp(2) SCC 473)wherein it was held as follows:-
"5. The plain language of Section 377(1) makes
it clear that the State government can file an
appeal to the High Court "against the sentence
on the ground of its inadequacy". In a case
where the conviction is recorded by the trial
court but instead of awarding sentence of
imprisonment the convict is released on
probation under the provisions of the relevant
special law then it is a case where no sentence
at all has been awarded and as such the
provisions of Section 377(1) are not attracted.
The respondent has been released on probation
under Section 4 of the Act. The Act itself lays
down the procedure for appeal against an order
passed by the trial court under Section 3 or 4 of
the Act. Section 11(2) reproduced above
specifically provides that an appeal against an
order under Section 3 or 4 of the Act shall lie to
Crl.a.625/2001 & 1448/2003 22
the court to which the appeals ordinarily lie from
the sentences of the trial court which obviously
means the next superior court in the hierarchy.
Ordinarily appeals lie from the sentences
awarded by the Magistrate to the Court of
Sessions. The High Court was, therefore,
justified in holding that the appeal filed by the
State of U.P before the High Court was not
competent".
Hence an appeal under Section 377(1) of Cr.P.C
challenging the grant of benefit of probation will not be
maintainable.
18. In the light of the above circumstance, I may
conclude that the trial court felt that the accused 2 to 89
could get benefit of doubt, the said finding cannot be held
to be illegal or contrary to law. Hence even though in an
appeal against acquittal the powers of the appellate court
are wide, it can reappreciate and reconsider the entire
evidence, however the view taken by the trial court
acquitting them was plausible. At the same time a
statutory legal remedy is provided under Section 11(2) of
the Probation of Offenders Act against the order of
Crl.a.625/2001 & 1448/2003 23
Judicial First Class Magistrate, Androth releasing under
Section 3 and 4 of the Probation of Offenders Act.
Instead of seeking such remedy, an appeal by the
administrator, Union territory, Lakshadeep under section
377(1) of the Code, challenging the grant of benefit of
Probation will not be maintainable. While appreciating
the evidence in this case, I am of the view that the
conviction and sentence passed by the learned Magistrate
against A1 and releasing him under Section 4 of the
Probation of Offenders Act are only to be confirmed.
There is no merit in these appeals and both appeals
are dismissed.
P.D.RAJAN, JUDGE
lgk
Crl.a.625/2001 & 1448/2003 24
P.D.RAJAN, J
Crl.A.625/2001 & 1448/2003
JUDGMENT
22.03.2016