Kerala High Court
Vinod vs State Of Kerala on 10 March, 2020
Bench: A.Hariprasad, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941
CRL.A.No.243 OF 2020
AGAINST THE JUDGMENT IN SC 239/2017 DATED 10-02-2020 OF ADDITIONAL
SESSIONS COURT - IV, KOLLAM
CRIME NO.115/2012 OF ANCHALUMMOODU POLICE STATION , KOLLAM
APPELLANTS/ACCUSED NOS.1 TO 9:
1 VINOD,AGED 42 YEARS
S/O.GOPALAN, VAYALINKARA VEEDU, KADAVOOR CHERI,
THRIKKADAVOOR, FROM THEKKEDATH VEEDU,
NEAR PATHINETTAMPADI, MATHILILCHERI,
THRIKKADAVOOR VILLAGE.
2 GOPAKUMAR @ GOPAN,AGED 36 YEARS
S/O.GOPINATHAN PILLAI, INDIRA BHAVAN @ IDYATHU VEEDU,
KOTTAKKAKAMCHERI, THRIKKADAVOOR, FROM AMBADI VEEDU,
NEAR KADAVOOR TEMPLE, KADAVOOR CHERI,
THRIKKADAVOOR VILLAGE.
3 SUBRAHMANIYAN,AGED 40 YEARS,S/O.VIDYADHARAN,
THAVARTH VEEDU, NEAR THAVARATH TEMPLE, KOIPPALLI,
KADAVOOR CHERI, THRIKKADAVOOR VILLAGE.
4 PRIYARAJAN @ ANIYAN,AGED 39 YEARS
S/O.PRABHAKARAN, VAIKAM THAZHATHIL VEEDU,
KADAVOOR CHERI, THRIKKADAVOOR, FROM MUTHALAYAZHIKATH
VEEDU, KADAVOOR CHERI, THRIKKADAVOOR VILLAGE.
5 PRANAV,AGED 29 YEARS,S/O.GOPALAKRISHNAN,
PARAPPATHUVILA THEKKATHIL VEEDU, PARAPPATHUVILA
JUNCTION, KADAVOOR CHERI, THRIKKADAVOOR VILLAGE.
6 ARUN SIVADASAN @ HANI,AGED 36 YEARS,
S/O.SIVADASAN, SREELAKSHMI, KIZHAKKADATH,
KADAVOOR CHERI, THRIKKADAVOOR VILLAGE.
7 RAJANEESH @ RENJITH,AGED 31 YEARS
S/O.JAGANATHAN, ABHI NIVAS, NEAR MATHA HOSPITAL,
MATHILIL CHERI, THRIKKADAVOOR, FROM GAGADEESH BHAVAN,
MATHILIL CHERI, THRIKKADAVOOR.
Crl.Appeal No.243 of 2020 2
8 DINARAJ,AGED 31 YEARS,S/O.BABY RAJAN,
LALIVILA VEETIL, MATHILIL CHERI, THRIKKADAVOOR,
FROM ALAVATTATHEKKATHIL VEEDU, MATHILIL CHERI,
THRIKKADAVOOR.
9 SHIJU @ ELUMALA SHIJU,AGED 36 YEARS
S/O.RAJENDRAN, GOPALA SADANAM,
NEAR ELUMALA TEMPLE, NJARAKKALCHERI,
THRIKKARUVA VILLAGE.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.),
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
SRI.V.C.SARATH
SRI.AJEESH K.SASI
SMT.POOJA PANKAJ
SRI.KRISHNADAS P. NAIR
SRUTHY N. BHAT
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY SHRI S.U.NAZAR, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.03.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.243 of 2020 3
"C.R."
A.HARIPRASAD & M.R.ANITHA, JJ.
--------------------------------------
Crl.Appeal No.243 of 2020
--------------------------------------
Dated this the 10th day of March, 2020
JUDGMENT
Hariprasad, J.
In this appeal against conviction, the main allegation raised is that the trial court negated valuable rights of the appellants by denying an opportunity to argue the case.
2. Heard learned senior counsel for the appellants and learned Senior Public Prosecutor for the respondent/State.
3. Accused 1 to 9 in Sessions Case No.239 of 2017 before the Additional Sessions Judge-IV, Kollam are in appeal challenging the conviction and sentence imposed on them by the learned trial Judge under Sections 143, 147, 148, 324 and 302 read with Section 149 of the Indian Penal Code, 1860 (in short, "IPC"). Learned Additional Sessions Judge acquitted the appellants for offences under Sections 120B and 201 IPC.
4. At the time of admission of the appeal, learned senior counsel contended that the trial court flouted not only the provisions in the Code of Criminal Procedure, 1973 (in short, "Cr.P.C."), but also the sublime Crl.Appeal No.243 of 2020 4 principles of natural justice. According to him, the trial court entered conviction without affording an opportunity to the appellants for being heard. In the appeal memorandum, detailed averments are made regarding various posting dates of the case and events transpired on each date. Learned senior counsel argued that the court below was hostile to the appellants during the trial itself. It did not even afford an opportunity of a fair trial. Since the appellants raised serious allegations against the procedure adopted by the trial court and also about non-adherence to the principles of natural justice, we carefully perused the impugned judgment and the order sheet in the above Sessions Case, maintained by the trial court, which is forwarded by the Principal Sessions Judge, Kollam. On seeing that the contentions of the appellants are prima facie acceptable, on 20.02.2020 we passed an order in Crl.M.A.No.1 of 2020 suspending the sentence of appellants for a period of two weeks and releasing them on interim bail with conditions. On 20.02.2020 itself we passed another order which reads as follows:
" 2. We hereby direct the Registrar (Subordinate Judiciary) to forward a copy of the appeal memorandum along with the impugned judgment and annexures to the learned Additional Sessions Judge-IV who passed the order of conviction on 01.02.2020 in Sessions Case No.239 of 2017 before the Additional Sessions Court-IV, Kollam, wherever he works at present. Learned Additional Sessions Judge is directed to explain why action shall not be taken against him for disobeying the orders Crl.Appeal No.243 of 2020 5 passed by this Court in Tr.P.(Crl.) No.8 of 2020 dated 30.01.2020. The explanation shall be submitted by the officer concerned before this Court on or before 03.03.2020. We also direct the Registrar (Subordinate Judiciary) to produce orders regarding the relief of the said officer from the post of Additional Sessions Judge - IV, Kollam to take up an assignment as Co- operative Tribunal, Thiruvananthapuram.
After retaining copies, original of the proceeding papers shall be returned to the lower court."
5. In compliance with the above direction, learned Additional Sessions Judge, who convicted the appellants and who has gone on deputation as Presiding Officer, Kerala Co-operative Tribunal, Thiruvananthapuram, submitted an explanation on 02.03.2020. In his explanation, all the allegations in the appeal memorandum relating to the procedural irregularity and personal bias are specifically denied. He has also submitted that he did not violate any directions passed by this Court. It is the version that his conscience instructed him that he himself should dispose of the case as he had recorded the evidence. We do not intend to judge the persona of any judicial officer and also we do not want to cast any aspersion regarding the conduct of the learned Additional Sessions Judge. There is no material available to think that the violation of procedure, if any established, was done by the judicial officer with any malice or ill-will. However, we are duty bound to enter a finding as to whether the appellants' valuable rights are infringed by any act on the part of the trial Judge.
Crl.Appeal No.243 of 2020 6
6. We may refer to the proceedings paper in the above Sessions Case to find out whether there was any serious breach of the appellants' procedural or natural rights.
7. On completing the investigation in the case, the investigating officer filed a final report before the Magistrate concerned, who in turn, on finding that the case is exclusively triable by a Court of Session, committed the case to the Court of Session, Kollam. It was made over for trial and disposal to the Additional Sessions Court-IV, Kollam. On 14.03.2017 summons was issued to all the accused directing them to appear on 21.06.2017. On that day, some of the accused appeared and some others abstained. Later, all the accused appeared on 25.11.2017 and all of them were heard under Section 227 Cr.P.C. Then the case was adjourned for framing charge to 12.01.2018. Thereafter the case underwent various adjournments. Finally, on 07.04.2018, charges were framed against the accused for which they pleaded not guilty. After various adjournments, summons was issued to the witnesses on 04.04.2019 to be examined on different dates. Recording of evidence in the case started on 27.06.2019. That process went on for so many days. Finally, the prosecution evidence was closed on 07.12.2019. Then the case was adjourned for questioning the accused under Section 313 Cr.P.C. to 10.12.2019. It was again adjourned for the same purpose to 16.12.2019. On that day, the accused were questioned. As the learned Sessions Judge found the accused were not entitled to be acquitted under Sections 232 Crl.Appeal No.243 of 2020 7 Cr.P.C., they were directed to enter on defence and the case was adjourned for defence evidence to 18.12.2019. A couple of adjournments for defence evidence was granted. Ultimately on 31.12.2019, the defence witnesses were examined. After closing the defence evidence, the case was adjourned for hearing to 07.01.2020.
8. In the meantime, the accused filed Crl.M.P.No.957 of 2019 before the trial court under Section 311 Cr.P.C. for recalling PWs 1, 2 and
4. That application was disallowed by the trial court. Against that order the accused approached this Court with Crl.M.C.No. 6906 of 2019. A learned single Judge disposed of the said Crl.M.C. on 24.10.2019 by passing the following order:
"12. In the result, the petition is disposed of as follows: The learned Sessions Judge shall verify and ascertain whether the charge sheet and other documents filed by the prosecution in the court contain statements of the witnesses PW1, PW2 and PW4, which were recorded by the investigating officer (CW58). For this purpose, accused 5, 6 and 9 shall produce before the learned Sessions Judge copies of such statements allegedly furnished to them under Section 207 or 208 of the Code which are in their possession, if already not produced. If any such statement is there, the learned Sessions Judge shall recall PW1, PW2 and PW4 and grant opportunity to the defence to further cross- examine the aforesaid witnesses with reference to such statements. It is made clear that further cross- examination of the aforesaid witnesses in such a Crl.Appeal No.243 of 2020 8 situation shall not be conducted on any other matter. On the other hand, if the records of the case do not contain any such statement of the aforesaid witnesses recorded by the investigating officer (CW58), the prayer for recalling the witnesses, which now stands rejected by the learned Sessions Judge, shall stand confirmed. It is made clear that this Court has not interfered with Annexure-E common order passed by the learned Sessions Judge on any other aspect."
9. Thereafter, the accused filed Crl.M.P. No.18 of 2020 before the trial court on 06.01.2020. That application was also dismissed on 07.01.2020 and the case was adjourned for hearing to 08.01.2020. On that day, the court below heard the Prosecutor and adjourned the case to 09.01.2020 for hearing the defence. At that time, the accused filed Crl.M.C.No.145 of 2020 before this Court against rejection of their application filed under Section 311 Cr.P.C. for recalling PWs 1, 2 and 4. This Court disposed of Crl.M.C.No.145 of 2020 vide order dated 27.01.2020 which is produced as Annexure-A in the appeal. Learned single Judge found no reason to interfere with the impugned order and dismissed the Crl.M.C. with a direction to the trial Judge to take expeditious steps for disposal of the case.
10. The case was again posted on 28.01.2020. As per the order sheet (proceedings paper), on 28.01.2020 all the accused appeared before the trial court. It is also seen endorsed in the order sheet that the court heard them and the case was reserved for judgment to 01.02.2020. Thereafter, the accused approached this Court with Tr.P.(Crl.)No. 8 of Crl.Appeal No.243 of 2020 9 2020 seeking transfer of the case from the Court of Additional Sessions Judge-IV to some other court on the ground that the Judge was about to dispose of the case without affording them an opportunity of being heard. As per Annexure-D order dated 30.01.2020, this Court disposed of the Tr.P.(Crl.) with following directions:
"Considering the facts and circumstances of the case, I am not inclined to transfer the case as required in the petition. However, I direct the learned Sessions Judge to give a reasonable opportunity to the defence counsel for being heard before the judgment is pronounced."
11. When Annexure-D order was passed by this Court, the trial Judge advanced the case suo moto on 31.01.2020. The proceedings on that particular day reads as follows:
"31.01.2020 : Suo moto advanced as per the Order of the Hon'ble High Court in T.P.(Crl)8/2020. A5, A7 absent. Others present. The Learned Counsels were given opportunities to argue the matter. The Prosecution has already argued the matter. The defence counsel are not prepared to argue the matter. The Opportunity given to them is not utilised by them. For Judgment. 01.02.2020. Id/ Judge."
12. These observations by the trial Judge are vehementally disputed by the learned senior counsel contending that despite the direction by this Court in the order passed in Tr.P.(Crl.) No.8 of 2020 on 30.01.2020, the learned trial Judge did not afford a reasonable opportunity to the defence counsel to present their case. Instead, in the evening on Crl.Appeal No.243 of 2020 10 30.01.2020, the counsel appearing for the accused received a whatsapp message from an officer of the court below informing that the case was posted to 31.01.2020 for hearing the accused. It is the allegation that on receipt of the message, the counsel cross-checked the information with the e-courts status of the case, wherein it was found that the case was posted to 01.02.2020 for judgment. It is submitted for the appellants that the counsel appearing for accused 3, 4 and 8 is the Special Prosecutor for CBI cases before this Court. As he was engaged before this Court, an application was filed through his junior intimating his inconvenience to appear and argue the case. That application is Annexure-E. Another similar application was filed on behalf of some other accused, which is marked as Annexure-F. Both the applications were rejected and the case was again reserved for judgment to 01.02.2020. According to the learned senior counsel, the court below did not afford any opportunity to the appellants, leave alone a reasonable opportunity, to argue their case and the opportunity said to have been given was illusory.
13. It is also pointed out that there is no legal or procedural law backing for the course adopted by the court below in sending whatsapp message regarding posting of the cases. Learned Additional Sessions Judge was in a haste to pronounce judgment before relieving from that post and taking up a deputation assignment. We do not find any provision authorising the trial court to send whatsapp message regarding posting of cases.
Crl.Appeal No.243 of 2020 11
14. On 01.02.2020, accused persons filed applications for excusing their absence. Those applications were rejected and the court below pronounced the judgment convicting the appellants for the aforementioned offences. Then, the bail bonds were cancelled and non- bailable warrants were issued for securing their presence before the court. Thereafter, learned Additional Sessions Judge, who pronounced the judgment of conviction, relieved himself from the post and took up an assignment on deputation. His successor in office took follow up actions for procuring the presence of the convicted persons. Finally, on 10.02.2020 the accused appeared before the court and they were sentenced. The trial court thereafter sent them to prison for serving out the sentence.
15. Learned senior counsel contended that repeated mentioning by the trial Judge, in his judgment, that the appellants were heard is an untrue statement. In many paragraphs in the judgment, the trial Judge has mentioned that the counsel for appellants argued very many points in support of their case. According to the learned senior counsel, all such statements are incorrect as they were not given any opportunity to argue the case. The expressions like "defence counsel vehementally contended", "defence counsel argued", etc. appearing in the trial judgment are made up consciously with an intention to mislead the appellate court, contended the learned senior counsel. It is also pointed out that it is humanly impossible to pronounce a judgment running to 55 pages, having Crl.Appeal No.243 of 2020 12 elaborate discussions about factual aspects and legal principles, within a time span of 24 hours. Going by the records produced from the court below, it is seen that the case was reserved for judgment on 31.01.2020 and the judgment was pronounced on 01.02.2020. Noticing bulk of the factual and legal issues considered by the trial Judge and volume of the judgment, we are of the view that the judgment could not have been prepared within 24 hours of hearing. We cannot ignore worldly experiences and realities. If that be so, contention of the appellants, that the judgment had already been prepared before 31.01.2020 and it was pronounced on 01.02.2020 without hearing the appellants, becomes highly probable. On an evaluation of the entire materials placed before us, we have every reason to accept the contention raised by the appellants that the trial Judge could have made the judgment ready by 31.01.2020 without hearing the defence counsel. As mentioned above, a voluminous judgment could not have been written up within one day and that too, when the defence counsel have a specific case that they were not allowed to present their version before the trial court. We are inclined to think that the trial Judge did flout not only the mandatory procedural rules, but also the principles of natural justice.
16. We are not oblivious of the contents in Section 234 Cr.P.C. It says that when the examination of witness (if any) for the defence is complete, the Prosecutor has to sum up his case and the accused and his pleader shall be entitled to reply. In unambiguous terms it is expressed Crl.Appeal No.243 of 2020 13 that the accused has a right to reply to the submissions of the Prosecutor. Same aspect is discernible from Section 235 Cr.P.C. also wherein it is stated that after hearing the arguments and points of law (if any), the Judge shall give a judgment in the case. Even though it may appear that there is no provision for adjourning a Sessions case for hearing, the Sections make it mandatory that the defence should be heard before pronouncing a judgment. From the facts and circumstances brought out, we are tempted to believe that there was no fair opportunity given to the defence to present their case.
17. It is the mandate of Article 21 of the Constitution of India that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The procedure established in the Cr.P.C. cannot be brushed aside by gainsaying that procedural law is always a handmade and substantial justice is the mistress. In our view this statement of law may not be of universal application and need not be true under all circumstances. Myriad situations can exist where non-adherence to the mandatory procedure causing substantial prejudice to a party, especially to an accused in a criminal case. Therefore, no one shall trivialise non-compliance of an obligatory/imperative procedural law saying that it would not affect quality of the trial. In fact, non-observance of mandatory procedure would, in many cases, cause negation of vested rights of an accused and prosecution and at times it may even impinge on a right to fair trial.
Crl.Appeal No.243 of 2020 14
18. Needless to say, a fair trial is a trial by which law has been administered with fairness, without prejudice to any of the parties. In the light of Article 21 of the Constitution, the accused has a non-negotiable right to have a fair trial, especially those who face very serious charges. In Zahira Habibulla H.Sheikh v. State of Gujarat ((2004) 4 SCC 158), the Supreme Court said thus:
"'Fair trial' means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried, is eliminated. 'Fair trial' obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. If the witnesses get threatened or are forced to give false evidence that also would not result in a 'fair trial'. The failure to hear material witness is certainly denial of 'fair trial'.
19. The expression "fair trial" includes fair and proper opportunity allowed by law to prove a person's innocence. As we are dealing with a Sessions Case involving serious allegations, the principles relating to fair trial should be understood from the stand point of the accused as well as that of the prosecution. In other words, indisputable is the principle that a fair trial in a criminal prosecution must be understood from the side of the accused as well as the prosecution. The accused persons should get full opportunity to defend the case projected against them. They are permitted in law to challenge the prosecution case by raising all lawful grounds. Similarly, the prosecution is also entitled to have an opportunity to place all the relevant materials before the court in order to help it to arrive at a Crl.Appeal No.243 of 2020 15 correct conclusion. We are inclined to think that the society at large is also an ultimate beneficiary of a fair trial. As we know, trial in a Sessions Case begins by framing the charge and ends by pronouncing the judgment. A fair trial in a Sessions Case, resulting in a balanced judgment, will have an impact in the collective conscience of the society. Viewing in a larger perspective, a fair trial is not only a constitutional and natural rights of an accused, but also a right inhering in the prosecution. Also, its result will have a direct bearing on the civil society.
20. Needless to point out that judicial impartiality and honesty are sacrosanct. Zeal to dispose as many cases as possible is a laudable quality for a Judge, especially at a time when we talk about docket explosion. But, it shall never be at the cost of quality of the judgment. Legal rights of a party shall not be a causality in a hurry to dispose of cases.
21. Having regard to the facts and circumstances brought out in this case, we are of the view that the learned Additional Sessions Judge, in a hurry to take up another post, disposed of the case violating the natural rights of the accused. We make it very clear that we are not pronouncing anything touching the merit of the case. We are disturbed noticing the manner in which the case was handled by the court below. Therefore, we are of the view that the impugned judgment cannot stand on the ground of grave violations of the procedural law and natural justice.
In the result, the appeal is allowed. Judgment pronounced by the Crl.Appeal No.243 of 2020 16 Additional Sessions Judge-IV, Kollam in S.C.No.239 of 2017 is set aside finding that the conviction and sentence imposed on the accused cannot be legally justified. We remit the case to the Sessions Court, Kollam with a direction that the Principal Sessions Judge, Kollam shall consider the evidence on record and hear the learned Public Prosecutor and defence counsel and dispose of the case on merits untrammelled by any of the observations made in this judgment on or before 08.04.2020. The accused shall appear before the Principal Sessions Court, Kollam on 18.3.2020 and execute a fresh bail bond to the satisfaction of the Sessions Judge. Till then, the bail bond executed before this Court will remain in force. It is also directed that the defence side shall co-operate with the Court to dispose of the case as above.
All pending applications will stand closed.
A.HARIPRASAD, JUDGE.
M.R.ANITHA JUDGE.
cks Crl.Appeal No.243 of 2020 17 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A TRUE COPY OF THE ORDER IN
CRL.M.C.NO.145/2020 BEFORE THIS HON'BLE
COURT.
ANNEXURE B TRUE COPY OF THE PROCEEDINGS IN
S.C.NO.239/2017 OF THE ADDITIONAL
SESSIONS COURT, KOLLAM, DATED
28.1.2020.
ANNEXURE C TRUE COPY OF THE PROCEEDINGS IN
S.C.NO.239/2017 DATED 31.1.2020 OF THE
ADDITIONAL SESSIONS COURT IV, KOLLAM.
ANNEXURE D TRUE COPY OF THE ORDER IN
TR.P(CRL.)NO.08/2020 DATED 30.1.2020.
ANNEXURE E TRUE COPY OF THE APPLICATION.
ANNEXURE F TRUE COPY OF THE PETITION, DATED
31.1.2020 FILED BY COUNSELS FOR ACCUSED
1, 2 AND 4 BEFORE THE ADDITIONAL
SESSIONS COURT IV, KOLLAM.
ANNEXURE G TRUE COPY OF THE PROCEEDINGS IN
S.C.NO.239/2017, DATED 1.2.2020 OF THE
ADDITIONAL SESSIONS COURT IV, KOLLAM.