Kerala High Court
Asok Kumar Aged 34 Years vs State Of Kerala on 28 February, 2014
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 6TH DAY OF MARCH 2014/15TH PHALGUNA, 1935
Crl.MC.No. 1453 of 2014
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SC NO. 1034/2009 OF IST ADDL.ASSISTANT SESSIONS COURT,
THIRUVANANTHAPURAM DATED 28-02-2014
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PETITIONER(S)/ACCUSED NO.1:
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ASOK KUMAR AGED 34 YEARS,
S/O. SREESHARAN, KIZHAKKE VEEDU,
NELLIKKAKUZHY,
KANJIRAMKULAM.
BY SRI.P.VIJAYA BHANU,SENIOR ADVOCATE
ADVS. SRI.V.C.SARATH
SRI.VIPIN NARAYAN
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2. S.S.BATTAVE, AGED 51 YEARS,
S/O. SUGADEV HARICHANDRA BATTAVE,
SUBHASH THEKKADY CAMP NO.4, BLOCK NO.A-416,
ULLAS NAGAR, THANE, MAHARASHTRA - PIN-400 031.
R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.P.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 06-03-2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Kss
Crl.MC.No. 1453 of 2014
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEXURE A : COPY OF THE ORDER BAIL ORDER IN BA NO.8184 OF 2013 OF
THIS HON'BLE COURT DTD.9.12.2013.
ANNEXURE B : COPY OF THE APPLICATION FOR EXAMINATION OF 7
WITNESSES ON THE SIDE OF THE PETITIONER AS DEFENCE WITNESSES
DTD.28.2.2014.
RESPONDENT(S)' ANNEXURES:
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/TRUE COPY/
P.A.TO JUDGE
Kss
K. Ramakrishnan, J.
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Crl.M.C.No.1453 of 2014
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Dated this, the 06th day of March, 2014.
O R D E R
This is an application filed by the first accused in S.C.No.1034/09 on the file of the 1st Additional Assistant Sessions Court, Thiruvananthapuram, seeking certain direction under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that the petitioner is the first accused in S.C.No.1034/09 (wrongly shown as S.C.No.1034/13 in the synopsis as well as statement of facts of the petition) pending before the 1st Additional Assistant Sessions Court, Thiruvananthapuram. The petitioner along with three others were charge sheeted by Pettah Police Station, alleging offences under Sections. 120B, 307 read with Section 34 of Indian Penal Code. Earlier, he was released on bail and charge was framed against him, it was read over and explained and he pleaded not guilty along with the other accused persons. Subsequently, his bail was cancelled and he was remanded to custody till the disposal of the case as a report was filed that he was threatening CW12 and attempted to take away the witness. Then, he approached this court and this court granted bail as Crl.M.C.No.1453 of 2014 : 2 : per Annexure A1 order. The prosecution witnesses were examined and accused were questioned under Section 313 of Code of Criminal Procedure and the case was posted to 25.11.2013 for defence evidence. On that day, the Counsel for the petitioner submitted that there is no defence evidence for the first accused as he was in custody at that time. After examining some of the witnesses summoned on the side of other accused persons, the evidence was closed and posted for hearing to 28.02.02014. On that day, petitioner filed an application for examination of seven witnesses on his side as defence evidence, but, no orders have been passed in that application and Assistant Sessions Judge proceeded with the hearing of the case. So, the petitioner has no other remedy except to approach this court for seeking direction under Section 482 of Code of Criminal procedure. So, the petitioner filed the application seeking the following relief:
"To allow this Criminal Miscellaneous Case and allow the application filed by the petitioner for adducing his defence evidence dated 28.02.2014 in S.C.No.1034 of 2009 on the file of the 1st Additional Assistant Sessions Court, Thiruvananthapuram, so as to secure the ends of justice."
3. Since the Public Prosecutor is representing the interest of the de-facto complainant as well, notice to de facto Crl.M.C.No.1453 of 2014 : 3 : complainant is dispensed with and this court felt that this can be disposed of at the time of admission stage itself after hearing the Counsel for the petitioner and the learned Public Prosecutor.
4. On the basis of the allegations in the petition, a report has been called for from the learned Assistant Sessions Judge regarding the allegations made for which the learned Assistant Sessions Judge has sent a report as follows:
"With reference to the above, I may submit that SC 1034/09 was initiated as crime No.107/08 of pettah police station alleging an offence punishable under sec.120(B) 307 read with 34 IPC (acid attack Security Manager, Air India) against 4 accused.
The evidence of prosecution was closed on 18.11.2013 and case was posted for defence evidence after complying Sec 313 CrPC to 25/11/2013. On 25/11/2013 counsel for A1 was submitted, no defence evidence for A1 which was recorded by this court. A2, A3 and A4 were produced witness schedule, thereby, this court was ordered them to produce defence witness to 27/11/2013. On 27/11/2013 counsel for A4 submits, case was stayed by the Hon'ble High court, subsequently stay order in Crl.M.C.5600/13 in Crl.M.A 9713/13 of the Hon'ble High court was produced. Thereafter, summons was served against defence witness at the expense of state as ordered by Hon'ble High Court. On 18/02/2014 witness for A4 was examined as DW1 and Exbt D4 marked, witness for A2 and A3 were absent and case was adjourned for further defence evidence to 22/02/2014. On 22/02/2014 DW2 was examined and marked Exbt.D5. Thereafter, case was posted for hearing to 24/02/2014. In fact on 24/02/2014, A2 and A3 were filed CMP 51/24 for summoning Crl.M.C.No.1453 of 2014 : 4 : original of Ext.D5 from Mumbai, said CMP was dismissed on the ground that Exbt D5 was marked through DW2. Again case was posted for hearing to 28/02/2014. On 28/02/2014 this court had heard prosecution side as well as A4. A1 has filed CMP 55/2014 with witness schedule containing 7 witnesses with a prayer for issuing summons against witness without filing petition for reopening defence evidence. Out of 7 witnesses, one witness is brother of A1. Said petition was posted for objection and hearing along with hearing of original case to 3/3/2014. On 3/3/2014, no argument was advanced by counsels for A1 to A3. Both counsels sought adjournment for hearing alleging that both counsel are suffering from toothache and cervical spontelosis time was granted again posted for hearing with CMP 55/2014 to 7/3/2014. All accused are on bail.
Counsels for defence are protracting the disposal of the case one way or other way knowing that I am under transfer, their intension is simply to delay the matter, on the ground that evidence of this case was recorded by me and not to dispose of this case by me. That is the sole reason why A1 has filed witness schedule with 7 witnesses without a petition to reopen the defence evidence. Apart from, counsel for defence tried their level best to adjourn the trial of the case at the starting point of trial which was not fulfilled. The aforesaid facts are true and correct.
For favour of necessary action."
5. Heard the Counsel for the petitioner and the learned Public Prosecutor.
6. The Counsel for the petitioner submitted that since he was in custody, he could not give proper instruction to his Crl.M.C.No.1453 of 2014 : 5 : Counsel. Further, though the petition was numbered by the learned Assistant Sessions Judge, no orders have been passed in that application as well, that causes prejudice to the accused.
7. On the other hand, the learned Public Prosecutor submitted that the attempt of the accused is only to protract the proceedings as the Judicial Officer is under the orders of transfer.
8. On going through the report of the Assistant Sessions Judge, it is seen that after examination of the accused persons under Section 313 of Code of Criminal Procedure, it was posted for defence evidence and on that day, the Counsel for the petitioner submitted that there is no defence evidence for the first accused. But, some of the other persons have filed witness list and the learned Assistant Sessions Judge has directed to produce the witnesses which was questioned by them before this court as C.rl.M.C.No.5600/13 and that was allowed by this court directing the Assistant Sessions Judge to issue summons to the witnesses as provided under Section 233 of Code of Criminal Procedure and accordingly, those witnesses were examined. It is also seen from the report that accused No.2 and 3 filed C.M.P.No.51/14 to summon the original of Crl.M.C.No.1453 of 2014 : 6 : Ext.D5 from Mumbai, and that petition was dismissed on the ground that Ext.D5 was marked through DW2. It is thereafter, the case was posted to 28.02.2014. It was on that day that the petitioner filed a petition to examine seven witnesses along with an application to examine them and that was numbered as C.M.P.No.55/14. It is mentioned in the report that, the petition was not accompanied by any application to reopen the evidence. So, no orders have been passed. The Counsel for the petitioner submitted before this court that it was not filed by the Counsel, but, the accused himself has produced the petition directly.
9. It may be mentioned here that there is a duty cost on the court to dispose of an application filed by the parties and proceeding with the case further, without passing an order in that application is likely to cause prejudice to the party. In this case, though the court has numbered the application filed by the petitioner herein as C.M.P.No.55/14, no orders have been passed in that application so far and that was also posted along with the case to 07.03.2014, ie., tomorrow. If it is not accompanied by the application to reopen the evidence and if that court felt that without such an application, this petition Crl.M.C.No.1453 of 2014 : 7 : cannot be considered. the court have instructed the party who filed the application if he is not represented by Counsel when the application was filed to that effect. That was not done in this case. So, considering the circumstances, the proceeding with the case without disposing C.M.P.No.55/14 by the court below is not proper. The Assistant Sessions Judge should have disposed of C.M.P.No.55/14 before further proceedings with the case. So, there is some force in the submission made by the Counsel for the petitioner that without disposing of the application, proceeding with the case of hearing of the parties is unjustifiable. So, this court feels that the petition can be disposed of as follows:
If the petitioner files an application for re-open the evidence also on or before 12.03.2014, then, the learned Assistant Sessions Judge is directed to consider that application along with C.M.P.No.55/14 and pass appropriate orders in accordance with law on that application also on the same date. If the court is satisfied with the reasons stated in the petition for non- examination of the witnesses on the earlier occasion, that may also be considered by the court while appreciating the petition. However, even if the application is allowed by the court, the learned Assistant Sessions Judge is directed to post the case for further defence evidence and dispose of the case as early as possible before the court closes for summer vacation. Crl.M.C.No.1453 of 2014 : 8 : With the above direction and observation, the petition is disposed of. Office is directed to communicate this order to the court below by fax at the earliest possible time.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge