IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
MONDAY, THE 4TH DAY OF JULY 2022 / 13TH ASHADHA, 1944
CRL.MC NO. 2726 OF 2022
[TO SET ASIDE THE COURT CHARGE IN S.C.NO.770/2019 ON THE FILE OF
THE SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM]
PETITIONER/19TH ACCUSED:
ROYKUTTY K.
AGED 45 YEARS
S/O.K.KUTTY, 'SOPANAM', BHARATHEEPURAM, KOLLAM , PIN -
691312
BY ADVS.
SRI.P.VIJAYABHANU, SR. ADVOCATE
K.SIJU
S.ABHILASH
ANJANA KANNATH
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM , PIN - 682031
2 CENTRAL BUREAU OF INVESTIGATION
SCB/CBI/SPE, THIRUVANANTHAPURAM REPRESENTED BY THE
CENTRAL GOVERNMENT STANDING COUNSEL, PIN - 695010
R2 BY ADV. SRI.SUVIN R. MENON.
OTHER PRESENT:
FOR R1 BY ADV. SYLAJA S.L -P.P
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 26.05.2022, ALONG WITH Crl.Rev.Pet.307/2022, THE COURT ON
04.07.2022 PASSED THE FOLLOWING:
CRL.M.C.No.2726 & Crl.RP No.307 of 2022 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
MONDAY, THE 4TH DAY OF JULY 2022 / 13TH ASHADHA, 1944
CRL.REV.PET NO. 307 OF 2022
[AGAINST THE ORDER DATED 20.09.2021 IN CRL.M.P.NO.82/2021 IN
S.C.NO.770/2019 ON THE FILE OF SPECIAL JUDGE (SPE/CBI),
THIRUVANANTHAPURAM]
REVISION PETITIONER/PETITIONER/19TH ACCUSED:
ROYKUTTY.K
AGED 45 YEARS
S/O.K.KUTTY, 'SOPANAM', BHARATHEEPURAM, KOLLAM, PIN -
691312
BY ADVS.
SRI.P.VIJAYABHANU SR.ADVOCATE
K.SIJU
S.ABHILASH
ANJANA KANNATH
RESPONDENTS/STATE AND COUNTER PETITIONER/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 CENTRAL BUREAU OF INVESTIGATION
SCB/CBI/SPE, THIRUVANATHAPURAM REPRESENTED BY THE
CENTRAL GOVERNMENT STANDING COUNSEL, PIN - 695010
R2 BY ADV. SRI.SUVIN R. MENON.
FOR R1 BY ADV. SYLAJA S.L -P.P
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 26.05.2022, ALONG WITH Crl.MC.2726/2022, THE COURT
ON 04.07.2022 PASSED THE FOLLOWING:
CRL.M.C.No.2726 & Crl.RP No.307 of 2022 3
ORDER
[Crl.MC No.2726/2022 & Crl.RP No.307/2022] The above Crl.Revision Petition and Crl.M.C. are filed by the 19th accused in S.C.No.770/2019 of Special Judge (SPE/CBI), Thiruvananthapuram (hereinafter referred to as 'Special Court'). Crl.R.P. is filed challenging the order passed by the Special Court on the application submitted by him seeking discharge. After the order of dismissal of the aforesaid application, the Special Court framed charges against the accused persons, including the petitioner and Crl.M.C.No.2726/2022 is filed challenging the court charge framed against the petitioner in the aforesaid case.
2. The aforesaid Sessions Case arises from Crime No.314/2010 of Yeroor Police Station, CRL.M.C.No.2726 & Crl.RP No.307 of 2022 4 which was registered for the offences punishable under Sections 143,147,148,450,307,506(ii)r/w Section 34 of the Indian Penal Code (IPC) and Section 27 of the Arms Act. The crime was registered in connection with an incident in which accused persons brutally attacked one Ramabhadran. After the registration of the F.I.R, the said Ramabhadran died, and consequently, the offence under Section 302 IPC was incorporated. Subsequently, as the relatives of the deceased raised certain complaints about the investigation, the same was handed over to the Crime Branch and a charge sheet was submitted by the Crime Branch after completing the investigation. However, the wife of the deceased Ramabhadran approached this Court by filing W.P.(C)No.7433/2014 and as per the judgment dated 15.10.2015, this Court directed the Central Bureau of Investigation to take over the investigation and to conduct the de novo CRL.M.C.No.2726 & Crl.RP No.307 of 2022 5 investigation. Based on the same, the investigation was conducted by C.B.I after re- registering the case as RC 02(S)/2016. In the charge submitted by the C.B.I., the petitioner was implicated as the 19th accused.
3. The prosecution case against the petitioner as per the final report submitted by the C.B.I. is as follows:
"That Shibu(A-5), Vimal(A-6), Sudeesh (A-7), Shan(A-8), Ratheesh (A-9), Biju(A-10),Renjith (A-11), Riyas(A-14), Markson(A-15) and Sreekumar (approver) in pursuance of the conspiracy with Gireesh (A-1), Padman (A-2), Afsal (A-3), Najumal(A-4), Sali @ Kochunni (A-
12), Riyas @ Muneer (A-13), Raveendran Pillai @ Pothuravi (A-20) and Rajeev (approver) on 10.04.2010 at around 21.00 hrs unlawfully assembled at Rationkadamukku, Nettayam, Yeroor, Kollam as mentioned in Charge No.1 and in prosecution of the common object of committing murder of Shri. Ramabhadran, A-5, A-6, A-7, A- 8, A-11, A-14 & A-15 trespassed into the house CRL.M.C.No.2726 & Crl.RP No.307 of 2022 6 of Ramabhadran with deadly weapons and brutally hacked Ramabhadran and inflicted 26 brutal injuries which they knew it was likely to cause death and was sufficient in the ordinary course of nature to cause death, as narrated in Charge No.1 and Ramabhadran succumbed to his injuries at about 03.15 AM on 11.04.2010 at Gokulam Medical College and that Suman (A-16), Babu Panicker (A-17), Jayamohan (A-18) and Roykutty (A-19) on or about 11.04.2010 harboured the accused person A-2, A-3, A-5, A-6, A-7, A-8, A- 9, Rajeev (approver) and Sreekumar (approver) knowing at the time of harbouring that the said A-2, A-3, A-5, A-6, A-7, A-8, A-9, Rajeev (approver) and Sreekumar (approver) had committed the offences of criminal conspiracy, murder etc. and that Jayamohan (A-18) committed an offence punishable under section 212 of IPC."
4. Thus, on going through the allegations above, it can be seen that, the specific role assigned to the petitioner is that, he along with accused Nos.16,17 and 18, harboured accused CRL.M.C.No.2726 & Crl.RP No.307 of 2022 7 Nos.2,3,5,6,7,8 and 9 and also two other accused persons named Rajeev and Sreekumar who were turned as approvers in this case. Thus, the primary allegation against the petitioner is for attracting the offence punishable under Section 212 of IPC.
5. The petitioner submitted Crl.MP No.82/202 before the Special Court seeking discharge. The aforesaid application was taken up by the learned Special Judge along with Crl.M.P.No.81/2021 which was filed by the accused No.18 against whom the prosecution raises the allegation of the same nature. Both the aforesaid applications were dismissed as per common order dated 20.09.2021. Challenging the aforesaid order, Crl.R.P.No.307/2022 is filed. Subsequently, as the charges were framed by the learned Special Judge, Crl. M.C.No.2726/2022 was filed challenging the same, which is produced as Annexure-1 in the said Crl.M.C.
CRL.M.C.No.2726 & Crl.RP No.307 of 2022 8
6. Heard Sri. P.Vijayabhanu, the learned Senior Counsel appearing for the petitioner and Smt. Shylaja S.L., the learned Public Prosecutor for the 1st respondent and Sri.Suvin R. Menon, the learned counsel appearing for the 2nd respondent.
7. The learned counsel for the petitioner points out that, no materials are available on record to implicate the petitioner for the offences alleged against him. On the other hand, the aforesaid averments are objected to by the learned counsel appearing for the 2nd respondent.
8. It is seen from the records that, the challenge against the order passed by the Special Judge in Crl.M.P.No.81/2021 was considered by this Court in Crl.R.P.No.519/2021, which was filed by the 18th accused and it resulted in Annexure-7 order which is produced in Crl.M.C.No.2726 of 2022. It is discernible that after CRL.M.C.No.2726 & Crl.RP No.307 of 2022 9 examining all the contentions of the petitioner and respondents therein, a detailed order has been passed by this Court, dismissing the aforesaid Crl.R.P., holding that, the order passed by the learned Special Judge dismissing the application for discharge is legally sustainable. However, it was found that the court, while framing the charge against the 18th accused, committed an error. This Court specifically found that, even though the specific allegation against the accused No.18 as per the final report submitted by the C.B.I. was only about harbouring some of the accused persons, while framing the charge, he was also implicated for the other offences, including the commission of the offence under Section 308 IPC. Annexure- 7 order was passed by this Court as a common order passed in the Crl.R.P.No.519/2021 and Crl.M.C.No.4545/2021 filed by the 18th accused challenging the order of dismissal of CRL.M.C.No.2726 & Crl.RP No.307 of 2022 10 the application for discharge and the charge framed by the court respectively.
9. It is an important aspect to be noticed that going by the final report submitted by the C.B.I., the allegation against the petitioner and the 18th accused are the same, i.e. they have harboured some of the accused persons. There is no allegation against the petitioner or the 18th accused that they were parties to the conspiracy for commission of the crime or they have physically participated in the murder of the said Ramabhadran. It was in that circumstances, this Court categorically held in Annexure-7 common order that, the learned Special Judge committed an error while framing charge against 18th accused under Sections 109,114,120B,143,147,148,201,212,302,447,448,449 452,506(ii) r/w. Section 149 of the Indian Penal Code.
CRL.M.C.No.2726 & Crl.RP No.307 of 2022 11
10. The observations made by this Court in paragraph 15 in Annexure-7 order, which is relevant for this case, are extracted hereunder:
"15. Even the objection raised by the Public Prosecutor and also the argument of the learned Central Government Counsel do not suggest that the prosecution has a case that the accused was part of the criminal conspiracy prior to the commission of the crime. In other words, roles have been attributed against him only under Section 212 of the IPC, i.e., post execution of the crime, that he had harboured the real culprits knowing that they are the actual offenders. But the court charge would indicate that he had larger roles, prior to the execution of the crime also. That is incorrect and therefore, the court charge framed against the petitioner will stand quashed and the learned Special Judge is directed to frame the charge afresh on the basis of the observations made above. Thus, the Crl. M.C is allowed to the above extent."
11. Since the allegations contained in the final report against the petitioner herein and the 18th accused are the same, all the findings and observations made by this Court in Annexure A7 order are equally applicable to the CRL.M.C.No.2726 & Crl.RP No.307 of 2022 12 petitioner as well. Thus, the only conclusion possible is that, even though there are materials that prima facie establish the offence under Section 212 of IPC against the petitioner herein, there is absolutely no allegation or supporting materials to conclude that the other offences alleged in the final report are attracted against the petitioner herein. Therefore, to that extent, the charge framed against the petitioner, produced as Annexure-1 in Crl.M.C. No.2726/2022, is liable to be modified.
In the result, the above Crl. R.P. and Crl. M.C are disposed of with the following findings and directions:
i) The order passed by the Special Judge (SPE/CBI),Thiruvananthapuram in Crl.M.P. 82/2021 dated 20.09.2021 is upheld subject to the observations made above;
CRL.M.C.No.2726 & Crl.RP No.307 of 2022 13
ii) The charge framed by the Special Judge (SPE/CBI), Thiruvananthapuram, against the petitioner, which is produced as Annexure-1 in the Crl.M.C., shall stand quashed to the extent it affects the petitioner herein, and the Special Judge is directed to frame a charge against the petitioner in tune with the observations made in this case, i.e. confining to the offence under section 212 of Indian Penal Code, if not already framed in that manner;
iii) The aforesaid charge shall be framed within one month from the date of receipt of copy of this order.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE pkk CRL.M.C.No.2726 & Crl.RP No.307 of 2022 14 APPENDIX OF CRL.REV.PET 307/2022 PETITIONER'S ANNEXURES:
Annexure1 THE RELEVANT PAGE OF THE FINAL REPORT AS AGAINST THE PETITIONER/19TH ACCUSED Annexure2 THE COPY OF DEPOSITION OF CW1 (APPROVER) ALONG WITH TYPED COPY Annexure3 THE COPY OF REPORT ALONG WITH TYPED COPY DATED 13.4.2010 IDENTIFYING AND INCORPORATING ACCUSED NOS. 1 TO 6 IN CRIME NO.314/2010 OF YEROOR POLICE STATION SUBMITTED BY THE INSPECTOR OF POLICE, ANCHAL Annexure4 THE COPY OF PETITION IN CRL.M.P NO.82/2021 IN SC NO.770/2019 BEFORE THE SPECIAL COURT (SPE/CBI), THIRUVANANTHAPURAM Annexure5 THE COPY OF COUNTER STATEMENT FILED BY THE PUBLIC PROSECUTOR FOR CBI Annexure6 THE COPY OF ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO.519/2021 DATED 5.4.2022 CRL.M.C.No.2726 & Crl.RP No.307 of 2022 15 APPENDIX OF CRL.MC 2726/2022 PETITIONER'S ANNEXURES Annexure1 THE CERTIFIED COPY OF COURT CHARGE FRAMED AGAINST THE PETITIONER AND OTHERS DATED 20.9.2021 Annexure2 THE RELEVANT PAGE OF THE FINAL REPORT AS AGAINST THE PETITIONER/19TH ACCUSED AS CHARGE NO.109 Annexure3 THE COPY OF STATEMENT GIVEN BY THE APPROVER (CW1) U/S 306 CR.P.C DATED 25.02.2017 ALONG WITH ITS TYPED COPY Annexure4 THE COPY OF REPORT ALONG WITH TYPED COPY DATED 13.4.2010 IDENTIFYING AND INCORPORATING ACCUSED NOS. 1 TO 6 IN CRIME NO.314/2010 OF YEROOR POLICE STATION SUBMITTED BY THE INSPECTOR OF POLICE, ANCHAL Annexure5 THE COPY OF PETITION FILED U/S 227 OF CR.P.C BY THE PETITIONER/19TH ACCUSED AS CRL.M.P NO.82/2021 IN SC 770/2019 ON THE FILE OF SPECIAL COURT (SPE/CBI), THIRUVANANTHAPURAM Annexure6 THE COPY OF COUNTER STATEMENT FILED BY THE CBI PROSECUTOR IN SC 770/2019 ON THE FILE OF SPECIAL COURT (SPE/CBI), THIRUVANANTHAPURAM Annexure7 THE COPY OF ORDER PASSED BY THIS HON'BLE COURT IN CRL.R.P NO.519/2021 DATED 5.4.2022