Noushad vs State Of Kerala
2021 Latest Caselaw 5658 Ker

Crl.R.P.No.923/2014                      1

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

               THE HONOURABLE MR. JUSTICE SUNIL THOMAS

       WEDNESDAY THE 17TH FEBRUARY 2021 / 28TH             MAGHA, 1942

                           Crl.Rev.Pet.No.923 OF 2014



AGAINST THE ORDER/JUDGMENT IN SC 365/2012 DATED 23-04-2014 OF II
               ADDITIONAL SESSIONS JUDGE ,KOLLAM


REVISION PETITIONER/ADDITIONAL ACCUSED:

               NOUSHAD,
               THENGAZHIKATHU VEEDU, NEAR PALLIMUKKU, MANAKADU
               CHERRY, VADAKKEVILA, KOLLAM DISTRICT.

               BY ADVS.
               DR.K.P.SATHEESAN (SR.)
               SRI.ANOOP.V.NAIR
               SRI.M.R.JAYAPRASAD
               SRI.P.MOHANDAS (ERNAKULAM)
               SRI.S.VIBHEESHANAN

RESPONDENTS/STATE & COMPLAINANT:

       1       STATE OF KERALA
               REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
               KERALA, ERNAKULAM, KOCHI - 682 031.

       2       THE CIRCLE INSPECTOR OF POLICE
               KOLLAM EAST POLICE STATION, KOLLAM - 691 001.

       3       SOBHA, AGED 37 YEARS, D/O SUBHADRA
               PULINTHANATH THEKETHIL, SURABHI NAGAR-26,
               PATTATHANAM,
               VADAKEVILA P O,VADAKEVILA VILLAGE, KOLLAM TALUK,
               KOLLAM DISTRICT
               IMPLEADED AS ADDL. 3RD RESPONDENT AS PER ORDER
               DTD.21.01.2021 IN CRL.MA.NO.2558/2016 IN
               CRL.RP.NO.923/2014

               R1     BY   ADV.   SRI.HARIDAS P.NAIR
               R1     BY   ADV.   SRI.KRISHNADAS P. NAIR
               R1     BY   ADV.   SRI.M.RAJESH KUMAR
               R1     BY   ADV.   SMT.K.L.SREEKALA
               R1     BY   ADV.   SMT.B.SABITHA DESOM
 Crl.R.P.No.923/2014              2

               R3 BY ADV. SRI.P.VIJAYA BHANU SR.
               R1 BY ADV. SRI.M.A.VINOD
               R1-2 BY ADGP SURESH BABU
               R3 BY SRI.KRISHNADAS P.NAIR, CGC

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 21-01-2021, THE COURT ON 17-02-2021 PASSED THE FOLLOWING:
 Crl.R.P.No.923/2014                      3




                               O R D E R

Dated this the 17th day of February 2021

The revision petitioner challenges the order in Crl.M.P.233/2013 in SC

No.365/2012 of the II Additional Sessions Court, Kollam, by which the

sessions Judge, invoking Section 319 of Cr.P.C. added the revision petitioner

herein along with another person as accused and, issued summons, calling

upon them to face the trial.

2. The facts leading to the case, as is discernible from the records, is as

follows; One Vijayakumar who was later examined as PW1, laid FIS on

24/11/1997 before the East Police, kollam, alleging that on that day at about

8.45 pm, while he was proceeding on a cycle with one Santhosh , they were

attacked by a group of assailants who came in an Ambasador car. It was

stated that, they were carrying sword and iron rods. Santhosh was greviously

injured with the sword and he died on the spot. Petitioner, the first

informant, also sustained injuries and he escaped from the spot. According to

him eight persons came in the car out of which, he named six, which

included member Ani and member Noushad. He could not mention the name

of two other identifiable persons. Member Noushad, admittedly referred to

the revision petitioner who was a member of the local body during the

relevant time.

3, FIS was registered as Crime 1094/1997 for offences punishable

under sections 143,147,148,324,302 read with section 129 IPC. Member Ani

and member Noushad were arrayed as accused Nos. 5 and 6 respectively in

the first information statement. In the course of investigation, the first

informant gave section 161 Cr.P.C.statement that he referred to the name of

member Ani and member Noushad on the basis of an assumption that they

had participated in the attack. He further stated that the above persons were

not involved. On the basis of it, final report was laid against seven persons

excluding member Ani and member Noushad. Cognizance was taken and

summons was issued to the accused in SC No.770/2002 for offences

punishable under sections 143,147,148,324 302 read with section 149 IPC

against seven persons. In the course of proceedings accused Nos. 2 and

7 absconded and remaining accused faced the trial. At the end of trial,

accused 1,3,4 and 6 were found guilty of offences under section 302 IPC and

they were convicted and sentenced to undergo imprisonment for life.

4. Thereafter, second accused surrendered and trial was ordered

against him in SC No.365/2012. In the course of trial, the first informant

-PW1 deposed about the presence of the revision petitioner and member Ani

and that they came along with other accused in the car. He also asserted

that ,the revision petitioner had instigated others to attack PW1. On the basis

of the above version of PW1, an application was filed by the public

prosecutor for invoking section 319 Cr.P.C.and to add the revision petitioner

and member Ani as accused. By order dated 23/4/2014, the learned

Sessions Judge added both the persons as accused invoking section 319

Cr.P.C. Summons were ordered to them. Revision petitioner herein

challenged that order in Crl.R.P.No.923/2014. It was allowed and the matter

was remanded for a fresh consideration in the light of the Constitution Bench

decision of the Supreme Court in Hardeep Singh v. State of Punjab [2014

1 KLT 336 (SC)]. After the remand, by Annexure 4 order, the court arrived at

the same conclusion and ordered summons to Ani and Noushad. This is

challenged by Noushad in this revision petition. Pending the revision, the

wife of the deceased got herself impleaded by order in Crl.M.A.2557/2016 on

the basis that she was the wife of the deceased and thereby, and has

substantial stake in the outcome of the litigation.

5. Heard the learned senior counsel for the revision petitioner, learned

Additional Director of prosecution and the learned senior counsel for the third

respondent, the wife of the victim.

6. The learned senior counsel for the revision petitioner contended that,

Section 319 of Cr.P.C was invoked by the Sessions Judge on the basis of the

singular evidence of PW1, who, in his chief examination referred to the

alleged presence of the revision petitioner at the spot. Other witnesses had

not been examined at that time. Hence, it was contended that, arraying one

person as accused on the solitary evidence of one witness alone, unless

there is some corroboration or confirmation,would be contrary to the law

settled by the Constitution Bench in Hardeep Singh's case. Another

contention was that, PW1, the first informant, had referred to the presence

of the revision petitioner and member Ani in FIS but in section 161

Cr.P.C.statement ,he gave a specific statement that Ani and Noushad were

referred to on a misconception. In the above circumstances, both the

above persons were excluded from the array of accused and the final report

laid. This become final in the absence of any challenge. It was also

contended that, PW1 was examined earlier in SC No.770/2002 and he had

given almost similar statement. It was contended that, neither the

prosecution nor the Sessions Judge at the time of trial in SC No. 770/2002,

on the basis of similar statement made by PW1, did not deem it fit to issue

summons to the revision petitioner and Ani invoking section 319 Cr.P.C. It

was further contended that, there were material evidences to show that,

before laying the FIS, the defacto complainant had met the local leaders and

hence, the possibility of a false implication of innocent prominent leaders

could not be ruled out. It was also contended that, during the earlier trial

PW1 was examined at length and in the new trial PW1 knew the loopholes

and the weakness of the prosecution case and the defence of the accused.

In the above circumstances, the possibility of PW1 giving an embellishment or

improved versions in the second trial could not be ruled out. Evidently, that

may prejudice the interest of the revision petitioner, it was argued. It was

further contended that the only allegation against the revision petitioner was

that he had shouted that "kill him". According to PW1, such an utterance was

made, aiming at him. It was stated that after that utterance, no further

overtact was committed by any of the assailants. Evidently, there was nothing

on record to show that the petitioner shared any common intention or

common object with the other accused. It was also contended that there was

no evidence to show, when the unlawful assembly began and when the

unlawful assembly came to an end. In the light of the above contentions, it

was contended by the learned senior counsel for the revision petitioner that,

the impugned order was not legally sustainable and was liable to be set

aside.

7. Before going into the legal proposition advanced, it is essential to

refer to the versions spoken by PW1. In the chief examination, PW1 had

stated that few persons whose names were specifically referred by him, got

out of the car and they attacked the victim. It was stated that the other

remaining accused also slashed on the body of the deceased. At that time,

one Santhosh hit the defacto complainant with a stick. Member Noushad

shouted to "kill him". According to PW1, it referred to him. It seems that,

there is no specific indication as to whom the revision petitioner meant. This

needs a clarification in the evidence which is not available. Thereafter, in the

cross examination,he was specifically asked whether he had given a

statement to the police that he gave First Information statement under a

misconception that Noushad and member Ani were there. When he was

confronted with his statement under section 161Cr.P.C,which was read over

to him he denied the suggestion. This contradiction was marked as Ext.D1.

Evidently, this deposition of PW1 is liable to be confirmed . It seems that, the

court below ignoring these facts,invoked section 319 Cr.P.C, prematurely on

the basis of the evidence tendered by PW1. The learned senior counsel

referred to a catena of decisions to establish the grounds on which,and the

circumstances under which, Section 319 Cr.P.C.can be invoked.

8. To substantiate the contentions, learned counsel referred to the

decision in Michael Machado and another v. Central Bureau of

Investigation and another(AIR 2000 SC 1127). It was held that, invoking

power under section 319 Cr.P..C, addition of person as co -accused at

belated stage after cross examination of 54 witnesses and at the cost of de

novo trial was not justified. In Krishnappa v. State of Karnataka (2004) 7

SCC 792) wherein on merits, it was held that there was some substance in

the contentions set up by the accused. In Brindaban

Das and Others v. State of West Bengal 2009 (1) KLT Suppl. 621 (SC )

it was held that. there must be substantive evidence against a person in order

to summon him for trial, although he was not named in the charge sheet or

has been discharged from the case which would warrant his prosecution

thereafter, with a good chance of conviction. In Brejendra Singh and

others v. State of Rajasthan (2017 KHC 6361) , it was held that power

under section 319 Cr.P.C. was a discretionary and an extraordinary power

which has to be exercised sparingly and only in those cases where the

circumstances of the case, so warrant. It was not to be exercised because

the Magistrate or the Sessions Judge was of the opinion that some other

persons may also be guilty of committing that offence. Only where strong and

cogent evidence occurs against a person from the evidence led before the

court, that such power should be exercised and not in a casual and cavalier

manner. In Sunilkumar Gupta and others v. State of Uttar Pradesh and

Others (2019 KHC 6244) identical question came up before the Supreme

Court under Section 319 Cr.P.C. It was held that, for summoning an accused

under Section 319 Cr.P.C. it requires much stronger evidence than mere

probability of his complicity. In Rajesh and others v. State of Haryana

(2019 KHC 6523) it was reiterated that, the power under Section 319 Cr.P.C.

can be exercised on the basis of statement made in the examination in chief

of the witness concerned and the court need not wait till the cross

examination of such a witness is done. It was held that, from the statement

on record, it should appear that such a person can be tried.

9. The Constitution Bench in Hardeep Singh's case(cited supra) after

elaborate consideration of all the judgments involved, considered the scope of

section 319 Cr.P.C. and the quality of materials required for invoking the

provision under section 319 Cr.P.C. It was held that under section 319

Cr.P.C.. though the test of prima face case was the same, the degree of

satisfaction that was required was much stricter . It was held that the Court

need not be satisfied that he has committed an offence. It need only appear

to it that he has committed an offence. It was held that test to be applied

was one which must be more than prima facie case, as exercised at the time

of framing charge, but short of satisfaction to an extent that the evidence, if

goes unrebutted, would lead to conviction.

10. Applying the above para meters laid down by the various decisions,

especially the Constitution Bench decision in Hardeep Singh's case, it is

evident that slightly higher degree of evidence is required to invoke Section

319 Cr.P.C. It is true that in the present case, PW1 had given a statement

that the revision petitioner was present at the time of incident. However, he

had version that before the incident when they had started from a coffee

shop, he saw member Noushad and Member Ani talking to another accused.

While they were proceeding on a motor cycle they were hit from behind an

ambassador car and when they fell down, both of them were attacked. The

deceased was hacked to death. Thereafter, he mentioned that the revision

petitioner instigated others to attack referring to himself. To a specific

question in the chief examination as to how did the revision petitioner reach

the spot, his answer was that the revision petitioner was there in the car along

with the other accused. It is pertinent to note that, in the cross examination it

was brought out that, the PW1 had given a statement under section 161

Cr.P.C. that he had referred to the names of member Ani and member

Noushad on a misconception. Thereupon, detailed investigation was

conducted and the revision petitioner and member Ani were not arrayed as

accused in the final report. They were not called upon to face the first trial.

Even when PW1 was examined in the first round of trial, neither the court

nor the prosecution deem it fit and proper on the same materials to issue

summons. On the very same version given by PW1 in the subsequent trial,

summons was ordered. There is considerable force in the contention of the

learned senior counsel that, at the second trial PW1 had known about the

defence likely to be set up by the accused and also he was able to plug the

loopholes in the prosecution case.

11. Having evaluated the entire fact, I feel that there was no sufficient

material to reach the quality prescribed by the Constitution Bench of the

Supreme Court. Having applied the law on the facts, I find that the exercise

of jurisdiction of the court below was not based on the sufficient materials.

Having considered this, I am inclined to interfere in the impugned order and

it is liable to be set aside.

In the result, the revision is allowed . The impugned order is set aside .

The court below is directed to proceed with the trial as against the

remaining accused. The revision is accordingly allowed.

Sd/-

SUNIL THOMAS

JUDGE

dpk