Kerala High Court

T.N. Gopi vs State on 3 November, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
             THE HONOURABLE MRS. JUSTICE MARY JOSEPH
  WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                      CRL.MC NO. 2135 OF 2021
AGAINST THE COMMON ORDER DATED 17.02.2021 IN CMP NOS.234/2021 AND
  299/2021 OF ADDITIONAL SESSIONS COURT-VII, THIRUVANANTHAPURAM


PETITIONER/ACCUSED:

          T.N. GOPI,
          AGED 70 YEARS,
          S/O NEELAKANTAN, MANICHIRAKKAL VEEDU, PANDIPARA, 8TH
          MILE, THONDYPARAMBU, KALVARY MOUNT P.O. THANKAMONY
          VILLAGE, IDUKKI DISTRICT.

          BY ADVS.SRI.S.RAJEEV
                  SRI.K.K.DHEERENDRAKRISHNAN
                  SRI.V.VINAY
                  SRI.K.ANAND (A-1921)
                  SRI.M.S.ANEER


RESPONDENT/STATE:

          STATE
          REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
          ERNAKULAM,682 031, (CRIME NO. 17/2018 OF EXCISE CIRCLE
          OFFICE, THIRUVANANTHAPURAM)

          BY ADVS.SRI.P.NARAYANAN, ADDITIONAL PUBLIC PROSECUTOR
                  SRI.GRACIOUS KURIAKOSE, ADDITIONAL DIRECTOR
                                        GENERAL OF PROSECUTION




     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
     29.10.2021, THE COURT ON 03.11.2021   PASSED THE FOLLOWING:
 Crl.M.C.No.2135 of 2021                2




                                                            'C.R.'



                                   ORDER

Dated this the 3rd day of November, 2021

The petition on hand is filed seeking to quash the common

order passed by Additional Court of Sessions-VII,

Thiruvananthapuram (for short 'the court below') on 17.02.2021

in CMP Nos.234/2021 and 299/2021. CMP No.234/2021 was

filed by the counsel for the 3 rd accused seeking to issue process

to CW1 to CW3, CW10, CW13, CW14 and CW17, the

prosecution witnesses. CMP No.299/2021 was filed later to

incorporate the provision which enables the court to grant the

relief sought which was omitted to be mentioned in CMP

No.234/2021.

2. A Common Order was passed on 17.02.2021 by the

court below in both applications, dismissing the same. It can

be seen from the discussion in the impugned order that during

the course of argument the counsel for the petitioner has

submitted that CMP No.299/2021 was infact filed under Section

233 Cr.P.C. It was observed by the court below in the impugned

order that in both applications the same set of facts were

narrated by the petitioners.

3. Against the order dismissing the petitions that the

petitioner has approached this Court seeking to quash the

same. It is urged in CMP No.234/2021, process needs to be

issued to some prosecution witnesses to appear and identify the

persons found in the visuals drawn from the CCTV footages and

produced before the court. The application was filed during the

course of examination of witness No.5 of accused number three,

who is none other than his wife, on 06.02.2021.

4. The learned Public Prosecutor has resisted the

application stating that the defence witness especially witness

No.5 has got previous acquaintance with the Excise Officials

against whom process is sought to be issued. She herself and

her son visited Excise Office on umpteen number of occasions

for varied reasons. The records pertaining to the release of the

vehicle available in the court itself is a good indicator about

the acquaintance of the defence witness and the excise

officials. The defence witness had the opportunity to see the

excise officials during the course of trial also, as they were

already examined in the case by the prosecution. More than two

years have already been passed since the detection of the

offence and the prayer now sought is nothing but abuse of

process of the court and the ulterior motive behind is to prolong

the trial. The petitions filed were sought to be dismissed for

the above reasons.

5. The relevant paragraphs of the impugned order

which incorporate the reasoning of the court below while

dismissing the petitions are extracted hereunder:

"5. In other words, there is no provisions in law to make identification proceedings as of right of the accused. The accused cannot compel to hold identification proceedings. Further, it is to be noted that identity is part of investigation and not trial.

6. The idea of identification proceedings is to test the veracity of the witnesses on the question of his capability to identify unknown person when the witnesses may have seen once. In other words, identification proceedings arises only when the persons sought to be identified are not previously known to the witness. Identification is meaningless if witnesses know the persons.

7. In this context it is to be noted that it is salutary principle in a session's trial that no opinion as to reliability or acceptability of evidence should be arrived by the judge until whole evidence is before him more particularly when in the present case the trial is at the fag end.

8. Further, there can be no quarrel regarding the right of court to view the electronic record. But in the case on hand, the prayer sought is based on the identification to be made by the judge on viewing the record and then enter a finding. By indulging in such an exercise, the trial judge would virtually transform himself into a witness. The act of the judge in substituting himself in the place of witness and entering a finding on that basis has no sanction of law."

Undoubtedly the trial court Judge has gone wrong in

making observations as above.

6. The trial in which petitions have been moved is

progressing in a case involving a serious offence under the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short 'the NDPS Act'). Stringent punishment is provided under

various provisions of the NDPS Act and once the guilt against

the accused is proved, he is liable to meet those. Moreover,

presumption available under Section 54 NDPS Act is also a

factor which constraints the accused in a prosecution of the

nature while proceeding to defend the case. Therefore, the

attempt of the defence to adduce evidence in it's move to rebut

the presumption and to establish his innocence cannot be

declined by the court below. The Apex Court has reiterated in a

number of occasions while dealing with alike issues that trial

courts shall not sit to shut down evidence. The evidence must

be let to be adduced. The relevancy and admissibility of

evidence are matters to be dealt with in the process of

appreciation. Evidence once attempted to be taken by the

defence, if denied by the trial court, when the judgment is

assailed before the appellate court, it will be compelled to

remand the case back to the trial court to see that opportunities

are availed by the party who was declined to do so. This

undoubtedly would consume the precious time of the court and

the money of the exchequer. The parties would also be

burdened and prejudiced by the prolonged prosecution

unnecessarily, especially when the punishment liable to be

imposed is stringent and harsh.

7. The learned Additional Director General of

Prosecutions though opposed the application primarily and

vehemently argued on various grounds mentioned supra,

lateron, placed a ruling of the Apex Court in Bipin Shantilal

Panchal v. State of Gujarat [2001 KHC 326 (SC)] wherein

directions are issued for compliance of trial courts. Applications

are frequently coming to this Court seeking to set aside alike

orders passed by trial courts and this Court, finds it relevant

and appropriate to reiterate the dictum in Bipin Shantilal

supra to apprise and remind the trial court that when fully

convinced on the attempt of the party proposing additional

evidence in his case that the claim is not a frivolous or

vexatious one and not intending to protract the proceedings of

the case unnecessarily, the trial courts shall allow the same.

The relevant paragraphs of the dictum which incorporate

directions on the point are extracted hereunder:

"13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the Trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the Trial Court. In such a situation the higher court may have to send the case back to the Trial Court for recording that evidence and then to dispose of the

case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.

14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the Trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is substainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

15. The above procedure, if followed, will have two advantages. First is that the time in the Trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need

not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the Trial Court, can determine the correctness of the view taken by the Trial Court regarding that objection, without bothering to remit the case to the Trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."

8. In the light of the discussions made above, the

Crl.M.C. is allowed and the common order passed by Additional

Sessions Judge-VII, Thiruvananthapuram in CMP Nos.234/2021

and 299/2021 on 17.02.2021, assailed in the petition on hand

is set aside. CMPs are allowed. The court below shall permit the

petitioner to adduce the evidence proposed to be adduced.

The Registry shall issue this Order to all trial courts for

compliance in matters pending before it so that unnecessary

interventions and delay can be avoided and time and money

can be saved.

sd/-

MARY JOSEPH JUDGE MJL