Kerala High Court
Roykutty.K vs State Of Kerala on 4 July, 2022
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,
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
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
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
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.
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
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
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.
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
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;
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
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
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
