Kerala High Court

Saneer vs State Of Kerala Represented By Sub ... on 18 June, 2025

CRL.A NO. 791 OF 2025          :1 :               2025:KER:43619


          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

           THE HONOURABLE MR. JUSTICE GOPINATH P.

 WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947

                     CRL.A NO. 791 OF 2025

AGAINST THE JUDGMENT DATED 03.04.2025 IN SC NO.167 OF 2018

OF   ADDITIONAL   DISTRICT   COURT     &   SESSIONS   COURT-   VII,

ERNAKULA / III ADDITIONAL MACT, ERNAKULAM

APPELLANT/ACCUSED:

          SANEER
          AGED 26 YEARS
          HOUSE NO. 13, UDAYA COLONY, KADAVANTHARA P.O,
          ELAMKULAM VILLAGE, ERNAKULAM, PIN - 682020


          BY ADV SHRI.SANIL KUMAR

RESPONDENT/COMPLAINANT:

          STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF
          POLICE,KADAVANTHARA POLICE STATION,
          REPRESENTED BY THE PUBLIC PROCECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

          BY ADV.SRI.VIPIN NARAYANAN A., SR.PP

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
18.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 CRL.A NO. 791 OF 2025        :2 :             2025:KER:43619


                 GOPINATH P., J.
     ===========================
           Crl.Appeal No.791 of 2025
     ============================
      Dated this the 18th day of June, 2025


                        JUDGMENT

This appeal has been filed challenging the

conviction and sentence imposed on the appellant in

S.C.No.167 of 2018 on the file of the Additional District and

Sessions Court-VII, Ernakulam.

2. The learned counsel appearing for the appellant

submits that, apart from the contentions taken on the

merits of the matter, the appeal is liable to be allowed on a

short point. It is submitted that the proceedings before the

trial Court will indicate that on 06.03.2025, CWs 2 and 8

were examined as PWs 3 and 4, and evidence for the

prosecution was closed and the case was posted on

11.03.2025 for examination u/s 313 Cr.PC. It is submitted

that on 11.03.2025, the prosecution had filed a petition for

reopening the evidence and on 19.03.2025, the matter was

posted to 24.03.2025 for the examination of the additional

witness cited for the prosecution. It is submitted that on CRL.A NO. 791 OF 2025 :3 : 2025:KER:43619

24.03.2025, the additional witness was not present and the

matter was adjourned to 28.03.2025. It is submitted that

on 28.03.2025, the appellant/accused was present and PW6

(additional witness) was examined, and the accused was

also further questioned u/s 313 Cr.PC. It is submitted that

on 28.03.2025, the Court records that there is no ground to

acquit the accused u/s 232 Cr.PC and thereafter proceeded

to record that the counsel for the accused had submitted

that there is no evidence for the defence and that he is

ready for arguments in the case, and thereafter the Court

heard the case and posted the matter for judgment on

03.04.2025. It is submitted that on 03.04.2025, the

judgment was pronounced finding the appellant/accused

guilty of the offence punishable u/s 22(c) of the NDPS Act

and convicting him for the offence u/s 235(2) Cr.PC. It is

submitted that on the same day, the matter was posted at

2.30 p.m. for hearing the accused on the matter of

sentence, and the appellant/accused was sentenced to

rigorous imprisonment for 10 years and to a fine of Rs. 1

lakh. It is submitted that the learned counsel for the

appellant/accused has not made any submission before the CRL.A NO. 791 OF 2025 :4 : 2025:KER:43619

trial Court that there is no defence evidence. It is

submitted that going by the provisions of s.233 Cr.PC, after

the prosecution evidence was closed, the Court ought to

have posted the case for defence evidence. It is submitted

that the failure to post the case for defence evidence and

taking the matter as heard on the date on which the last

prosecution witness was examined was not proper.

3. The learned Public Prosecutor submits that no relief

can be granted to the appellant on the above ground, now

projected before the Court. The learned Public Prosecutor

submits that a perusal of the proceedings sheet in SC

No.167/2018 does not indicate that the Court had posted

the matter for defence evidence. It is submitted that

though to ensure a fair trial and to ensure that no

complaints of this nature are made at a later stage, it would

always be appropriate that the Court had posted the case

for defence evidence and had then recorded that there is no

defence evidence. It is submitted that in the facts of the

present case, it appears that on the day on which the last

prosecution witness was examined as PW6, the Court CRL.A NO. 791 OF 2025 :5 : 2025:KER:43619

recorded that there is no defence evidence and proceeded

to hear the matter finally. The learned Public Prosecutor,

however, has pointed out that a Full Bench of this Court in

Moidu K. v. State of Kerala; 2009(3) KHC 89 has taken

the view, though the provisions of s. 232 Cr.PC are

mandatory; the failure to comply does not ipso facto vitiate

the trial. It is submitted that only where serious and

substantial prejudice has been demonstrated would failure

to comply with the provisions in s. 233 Cr.PC vitiate the

trial.

4. The learned counsel for the appellant submits that

in Satbir Singh v. State of Haryana; 2021 (3) KLT

Online 1111 (SC), the Supreme Court has observed that

where the Court concludes that there is no ground to acquit

the accused u/s. 232 Cr.PC, it must move on to fix the date

for defence evidence, and since that has not been done in

the facts of the present case, the trial was vitiated.

5. Having heard the learned counsel for the appellant

and the learned public prosecutor and having perused the

records, I am of the view that the appeal is to be allowed by CRL.A NO. 791 OF 2025 :6 : 2025:KER:43619

way of remand. A perusal of the proceedings before the

trial Court in S.C.No.167/2018 will indicate that on

28.03.2025, the last witness on behalf of the prosecution

was examined and the accused was also further questioned

u/s. 313 Cr.PC. The Court also concluded that there was no

ground to acquit the accused u/s. 232 Cr.PC. A reading of

the provisions of s. 233 Cr.PC will indicate that the Court

should have at that stage, proceeded to fix a date for the

defence evidence. However, the proceedings do not

indicate that the Court fixed any date for defence evidence

and instead proceeded to record that there was no defence

evidence and also proceeded to hear and reserve the case

for judgment. The decision of the Full Bench of this Court

in Moidu (supra) indicates that the provisions of s. 233 are

mandatory. The conclusions of the Full Bench in Moidu

(supra) read as follows:

"49. Having considered the question of law with the help of principles and precedents, we come to the conclusion that the correct position of law has to be stated as follows:

(i) S.232 and 233 of the Cr.PC are mandatory in the sense that all Sessions Courts are expected to comply CRL.A NO. 791 OF 2025 :7 : 2025:KER:43619

with those provisions strictly and earnestly and the compliance should be reflected in the proceedings.

(ii) However, non-compliance of the said provisions does not, ipso facto, vitiate the proceedings.

(iii) If it is shown that the omission to comply with the provisions has resulted in serious and substantial prejudice against the accused and consequent failure of justice, such omission vitiates the proceedings from that stage and superior Courts will be justified in setting aside the final order and directing the Sessions Court to continue trial from the state afresh.

(iv) If there be substantial compliance and if there be no serious and substantial prejudice against the accused and no resultant failure of justice flowing from the inadequacy in compliance, such inadequacy/irregularity is curable under S.465 Cr.PC and such inadequacy /non compliance will not vitiate the proceedings or lead to invalidation of the subsequent proceedings."

Though this Court in Moidu (supra) holds that non-

compliance with the provisions of s.233 may not, ipso facto,

vitiate trial, this Court cannot be oblivious to the fact that

the accused in this case is facing a charge u/s. 22(c) of the

NDPS Act, which exposes him to a minimum sentence of 10

years and a minimum fine of Rs.1 lakh. Therefore, it was

incumbent on the part of the trial Court to ensure that the

proceedings also demonstrate that a fair chance was given

to the accused to adduce evidence in defence, if any. From CRL.A NO. 791 OF 2025 :8 : 2025:KER:43619

the proceedings in this case, I am unable to conclude that

such a fair chance was given to the accused. In Satbir

Singh (supra), the Supreme Court observed as follows:

"21. Section 232, Cr.PC assumes importance, which reads as, "If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal". Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232, Cr.PC, it must move on and fix hearings specifically for 'defence evidence', calling upon the accused to present his defense as per the procedure provided under Section 233 Cr.PC, which is also an invaluable right provided to the accused. Existence of such procedural right cohesively sits with the rebuttable presumption as provided under Section 113 B, Evidence Act."

The decision in Satbir Singh (supra), in my view, fortifies

the case of the appellant/accused that the case should have

been posted for defence evidence to a particular date, and

on that day, possibly the Court could have recorded, if at

all, that there was no defence evidence. Since that has not

been done in the facts of the present case, this appeal is

allowed, and the conviction and sentence imposed on the

appellant in S.C.No.167/2018 will stand set aside.

CRL.A NO. 791 OF 2025 :9 : 2025:KER:43619

S.C.No.167/2018 shall stand restored to the file of the VIIth

Additional District and Sessions Court, Ernakulam for

proceeding further from the stage of s. 232 Cr.P.C. Since