Kerala High Court
Sasidharan vs State Of Kerala on 28 March, 2025
2025:KER:27611
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947
CRL.REV.PET NO. 2009 OF 2013
AGAINST THE JUDGMENT DATED 19.07.2013 IN Crl.A NO.367 OF 2012
OF III ADDITIONAL DISTRICT COURT, KOLLAM ARISING OUT OF THE JUDGMENT
DATED 30.11.2012 IN SC NO.24 OF 2010 OF ASSISTANT SESSIONS COURT,
KARUNAGAPPALLY
REVISION PETITIONER/APPELLANT IN CRL.A.367/2012/ACCUSED IN SC 24/2010:
SASIDHARAN, AGED 42 YEARS
S/O.KARUNAKARAN, DIVYA BHAVAN,
NADUVILE MURI, SOORANAD SOUTH VILLAGE,
KUNNATHOOR TALUK, KOLLAM DISTRICT
BY ADV SRI.P.V.DILEEP
RESPONDENT/COMPLAINANT - RESPONDENT IN CRL A 367/2012/COMPLAINANT IN
SC 24/2010:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERAL, ERNAKULAM
OTHER PRESENT:
Sri. Ranjit George-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P.2009/2013
2
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ORDER
This criminal revision petition is preferred impugning the
judgment of the learned 3rd Additional Sessions Judge, Kollam in
Crl.A.No.367/2012.
2. The revision petitioner herein is the sole accused in
Crime No.77/2005 of Karunagappally Excise Range registered for offence
punishable under Section 55(g)of the Abkari Act.
3. The prosecution case is that, on 07.12.2005 at about
5.15p.m., the accused was found in possession of about 30 liters of wash in
two cans having the capacity of 55 liters each on a ridge of Kizhakkan Ele in
Sooranad North village, in contravention of the provisions of the Abkari Act
and Rules.
4. The trial court convicted and sentenced the accused to
undergo simple imprisonment for six months and to pay a fine of
Rs.1,00,000/-, in default to undergo simple imprisonment for 30 days.
5. The appellate court confirmed the conviction and
sentence. Impugning the judgment of the learned Additional Sessions
Judge, the accused preferred this revision.
6. Before the trial court, PWs.1 to 4 were examined, Exts.P1
to P8 were marked and MO1 was identified. PW1 is the Excise Preventive
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Officer who detected the offence. PW3, Excise Inspector, Sasthamcotta had
registered the crime and occurrence report. PW4 Excise Circle Inspector
conducted the investigation and filed final report before the Court.
7. Thereafter, the case was committed to Assistant Sessions
Court, Karunagappally. After the closure of the prosecution evidence, the
accused was questioned under Section 313(1)(b) of the Code of Criminal
Procedure. After full fledged trial, the Assistant Sessions Judge convicted and
sentenced the accused as aforesaid.
8. I have heard Adv. Ranjit George, the learned Public
Prosecutor and Adv.P.V.Dileep, learned counsel appearing for the revision
petitioner.
9. The learned Public Prosecutor submitted that the
impugned order is legally sustainable and no interference, whatsoever, is
warranted in this matter. He further submitted that the prosecution has
succeeded in alleging and proving the charge against the revision petitioner.
10. Per contra, the learned counsel for the revision petitioner
submitted that the impugned order is illegal, irregular and improper. Both the
trial court and the appellate court had failed to note the illegalities and
improprieties in this case.
11. The learned counsel further submitted that the
prosecution has failed to allege and prove the charge against the accused
beyond reasonable doubt. He submitted that the penal statutes are to be
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interpreted strictly within the four corners of the Statute. Suspicion,
however strong it may be, it would not be a substitute for proof. The
impugned judgment is based on surmises and conjectures.
12. I have heard the rival submission of the counsel for the
parties and perused the records.
13. The learned counsel for the revision petitioner
contended that the investigation in this case was done after a lapse of four
years. The delay caused in investigation, ie., particularly with regard to the
questioning of the material witnesses and their statements, after a gap of
four years, would be fatal to the prosecution story. That itself cuts the very
root of the prosecution story.
14. Before further discussion, it may be useful to extract the
relevant provisions of the Code of Criminal Procedure and Abkari Act.
Section 173(1) of the Code of Criminal Procedure says that investigation
should be completed without unnecessary delay.
"173. Report of police officer on completion of
investigation.--
(1) Every investigation under this Chapter shall be
completed without unnecessary delay.
(1A) The investigation in relation to 3 [an offence under sections
376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E]
from the date on which the information was recorded by the
officer in charge of the police station.]
(2) (i) As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the form
prescribed by the State Government, stating-- (a) the names of
the parties;
(b) the nature of the information;
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(c) the names of the persons who appear to be acquainted with
the circumstances of the case;
(d) whether any offence appears to have been committed and, if
so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether
with or without sureties;
(g) whether he has been forwarded in custody under section 170.
[(h) whether the report of medical examination of the woman
has been attached where investigation relates to an offence
under 2 [ sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA,
376DB] or section 376E of the Indian Penal Code (45 of 1860)].]
(ii) The officer shall also communicate, in such manner as may
be prescribed by the State Government, the action taken by him,
to the person, if any, by whom the information relating to the
commission of the offence was first given.
(3) Where a superior officer of police has been appointed under
section 158, the report shall, in any case in which the State
Government by general or special order so directs, be submitted
through that officer, and he may, pending the orders of the
Magistrate, direct the officer in charge of the police station to
make further investigation.
(4) Whenever it appears from a report forwarded under this
section that the accused has been released on his bond, the
Magistrate shall make such order for the discharge of such bond
or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170
applies, the police officer shall forward to the Magistrate along
with the report--
(a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to the
Magistrate during investigation;
(b) the statements recorded under section 161 of all the persons
whom the prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such
statement is not relevant to the subject-matter of the
proceedings or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in the public interest,
he shall indicate that part of the statement and append a note
requesting the Magistrate to exclude that part from the copies to
be granted to the accused and stating his reasons for making
such request.
(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused copies of all
or any of the documents referred to in sub-section (5).
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate and, where
upon such investigation, the officer in charge of the police
station obtains further evidence, oral or documentary, he shall
forward to the Magistrate a further report or reports regarding
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such evidence in the form prescribed; and the provisions of sub-
sections (2) to (6) shall, as far as may be, apply in relation to
such report or reports as they apply in relation to a report
forwarded under sub-section (2).
50. Report of Abkari Officer gives jurisdiction to a
competent Magistrate. -
(1) Every investigation into the offence under this Act shall
be completed without necessary delay.
(2) As soon as investigation into the offences under this Act is
completed, the Abkari Officer shall forward a Magistrate,
empowered to take cognizance of the offence on a police report,
a report in accordance with sub section (2) of section 173 of Code
of Criminal Procedure, 1973."
15. On going through Section 173(1) of the Code of Criminal
Procedure and Section 50(1) of the Abkari Act, it is crystal clear that, an
investigation in an offence be completed without unnecessary delay. In the
instant case, the questioning of the material witnesses as a part of
investigation was started after a gap of four years, which casts serious
doubts in the prosecution story.
16. In Jinto v. State of Kerala [2023 KLT Online
2004], it is held that, when there is unexplained delay in completing
investigation, same is fatal to the prosecution. The relevant paragraphs are
extracted below:
"20. In the case on hand, though the detection was
on 17.06.2006, the witnesses were questioned by the
investigating officer in the year 2009 i.e., after 3 years of
detection, and prosecution has not offered any explanation
for that delay. The final report also was laid against the
revision petitioner after three years of the incident.
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21. No explanation has been given by the
prosecution as to why there was delay in completing the
investigation and filing the final report. Where there is
unexplained delay in completing investigation and filing the
final report, the same is fatal to the prosecution, [Reliance
placed on Krishnan H. v. State of Kerala (2015 (2) KLT
SN 8 (C.No. 11) = 2015 (1) KHC 822); Chandran v.
State (2016 (4) KLT 727 = 2016 (5) KHC 650)."
17. In the decision in Moothedath Sivadasan &
Another v. State of Kerala [2021 KLT 744], it is held as under:
"The occurrence in this case was on 15.06.2000
and the final report was filed on 18.07.2002. There was
inordinate delay in filing the final report before the court.
As per S. 50 of the Act, every investigation into the offences
under the Act shall be completed without unnecessary
delay. As soon as investigation into the offences under the
Act is completed, the Abkari Officer is obliged to forward a
report in accordance with sub-s. (2) of S. 173 of the Cr. P.C.
to a Magistrate empowered to take cognisance of the
offence on a police report. In this case, the inordinate delay
in filing the final report before the court has not been
explained by the prosecution. Further, the then S.I. of
Police, Iritty who filed the final report before the court, was
not examined as a witness for the prosecution."
18. This Court in the decision in Gangadharan v. State
of Kerala [2024(1) KHC 111] observed that unexplained delay in
completing the investigation and filing final report is fatal to the
prosecution. The relevant paragraphs are extracted hereunder:
"34. Though the occurrence was on 10.09.2005,
the investigation was completed and charge sheet was laid
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only on 28.09.2007, with a delay of two years. S.50 of the
Abkari Act says that, every investigation into the offences
under the Act shall be completed without unnecessary delay.
No explanation whatsoever has been offered by the
prosecution, for the delay of two years in completing the
investigation, and filing the final report. The unexplained
delay in completing the investigation, and filing the final
report is no doubt fatal to the prosecution. [See
Moothedath Sivadasan v. State of Kerala 2021 (1)
KLT 744, Kumaran P. v. State of Kerala and another
2016 (4) KLT 718]."
19. In the instant case also, no explanation, whatsoever is
offered by the prosecution to explain the inordinate delay in filing the
charge sheet. It is further submitted that, PW2 - an independent witness
turned hostile to the prosecution. According to the learned counsel for the
revision petitioner, considering all the illegalities, infirmities and
irregularities stated above would casts serious doubts in the prosecution
story. The prosecution has failed to allege and prove the charge against the
revision petitioner/accused beyond reasonable doubt. It is trite law that the
penal provisions are to be interpreted within the four corners of the statute.
20. On going through the records of the case and upon
hearing the rival submissions of the counsel for the parties, I am of the view
that the trial court and appellate court had overlooked vital illegalities,
infirmities or irregularities, which cuts the very root of the prosecution
case.
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In the result,
(i) Criminal revision petition is allowed.
(ii) The impugned order is set aside.
(iii) The revision petitioner/accused is acquitted and he is
set at liberty.
(iv) The bail bond, if any, executed by the revision
petitioner stands cancelled.
(v) Fine, if any, paid by him shall be refunded.
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/
