Dismissed

K.C.Shaji v. State

Kerala HC10 Jul 2009Crl.Rev.Pet/947/2007

Case brief

AI extract

What is this about?

This revision petition challenged the Sessions Judge's order setting aside an acquittal and remitting the case for a trial on cheating and hunting charges. The court held the revisionary interference was justified as the acquittal was unmerited based on evidence and the sessions judge did not overstep supervisory jurisdiction.

What did the court decide?

Brief to be admitted for orders dated 19th Ashadha 1931.

K.C.Shaji Vs State — Environment and Pollution | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 CRL.REV.PET.NO. 947 OF 2007() -------------------------------------------CC.74/2004 OF JUDL. MAGISTRATE OF FIRST CLASS-II, SULTHANBATHERY CRRP.14/2006 OF SESSIONS COURT, KALPETTA ....................

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REVN. PETITIONER(S): RESPONDENTS/ACCUSED 1 TO 3 -----------------------------------------------------------------------------

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1. K.C.SHAJI, S/O.K.J.CHACKO, KULATHINGAL HOUSE, MULLANKOLLY, KIZHAKKE IDINJARAPPALLIYIL POST, PULPALLY.

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2. TOMY JOSEPH, S/O.JOSE, MULLANKOLLY POST, ADHIKARATHIL HOUSE, PULPALLY.

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3. S.JYOTHI PRAKASH, S/O.K.R.RAJU, KALLADIKOLLY (H), PALAKOLLY POST, PULPALLY.

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BY ADV. SRI.S.SREEKUMAR SRI.P.K.SOYUZ

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RESPONDENT(S) -RESPONDENT:

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-------------------------------------------

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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Forest Range Officer, Chedalath Range submitted a final report in the court of learned Judicial First Class Magistrate-II, Sulthan Bathery alleging that petitioners committed offence punishable under Section 27(1)(e)(iii) and (iv) of the Kerala Forest Act (for short, “the Act”).

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According to the Range Officer, petitioners shot down a spotted deer which is a schedule animal as per the Act and carried its meat. Range Officer and party while on patrol duty along Pathiri north area allegedly found petitioners traveling in a car. Petitioner No.1 was driving the car and petitioner Nos.2 and 3 were sitting on the back seat allegedly carrying a double barrel gun. It is the further case that in the dicky of that car blood smeared meat and head portion of the spotted deer with blood smeared chopper were found. Petitioners were arrested at the spot and those materials were taken into custody. It is the case of Range Officer that as led by petitioner No.3 he reached the place of occurrence and found meat particles of the spotted deer. It is accordingly that final report was submitted against petitioners. They faced trial in the court of learned magistrate in C.C.

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CRL. R.P. No.947 of 2007

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-: 2 :-

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No.74 of 2004. Prosecution examined P.Ws.1 to 5 and marked Exts.P1 to P11 and M.Os. 1 to 4. Learned magistrate as per judgment dated 20.10.2005 acquitted petitioners under Section 248(1) of the Code of Criminal Procedure (for short, “the Code”). Learned Sessions Judge, Wayand while perusing the calender statement and judgment thought that acquittal is not legal and proper and initiated suo moto revision and gave notice to the petitioners. After hearing petitioners and Public Prosecutor and perusing records learned Sessions Judge held that acquittal is unmerited in view of the evidence on record and by judgment dated 30.1.2007 set aside the acquittal and remitted the case to the learned magistrate for fresh disposal. The order of learned Sessions Judge is called in question in this revision.

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Learned counsel for petitioners contended that suo moto revisional power of the learned Judge can be exercised only in respect of finding which is illegal, irregular or perverse and that the mere fact that a different view is also possible is no reason to substitute the finding of the trial court. Learned counsel placed reliance on the

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decision of the Supreme Court in Johar v. Mangal Prasad (2008) 3 SCC 423). Learned Public Prosecutor would submit that on the factual situation order of learned Sessions Judge is justified and no

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CRL. R.P. No.947 of 2007

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-: 3 :-

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interference is required.

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Revisional power is conferred on the Sessions Court as well as the High Court under Sec.397 of the Code as a court supervising the proceedings of the subordinate criminal court. Revisional power is part of the supervisory power. This is clear from Sec.483 of the Code as well. As the superior court, it is within the power of that court to consider whether judgment/order or proceeding of the subordinate criminal court is legal, regular and proper. When it comes to the matter of interfering with the judgment/order of acquittal is concerned, authorities on the point are consistent that revisional power can be exercised only when judgment/order of the subordinate criminal court is illegal, irregular or improper and when it has resulted in miscarriage of justice. Unlike in the case of appeal from an acquittal question of re-appreciation of evidence is not warranted while exercising the power of revision. These principles must apply in the case of exercise of power of suo moto revision as well. Question is whether in this case learned Sessions Judge was justified in interfering with the order of acquittal and remitting the case to the trial court for fresh disposal. One reason that persuaded learned magistrate to order acquittal of petitioners is that though according to prosecution the spotted deer

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CRL. R.P. No.947 of 2007

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-: 4 :-

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was allegedly shot dead by petitioners there was no evidence that it was by gun shot that the spotted deer was killed. Learned Sessions Judge referred to the evidence on record and observed that even if it is assumed so, that is not a ground to acquit petitioners in the light of the evidence on record.

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Since this court is now called upon to exercise the power of revision under Sec.401 of the Code against the order of learned Sessions Judge in revision it is not necessary for this Court to go into the evidence let in by the prosecution. What is required to be considered is only whether learned Sessions Judge has over stepped the revisional jurisdiction under Sec.397 of the Code. I have gone through the records and orders of the courts below and I am satisfied that learned Sessions Judge was well within the power while exercising the power of suo moto revision in interfering with the judgment of learned magistrate acquitting petitioners. I also bear in mind that learned Sessions Judge has not reversed the finding entered by learned magistrate but only directed fresh consideration of the evidence in the correct perspective. I am unable to say that the order of learned Sessions Judge is illegal, irregular or improper requiring interference by this Court.

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CRL. R.P. No.947 of 2007

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-: 5 :-

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Learned counsel submitted that learned Sessions Judge has referred to the entire evidence on record and almost entered a finding which might prejudice the trial court. Learned counsel brought my attention paragraph 29 of the decision in Johar's case referred supra.

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I make it clear that the observations and findings entered by learned Sessions Judge on the merits of the case will be strictly confined and limited for the purpose of disposal of the suo moto revision and shall not in any way influence the mind of trial court which has to consider the evidence on record afresh. Learned magistrate shall independently and untrammeled by any of the finding or observation contained in the judgment of the learned Sessions Judge consider the contentions raised by the parties, assess the evidence and reach appropriate finding. I have refrained from referring to the evidence on record for the reason that any observation contained in this order shall not in any way influence the mind of the trial court one way or the other.

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Having heard counsel for petitioners and Public Prosecutor I find no illegality, irregularity or impropriety requiring interference with the order of learned Sessions Judge.

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CRL. R.P. No.947 of 2007

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-: 6 :-

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Revision is without merit and liable to be dismissed.

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Revision Petition is dismissed.

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Criminal Miscellaneous Application No.2709 of 2007 shall stand

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dismissed.

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THOMAS P.JOSEPH, JUDGE.

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vsv

K.C.Shaji v. State

Case brief

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K.C.Shaji v. State

Case brief

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