The High Court held that petitioners accused only of sand removal violations cannot be tried jointly with main accused charged with murder attempt, as their acts do not form part of the same transaction. Court directed trial court to account for prejudice.
Directed Session Judge to hear petitioners and state and pass appropriate orders regarding the joint trial.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938
Crl.MC.No. 2039 of 2016 ()
CP.NO. 81/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KANNUR CRIME NO. 63/2014 OF IRIKKUR POLICE STATION , KANNUR DISTRICT SC.NO.43/2016 OF ADDITIONAL DISTRICT & SESSIONS COURT, THALASSERY
PETITIONER(S)/ACCUSED NOS. 3, 4 & 5:
1. SAJID K.R., AGED 30 YEARS, S/O.MAYAN, KUNNUMPURATH HOUSE, RAHATH MANZIL, IRIKKUR P.O, VAYAKKAMKODU, PAISAYI.
2. A.T.ANAS SHADULI, ITTANDI PUTHIYAPURAYIL, IRIKKUR P.O, KANNUR DT.
3. GAFOOR A.P., AGED 30 YEARS, S/O.MOIDEEN,
ITTANDI PUTHIYAPURAYIL, IRIKKUR P.O, PEDAYAMKODU, KANNUR DT.
BY ADV. SRI.C.K.SREEJITH
RESPONDENT(S)/STATE & COMPLAINANT:
1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
2. STATION HOUSE OFFICER, IRIKKUR POLICE STATION, KANNUR DIST, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
Crl.MC.No. 2039 of 2016 ()
APPENDIX
PETITIONER(S)' ANNEXURES:
ANNEXURE A1 : THE TRUE COPY OF THE FIR IN CRIME NO.63/2014 ON THE FILE OF IRIKKUR POLICE STATION. ANNEXURE A2 : THE TRUE COPY OF THE STATEMENT GIVEN BY THE DEPUTY SUPERINTENDENT OF POLICE, P. SUKUMARAN. ANNEXURE A3 : THE TRUE COPY OF THE STATEMENT GIVEN BY THE MR.JENSON CPO 6360 AR CAMP, KANNUR. ANNEXURE A4 : THE TRUE COPY OF THE CHARGE. ANNEXURE A5 : THE TRUE COPY OF THE SUMMONS ISSUED IN CP NO.81/2014 ON THE FILE OF JFCM NO.II, KANNUR. ANNEXURE A6 : THE TRUE COPY OF THE SUMMONS ISSUED TO THE 3RD PETITIONER/5TH ACCUSED. RESPONDENT(S)' ANNEXURES: NIL
/TRUE COPY/
P.A.TO JUDGE
sts
RAJA VIJAYARAGHAVAN.V., J
Crl.M.C. No. 2039 of 2016
ORDER
1.The petitioners herein are arrayed as accused Nos. 3, 4 and 5 in crime No.63 of 2014 of Irikkur Police Station.
They along with accused Nos. 1 and 2 in the aforesaid crime are charged for having committed offences punishable under Sections 332, 307, 427 read with Sections 132 and 179 of the IPC and Sections 184, 227 (i) (m) read with Section 177 of the MV Act and also under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001.
2.A tipper lorry which was not sporting a registration plate was intercepted by the Deputy Superintendent of Police and his subordinate officers on 7.2.2014. The said vehicle was driven off by the driver who is the 1st accused in the aforesaid case. The police personnel gave hot chase and managed to over take the lorry. The prosecution
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allegation is that with intent to murder and to deter the public servants from discharging their official duty the lorry was rammed on the car in which the police officials were travelling. Thereafter, the 1st accused is alleged to have taken to his heels. Prosecution further alleges that it was the 2nd accused who had given necessary instructions to the 1st accused to act as aforesaid. The allegation against the petitioners is that, much prior to the above incident, i.e., on 7.2.2014 at 9 p.m., they along with accused Nos. 1 and 2 had loaded river sand into the tipper lorry.
3.The learned counsel appearing for the petitioner submitted that the incident involving the 1st and 2nd accused is a distinct and separate transaction and it has no connection whatsoever with the loading of river sand into the tipper lorry by the petitioners. It is pointed out that the offence attracted against the petitioners is only one under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2006, and even if
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that they had any role to play in the above incident.
9.Section 223 of the Code refers to the joinder of different accused at a single trial. The Section lays down as to the persons who may be charged and tried together and is in seven clauses. The general rule as contained in section 223 of the code is that every distinct offence shall be the subject matter of a separate charge, to be tried separately. The rule of joinder of charge, as contained in sections 219, 220, 221 (1) and 222 (1) of the code, are exceptions to the general rule.
10.Though Section 223 has seven clauses, each clause is unconnected with, and independent of, the other clause. What is laid down by the section is that persons accused of the same offence committed in the course of the same transaction can be tried together (clause (a) ); persons
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accused of an offence and those accused of its abetment to commit such offence can be tried together(clause (b) ); persons accused of more than one offence of the same kind committed by them jointly within 12 months can be tried together( clause (c)) ; persons accused of different offences committed in the course of the same transaction (clause (d)); persons accused of theft, cheating, extortion, misappropriation, etc and receivers of stolen property (clause (e)); joint trial of receivers of stolen property through one theft ( Clause (f); persons accused of Counterfeiting of coins ( clause (g)) .
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another in some way; it is because of the connection that they are allowed to be tried together.
course of same transaction” in State of Kerala v. Wolf Hang Kannad Finert [1995(1) KLT 72]. It was held in
paragraph 5 as follows:
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purpose so as to constitute a continuous action. In other words, continuity in action is an important test in the matter. Different persons accused of having committed offences of the same kind cannot be regarded as having committed those offences in the course of the same transaction unless there is an intimate connection between the different acts.”
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and the State and to pass appropriate orders taking note of the observations made above. The committal orders of the 2nd petitioner in C.P.No.81 of 2014 on the file of the Judicial Magistrate of First Class-II, Kannur, shall be subject to the orders to be passed by the learned Session Judge.
This petition is disposed of with the above
observations.
Sd/-
RAJA VIJAYARAGHAVAN.V., JUDGE
kp/-20.7.16
2 issues framed by the court
Whether petitioners charged only under the Kerala Protection of River Banks Act can be tried along with other accused charged under IPC Section 307 in a joint trial.
Whether the act of loading sand and the incident of ramming a police car constitute the same transaction within the meaning of Section 223 of CrPC.
Colour shows how this judgement treated each authority
Wolf Hang Kannad FinertReferred¶60
State of Kerala v. Wolf Hang Kannad Finert [1995(1) KLT 72]
4 provisions across 3 enactments
SAJID K.R., A.T.ANAS SHADULI, GAFOOR A.P.
STATE OF KERALA
RAJA VIJAYARAGHAVAN.V.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
