Dismissed

Rajeev v. State of Kerala

Kerala HC2 Dec 2021Crl.MC/352/2017

Case brief

AI extract

What is this about?

Petitioners, accused absconding in a 2005 rioting and murder case, sought quashing of proceedings on the ground that co-accused had been acquitted and the FIR held illegally registered. The court held the acquittal rested on appreciation of evidence in another trial, found the petitioners fugitives who had not approached with clean hands, and dismissed the petition.

What the court decided

AI extract

Rajeev Vs State of Kerala — Quashing and FIR | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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THURSDAY, THE 2ND DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943

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CRL.MC NO. 352 OF 2017

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CRIME NO.39/2005 OF Vallikunnam Police Station, Alappuzha
PETITIONERS/ACCUSED NOS.3,8 & 9:

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1RAJEEV
AGED 36 YEARS
S/O.SANKARA PILLAI, MARANGATTU VEEDU,
VALLIKUNNAM THEKKUM MURI, VALLIKUNNAM VILLAGE,
ALAPPUZHA

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2KIRAN
AGED 38 YEARS
S/O.RAVEENDRAN, THOTTUKARA VEEDU,
MANAPPALLY VADAKKUM MURI, PAVUMPA VILLAGE,
KARUNAGAPALLY, KOLLAM

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3 ANANADA KRISHNAN @ RAJU S/O.SANKARA PILLAI, AGED 36 YEARS, MARANGATTU VEEDU, VALLIKUNNAM THEKKUM MURI, VALLIKUNNAM VILLAGE, ALAPPUZHA

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BY ADVS.

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SRI.ARJUN SREEDHAR
SRI.ARUN KRISHNA DHAN
SRI.T.K.SANDEEP

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RESPONDENTS/RESPONDENTS:

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STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-31

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
16.11.2021, THE COURT ON 02.12.2021 PASSED THE FOLLOWING:

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ORDER

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The petitioners are accused Nos.3, 8 and 9 in Crime No.39/2005 of Vallikkunnam Police Station, which was registered against 17 accused persons for the offences punishable under Sections 143, 147, 148, 447, 427, 326, 302 read with Sections 149 IPC, 153 (A)(1)(a)&(b) 120B of IPC. The prayer sought for by the petitioners is to quash all proceedings in the said crime, as all the other accused persons were acquitted as per the judgment passed by the Additional Sessions Court II, Mavelikkara in SC 594/2005 and also as per the judgment in Crl.A.No.1561/2009 by this Court.

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The prosecution case is as follows: On 23.02.2015 at 9 p.m., one Ashraf and two other persons were coming out of Kaduvinal Mosque within the local limits of Vallikkunnam Police Station. At that time, in pursuance of a conspiracy between the accused persons, they formed themselves into an unlawful assembly, armed with deadly weapons like swords, sticks, iron roads and bamboo sticks, came in a motorcycle and a jeep driven by A 16 and A17 respectively, to the said Mosque. After reaching the Mosque, A1 to A5 and A8 to A10 jumped out of the jeep and criminally trespassed into eastern courtyard in front

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of the Mosque with the said deadly weapons and assaulted the said Ashraf. The 1^st accused inflicted a cut injury with a sword and accused Nos.4,5,8,9 and 10 indiscriminately beat him with iron rods all over his body.

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On seeing the attack, two persons, who were along with the said Ashraf ran away from the spot and thereafter the accused Nos.3 to 10 destroyed tube lights installed in front of the Mosque. Thereafter the accused persons proceeded towards south through the road in front of the Mosque by the said jeep as well as motor bike and stopped the vehicle on seeing CW2 who was standing on the road in front of his house. A2 and A3 jumped out of the jeep and assaulted him as well by uttering the word ‘cut and kill him’. It was alleged that the 2^nd accused inflicted a cut with a sword aiming towards the neck of the said person, which was warded off by him with his left hand and thereby he sustained fracture of bonds of his left wrist. He was also attacked by bamboo sticks. The said Ashraf later succumbed to the injuries while undergoing treatment and CW2 sustained injuries. The offences as mentioned above were registered on the basis of the said allegations. The first information was furnished by PW15, who appeared before the Police at 6 a.m. on

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24.02.2005.

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During trial, A1 and A6 died. The case against remaining accused persons were committed to the Sessions Court. The petitioners herein i.e A3, A8 and A9, have absconded after the committal proceedings and therefore case against them was spit up. The case against the other accused persons was numbered as S.C.No.594/2005 and tried by Additional Sessions Court II, Mavelikkara. The cases against 1^st petitioner (A3) was refiled as SC No 550/2015, as against 2^nd petitioner (A8), it was numbered as SC No 854/2010 and as against the 3^rd petitioner( A9) the case was refiled as SC No 490/2012. After a full fledged trial the Sessions Court found A2, A4, A5, A10 and A17 guilty of the offences and they were convicted in S.C.No.550/2015. The other accused persons namely, A7, A11, A12, A13, A14, A15 and A16 in the said Sessions Case were acquitted. The convicted accused persons filed Crl.A.1561/2009 before this court and as per Annexure II judgment passed by this Court, all the appellants therein were acquitted.

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The prayer sought for by the petitioners in this case is that in the light of the judgment rendered by this Court in Annexure II and also in view of the nature of findings in the said judgment, the substratum of

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the case is lost and hence the proceedings against the petitioners are to be quashed by invoking powers of this Court under Section 482 Cr.P.C.

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Heard Sri.Sandeep T.K., learned counsel for the petitioners

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and Sri.Sudheer Goapalakrishnan, learned Public Prosecutor for the respondents.

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Learned counsel for the petitioner would contend that in Annexure II judgment, a categorical finding has been entered into by this Court to the effect that the registration of FIR itself was wrong and therefore, the entire proceedings are vitiated. By relying upon the aforesaid judgment, it is contended that it is a case where the substratum of the case is lost and hence no fruitful purpose would be served by conducting trial against the petitioners herein. Chances of a successful prosecution in a further trial are very bleak consequent to the categorical finding already entered into by this Court in Annexure II. The learned counsel relies on judgments in Moosa v. Sub Inspector of Police [(2006

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(1) KLT 552], Abbas T.K. v. State of Kerala [2013(2) KLT 976], unreported judgments dated 11.04.2013 in Crl.M.C.1561/2013 and judgment dated 15.11.2018 in Crl.M.C. 5318 of 2018, passed by this court.

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On the other hand, learned Public Prosecutor contends that,

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no case is made out by the petitioners to invoke the inherent powers of this Court under Section 482 Cr.P.C. The findings entered into by this Court in Annexure II judgment cannot be applied in this case, for quashing the proceedings against the petitioners herein. The learned Public Prosecutor points out that the principles laid down by the Full Bench of this Court in Moosa’s case (cited supra) is in fact against the proposition argued by learned counsel for the petitioners. In such circumstances, the learned Public Prosecutor seeks for dismissal of the Crl.M.C.

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The crucial question that emerges is as to whether the finding entered into by this Court in Annexure II judgment and the order of acquittal passed therein with regard to the other accused persons who faced the trial in the very same crime, can be treated as a valid ground for quashing the proceedings against the petitioners herein. The learned counsel for the petitioners relies on the paragraph 50 of Moosa’s case (cited supra) which reads as follows:

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“50. From the above discussion, it can thus be seen that a judgment to be relevant within the meaning of Sections 40 to 43 of the Evidence Act so as to bar a trial under Section 403 Cr.P.C. should be a judgment inter parties. So however, it does not mean

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that the judgment is not admissible if it is admissible under any other provisions of the Evidence Act. Thus, in order to prove as to who were the accused in the previous trial or ought to prove the factum of acquittal in those cases it will still be admissible under Section 30 or 35 of the Evidence Act. At the same time, the judgment rendered in the case of a co-accused and the reasoning of the judgment contained therein or appreciation of the evidence therein are not matters to be taken into account for the purpose of granting any relief to quash the proceedings and thus bar the trial itself. It may however, be a case where the very substratum of the case is lost which may be an exception to this rule. However, as held by the apex court it has to be held that even when a co-accused is acquitted in the very same trial, the other accused can be convicted if there are good reasons to do so. In other words, the acquittal of some of the accused by itself is not a reason to bar the trial in the case of the other accused.”

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The learned counsel for the petitioner strongly relies upon the observation made by this Court in aforesaid para to the effect that “it may however, be a case where the very substratum of the case is lost which may be an exception to this rule” . According to him the substratum of the case is lost consequent to the finding entered into by this Court in Annexure II. The learned counsel brought my attention to the observations made in paragraph 60 of Annexure II judgment.

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“60. Now, the nature and validity of the first statement recorded from PW1 and Ext.P14, based on which, Ext.P14 (a) FIR was registered, have to be considered. We are of the considered view that Ext.P14 does not contemplate and assume the status of a First Information Statement at all. As stated earlier, all the Police Officers including the Station House Officer, Vallikunnam Police Station, and PW41, the investigating officer, had direct knowledge regarding the incident that had taken place there. When the incident had

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allegedly occurred which resulted in causing extensive damage to the Mosque, which is considered by the members of the Muslim Community as the abode of God, the inaction on the part of the said Police Officers in not registering a crime speaks volumes against the prosecution case. When they had direct knowledge of the commission of various cognizable offences, they ought have registered a crime then and there and started investigation. Instead of it, they sent a man behind PW1, who chased PW1 to Government Hospital, Kayamkulam, and then to Upasana Hospital, Kollam. Ultimately, he could catch PW1 to extract a statement from him. Even to that statement, it seems that the Station House Officer and the investigating officer had given a go by. Even though the said statement was recorded at 4 a.m. on 24.2.2005, they have chosen to obtain the presence of PW15 at 6 a.m., recorded Ext.P14 statement, treated it unlawfully as the First Information Statement, and recorded Ext.P14(a) on its basis, thereby registering the crime. At any stretch of imagination, Ext.P14, in our considered view, cannot assume the status of a First Information Statement and therefore, gross illegality and irregularity have crept in the registration of the crime itself. It seems that the whole investigation, therefore, preceded by gross illegality crept in the registration of the crime. Hence, the prosecution itself is unable to place reliance on Ext.P14(a) as a validly and lawfully registered FIR. When there is gross illegality in the registration of the crime as such, the investigation continued thereafter has no legs to stand.”

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The observations and findings in the aforesaid paragraph of Annexure II judgment are to the effect that, the registration of FIR as evidenced by Ext.P14 (a) on the basis of Ext.P14 First Information Statement was an illegality and the investigation followed has no legs to stand. It was pointed out that as this Court has found that the initiation of the proceeding itself was wrong, the chances of successful

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prosecution even against the petitioners herein are very bleak and a further trial as against them would not serve any purpose. The aforesaid argument appears to be attractive at first blush. However, when we consider the findings entered by this Court in Annexure II, by going deeper into the facts and circumstances under which the said observations were made, it can be seen that there are certain other glaring aspects as well. The aforesaid materials have to be considered along with the other observations made by this Court in Moosa’s case (supra). It is true that paragraph 50 in Moosa’s case (supra) as extracted above, contemplates an exceptional circumstance for invoking the powers under section 482 Cr.P.C, when the substratum of the case is lost. However when the judgment as a whole is considered, I have a very serious doubt as to whether the exception as contemplated in the said judgment would apply to facts of this case. For considering the said issue, it is appropriate to examine the observations of this Court in paragraph 52 of the judgment passed in Moosa’s case (supra).

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“52. To quash the proceeding after referring to the overt act of the petitioner with reference to the evidence tendered in the judgment rendered in a case of a co-accused who faced the trial and based on evidence therein case of the accused cannot be done as the judgment in the earlier case is not judgment relevant within the meaning of Sections 40 to 44 of the Evidence Act. To do so will be in the realm of appreciation of the evidence which has to be done by the trial

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judge. In the above view, with great respect we cannot agree with the proposition of law thus, stated in Arun Kumar's case. The acquittal of some of the co-accused based on appreciation of evidence in their case is no ground to bar a criminal trial as the appreciation by the concerned judge in a criminal trial is not binding when the latter case is tried in the case of the other coaccused and it is for the learned trial Judge to appreciate the evidence adduced in the latter case. In that regard, possibly a particular witness may or may not be believed and his reliability may also be tested in the light of what he has stated in the earlier case etc. But those are all matters for the trial Judge to do. All that we want to say is that it will not preclude the trial of the case for the mere reason that the co-accused were acquitted. This is the principle that is stated by the Apex Court in Megh Singh v. State of Punjab 2004 SCC Crl. 58, Gorle Section Naidu v. State of AP. AIR 2004 SC 1169 etc. Further, as held by the apex court in Raju Rai's case 2006 (1) KLT (SC) (SN) 8 : 2005(7) Supreme 459 the judgment in the case of the co-accused is not at all a judgment relevant within the meaning of Sections 40 to 44 of the Evidence Act. The Rule of estoppel as held by the Apex Court is a rule of admissibility of evidence and which does not bar the trial as such. Hence it has to be held that the power under Section 482 Cr.P.C. cannot be invoked to prevent the trial of the petitioners/accused solely by referring to the overt act played by the accused as spoken to by the witnesses in the case of the co-accused and this Court cannot in exercise of its jurisdiction under Section 482 Cr.P.C. quash the proceedings and prevent the trial. Hence the dictum laid down in Arun Kumar's case to the extent it has taken a contrary view of what is stated above, is not a correct law and the same is overruled.”

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As per the principles laid down therein, the acquittal of some of the coaccused based on appreciation of evidence in their case is not a ground to bar a criminal trial as the appreciation of evidence by the concerned Judge in a criminal trial is not binding when the later case is tried in the case of the other co-accused. It is evident from the observations made by this Court in the Moosa’s judgment that, it is for the trial court

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concerned to appreciate the evidence which was adduced during the trial and evaluate the same before taking a decision. The appreciation of the evidence made in previous trial as against the other accused persons is not a decisive factor for deciding the questions before the trial court.

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Now coming back to the question whether substratum of the case is lost. In connection with the said issue, what is relevant is the observations made by this Court in paragraph 60 of Annexure II which is already extracted. A careful scrutiny of the Annexure II judgment as a whole would reveal that there are several circumstances and grounds which ultimately led this Court to arrive at the finding as extracted in paragraph 60. The basic reason behind the above conclusion is that even though the Police became aware of the incident and commission of the acts revealed a cognizable offence, they did not immediately register an FIR and instead, the Police Officer concerned who was examined as PW41 in Annexure II deputed another Police Officer to get the statement of the injured victim (hereinafter mentioned as PW1). Even though a statement of the said witness was recorded by the said Policeman while he was undergoing treatment at 4 a.m. on 24.03.2005, the FIR was registered on the basis of FI statement given by the son of PW1

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(hereinafter referred as PW15) which was recorded at 6 a.m. on the same day. It was held by this Court that as the Police did not register the FIR immediately upon getting the information, the registration of FIR on the basis of First Information Statement given by PW15 was not proper.

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A careful reading of the judgment would reveal that there are several aspects which ultimately led this Court to arrive at the said finding and ultimately acquitted the accused. One of the reasons which prompted this Court to arrive at the said finding are mentioned at paragraph 36 to 47, which reads as follows:

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“36. The learned Senior Counsel and the learned counsel for the other appellants pointed out that the prosecution has no case that, apart from A2 and A3, any other persons had alighted from the jeep or from the motor bike in order to stage an attack on PW1. At the same time, the versions of PW1 are clearly contradictory to the prosecution case. His earliest version to PW29 is that he was attacked inside the Mosque. His second version is that some persons unexpectedly trespassed into his courtyard and attacked him. The expression 'some persons' clearly means that it should be more than two; otherwise, he could have clearly stated that only two persons had trespassed into the courtyard. He has a version in his evidence that the blood spurting from his injury, fell on his clothes as well as the ground. At the same time, Ext.P16 scene mahazar does not show any such signs of blood at the scene of occurrence. Either the prosecution or PW15 has no case that anybody had trespassed into the courtyard of PW1, or attacked PW1 at his courtyard.

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37. It is in the cross examination of PW1, for the first time it was brought out in evidence regarding a statement recorded from PW1 by the police. According to him, it was

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by about 4 - 4.30 a.m., that the police came and his statement was recorded. His version is that his statement was recorded and his signature was obtained in the said statement. He has admitted that he had never pointed out the persons who attacked him to the police and he had never identified them before the police. It has to be noted that PW1 was not summoned for the T.I. parades. In cross examination, he has clearly admitted that his statement was recorded at 4 a.m. and that statement was read over to him.

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38. Now, the versions of PW41 regarding the said statement of PW1 alleged to have been recorded has to be appreciated. In cross examination, PW41 was asked as to whether the statement of PW1 was recorded at the Hospital and a FIR was registered on the basis of it. PW41 answered that, during night on the date of incident itself, on receiving the information regarding the incident from the Dy.S.P., Chengannur, he deputed the Head Constable of Vallikunnam Police Station for recording the statement of PW1. The said Head Constable when reached the Government Hospital, Kayamkulam, PW1 had been taken to Upasana Hospital, Kollam and, therefore, the Head Constable reached Upasana Hospital, Kollam, and recorded the statement of PW1. By the time the said Head Constable had returned to the Vallikunnam Police Station with the statement of PW1, FIR had already been registered on the basis of the statement furnished by PW15 at 6 a.m. It has been argued on behalf of the appellants, that the prosecution has deliberately suppressed the said statement recorded from PW1.

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39. The argument advanced on behalf of the appellants on this aspect is twofold. Firstly, it is argued that the prosecution wanted to suppress the true genesis of the incident, as the versions of PW1 in his first statement were totally contradictory to the versions of PW15 in Ext.P14, as well as the prosecution case as a whole. Secondly, it is argued that the registration of Ext.P14(a) FIR on the basis of Ext.P14 itself is illegal, in the light of the first statement furnished by PW1, on the basis of which PW34 ought to have registered a FIR.

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40. We were in search of such a statement among the prosecution records. The police had not cared to produce

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the said statement before the court below. Such a statement is not available among the records also. At the same time, it seems that the court below had the 'fortunate occasion' to peruse the so called copy of such a statement. The impugned judgment does not show that the court below had verified the authenticity of such a copy. From paragraph 15 of the impugned judgment, we can have a glimpse of the contents of the so called copy of such a statement. The narration in paragraph 15 of the impugned judgment regarding that aspect is as follows:

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“In that signed statement it is stated that at 8 p.m. yesterday (as stated by me earlier, the statement is seen recorded on 23.02.2005 at 4 a.m. and it is further stated that he sustained injuries on the previous night (22.02.2005) at 9 p.m. at the road on the northern side of his house. The date shown as 22.02.2005 is not correct because nobody has got a case that any occurrence took place on 22.02.2005 and in that occurrence PW1 sustained injuries) he was engaged in unloading cut stones and while so he heard the sound of speech and commotion stating 'cut him, kill him' and therefore he reached in the road on the eastern side and at that time two persons reached near him by running from north and one of them uttered 'cut him' and then one of them cut him with a sword stick, but he warded off that cut with his hand resulting injury on his left wrist and the other person beat him with an iron rod on his right rib. It is further stated that at that time Ashraf who reached on the eastern courtyard of the Mosque after prayer was cut and the entire windows of the Mosque were destroyed and there after the persons who beat him and persons who cut Ashraf went away by driving the jeep in which they came.”

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41. We are, in fact, impressed by the argument that the versions of PW1 regarding the incident as noted above, are quite contradictory to the versions of PW15 regarding the incident, as well as the prosecution case as a whole. From the versions in the said statement of PW1, it seems that the two incidents, i.e, one incident in which PW1 sustained injury and the other incident in which fatal injuries were inflicted on the deceased, and the window panes of

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the Mosque were damaged, had occurred simultaneously. It seems that PW1 had furnished such a statement, as if he had witnessed both these incidents. His versions therein is that he was cut with a sword-stick, but he warded it off, and thereby he sustained an injury and that another person beat him with an iron rod. The said versions are also contradictory to the prosecution case. The prosecution case is that PW1 was beaten with MO2 bamboo stick, whereas his version in his first statement furnished before police is that he was beaten with an iron rod by another man. His further versions are that “at that time, Ashraf who reached on the eastern courtyard of the Mosque after prayer was cut and the entire windows of the Mosque were destroyed and thereafter PW1 and other persons who cut Ashraf went away, by driving the jeep in which they came”.

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42. Therefore, the said clear versions made by PW1 in his first statement allegedly recorded at 4 a.m. on 24.2.2005 by the Head Constable of Vallikunnam Police Station clearly reveal that PW1 had occasion to see the incident which had occurred on the eastern courtyard of the Mosque. Further, his versions reveal that two sets of persons were involved in those incidents. His versions would go to show that he was attacked by one set of persons and at that time itself Ashraf, who came to the eastern courtyard of the Mosque after prayer was attacked by the other group of persons. On going through the evidence of PW15 and the contents of Ext.P14, the case is that, at first the attack was staged at the eastern courtyard of the Mosque in which fatal injuries were inflicted on the deceased and all the window panes of the Mosque were smashed and damaged. Thereafter, those assailants proceeded towards south by the jeep, which followed the motorbike, and both the vehicles stopped at the road in front of the house of PW1, where PW1 was standing and then he was attacked. We find considerable force in the argument forwarded on behalf of the appellants that the prosecution has deliberately suppressed the said statement furnished by PW1, as the contents of the same militate against the versions of PW15, the contents of Ext.P14, and the prosecution case as a whole.

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43. On this aspect, the learned Public Prosecutor has pointed out that at the most the said statement of PW1 can only be considered as a statement under Section 161 Cr.P.C.

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recorded by the police. We are not impressed by the said argument as the prosecution has no case that any investigation had commenced till 4 a.m., the time at which the said statement of PW1 was recorded. A statement under Section 161 Cr.P.C. can be recorded only during the investigation and not at any stage prior to the investigation. Even after the investigation, if any materials are there, of course, such statements under Section 161 Cr.P.C. can be recorded, and the same can be produced before court, along with a report under Section 173(8) Cr.P.C. Admittedly, Ext.P14(a) First Information Report was registered at 6 a.m. on 24.2.2005. Therefore, Ext.P4 cannot, at any stretch of imagination, be considered as a statement under Section 161 Cr.P.C.

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44. On behalf of the appellants, our attention has been invited to the contents of Exts.D15 and D16. Ext.D15 is the copy of order dated 23.5.2005, passed by the court below, in Crl.M.C.No.1304/05 filed under Section 439 Cr.P.C. for and on behalf of A1, A2, A3, A6 to A10, A12, A13, A16 and A17. It is argued that the contents of Ext.D15 clearly reveal that the said court had an occasion to go through the first statement of PW1, which contains altogether a different version than what is relied on by the prosecution at present. On going through Ext.D15, it seems that the then case brought before the said court by the prosecution was that, the accused in furtherance of their common object of committing the murder of Ashraf, who was a NDF worker, formed themselves into an unlawful assembly armed with deadly weapons and criminally trespassed into the mosque in Kaduvinal Muri and inflicted cut injuries with sword sticks and other dangerous weapons and also caused injury to Ebrahim Kutty (PW1) and others, and also caused damage to the mosque. Even though the contents of Ext.D15 as such need not be relied on, the same probabilise the case pointed out by the appellants at present. The first version of PW1 before PW29 was that he was attacked inside the mosque. The contents of Ext.D15 also reveal that the incident had taken place inside the mosque and the deceased Ashraf as well as PW1 and others were attacked inside the mosque. Therefore, the contents of Ext.D15 relating to the incident, as narrated by the said court, also point towards such a version from the part of PW1 regarding the incident.

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45. Regarding Ext.D16, which is an application under Section 437 Cr.P.C., filed on behalf of the aforesaid accused persons before the court of the learned Magistrate, it has to be noted that the then prosecution case set up before that court was that on 23.2.2005 at 9 p.m., the accused formed themselves into an unlawful assembly, committed rioting armed with deadly weapons at Kaduvinal muri of Vallikunnam Village and thereafter the accused trespassed into the Kaduvinal mosque and attacked and inflicted injuries to the persons standing at the mosque. There also, the version is that there was criminal trespass into the mosque. Coupled with the versions of PW1 before PW29 as well as the contents of his statement as narrated by the court below in paragraph 15 of the impugned judgment when read along with the contents of Exts.D15 and D16, it seems that the earlier stand taken by the prosecution was that there was trespass into the mosque and the deceased along with PW1 and some others were attacked and injured inside the mosque. The said versions are clearly contradictory to the present prosecution case.

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46. On the point regarding the suppression of such a statement by the police and the prosecution, the argument forwarded from the part of the appellants is that the appellants could not fruitfully defend the charges against them as the said first statement, which militates against the prosecution case, was not made available to the appellants during or prior to the trial. It has been argued on behalf of the appellants that without making available a copy of such a statement to the appellants, the court below has recorded the contents of such a statement by verifying a so called copy of such a statement. Whatever be the nature of such a document, or its admissibility, such a statement can be considered as a signed statement by its maker, PW1.

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47. According to the learned Public Prosecutor, the non-production of such a statement and the non-supply of its copy, can at the most be styled as a useless formality, as it would not have served any purpose at all. The said statement cannot be brushed aside by merely stating that it is of no use at all. The non-production of such a statement and the non-supply of its copy, cannot be said to be a 'useless formality'. In case of violation of principles of natural justice, it may be possible to argue that when any

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fruitful purpose will not be served, the violation of such principles of natural justice will be a 'useless formality', as pointed out by the Apex Court. At the same time, the theory of such 'useless formality' is altogether alien to our criminal justice dispensing system. When such a signed statement was furnished by the maker, whose evidence was tendered in a criminal trial in which grave offences were alleged against the appellants, the appellants were entitled to have the copy of such a signed statement, the contents of which clearly militate against the prosecution case. In such circumstances, any further search is not required to conclude that prejudice has been caused to the appellants on account of the non-supply of its copy. Had a copy of the same been served on the appellants, the appellants could have confronted PW1 with the contents of the said statement and they could have clearly impeached PW1 on the basis of its contents, within the meaning of Section 155 (3) of the Indian Evidence Act. The denial of such an opportunity to the appellants, no doubt, clearly militates against the prosecution case.”

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It is evident from the above observations that, one of the reasons which prompted this court to arrive at the conclusion that, the appellants in Annexure II judgment were not guilty was that, the signed statement which was referred to by the Sessions Court, was not furnished to the appellants therein. In para 47 of the said judgment, it is observed as follows: “Had a copy of the same been served on the appellants, the appellants could have confronted PW1 with the contents of the said statement and they could have clearly impeached PW1 on the basis of its contents, withing the meaning of Section 155(3) of Indian Evidence Act. Denial of such opportunity to the appellants, no doubt,

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clearly militates against the prosecution case.” This was one of the circumstances, which went against the prosecution and ultimately resulted in the acquittal of the accused persons. Another circumstance which led to the aforesaid conclusion was that the Police did not immediately register the case on the basis of the information which they directly received immediately after the incident. This Court found that the explanation offered by them was very vague.

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Thus from the nature of the observations of this Court which resulted in finding the accused persons in S.C. No.594/2005 not guilty, it can be seen that the same was based on appreciation of the evidence adduced through the witnesses therein. In paragraph 52 of Moosa’s case (supra) it has been specifically held that acquittal of some of the coaccused persons based of appreciation of evidence in their case cannot be a ground for acquittal of other accused persons in a proceeding under Section 482 of Cr.P.C. In my view, in the light of the principles laid down by this Court in Moosa’s case, it could be possible for the prosecution to adduce evidence explaining the reasons for not registering an FIR on the basis of the direct information received by the Police. Similarly, the reasons for not registering an FIR on the basis of the

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statement of PW1 reported to have been recorded at 4 a.m. on 24.02.2005 can also be explained. Merely because of the reason that this Court while appreciating the evidence adduced by the prosecution in S.C.No.594/2005 before Additional Sessions Court II, Mavelikkara came to a conclusion as to certain irregularities in registration of the crime, that by itself cannot be treated as a ground to arrive at a decision that a different conclusion could not be possible, if a trial against the petitioners herein is conducted subsequently. In other words, the finding entered into by this Court in Annexure II judgment as to the registration of the crime being a finding entered into, on appreciation of evidence adduced in that case, cannot be treated as a ground to conclude that the substratum of the case itself is lost.

¶105

The petitioners are not entitled for a favourable decision in

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the matter of invocation of powers of this Court under Section 482 on another reason as well. In paragraph 53 (viii) of Moosa’s case (supra), it is observed as follows;

¶107

“(viii) While considering the prayer for invocation of the extraordinary inherent jurisdiction to serve the ends of justice, it is perfectly permissible for the court to consider the bona fides - the cleanliness of the hands of the seeker. If he is a fugitive from justice having absconded or jumped bail without sufficient reason or having waited for manipulation of hostility of witnesses, such

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improper conduct would certainly be a justifiable reason for the court to refuse to invoke its powers under Section 482 of the Code of Criminal Procedure.”

¶111

Thus it is contemplated that, in order to avail the said benefit of invocation of inherent jurisdiction, the petitioners have to approach this Court with clean hands. The fact that, the accused is a fugitive who has absconded from justice or jumped bail without any reason, can be treated as a justifiable reason to deny the relief to them. In this case, it is evident from the records that, even though the petitioners were cooperating with the proceedings until the case was committed to the Sessions Court, later they absconded. Consequent to the same, the proceedings against the petitioners were split up and trial was thus conducted only against the remaining accused persons. In such circumstances, as the petitioners herein were fugitives who have absconded from justice by jumping bail, it cannot be treated that they have approached this Court with clean hands. They kept themselves away from the lawful proceedings without any sustainable explanation. In such circumstances, on this ground also I am not inclined to invoke the extraordinary jurisdiction of this Court under Section 482 of Cr.P.C.

¶112

The allegations raised against the petitioners are for the

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offences involving grievous nature. Considering the nature of

¶116

allegations and nature of materials available, I am of the view that the petitioners cannot be granted the benefit of doubt at this point of time. This particularly because in a proceeding under Section 482 Cr.P.C. if two views are possible, the one which supports the prosecution is to be adopted. This is because, denying such an opportunity would cause serious prejudice to the prosecution, as they would be deprived off an opportunity for establishing the offences alleged against the accused persons by adducing proper evidence. On the other hand, even if the proceedings against the accused persons were allowed to continue, all the defenses which the accused have taken, would still be available to them even at that stage and it could be possible for them to establish their innocence during the course of such trial. Thus continuation of the proceedings and relegating the petitioners to undergo the trial would not cause any prejudice to the petitioners. It is also a fact that all the other accused persons who were found to be innocent have already undergone the trial and proved their innocence. I do not find any good reasons to adopt a different procedure in the facts and circumstances of the case as mentioned above, to adjudicate the question of guilt or innocence of the

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petitioners herein.

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In the above circumstances, I do not find any merit in the

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Crl.M.C. and accordingly, it is dismissed.

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Sd/-

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ZIYAD RAHMAN A.A. JUDGE

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scs

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APPENDIX OF CRL.MC 352/2017

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PETITIONER ANNEXURE
ANNEXURE IA TRUE COPY OF THE CHARGE SHEET IN CRIME
NO.39/2005 OF VALLIKUNNAM POLICE STATION
DATED 21.05.2005
ANNEXURE IIA TRUE COPY OF THE JUDGMENT OF HON'BLE
HIGH COURT OF KERALA DATED 11.2.2014 IN
CRL.APPEAL NO.1561/2009

Rajeev v. State of Kerala

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Rajeev v. State of Kerala

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