Allowed

Saji Ninan v. C.P.Sureshkumar

Kerala HC13 Oct 2022Crl.MC/2743/2022

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appellant's challenge against the Sessions Court's order summoning documents under Section 391 Cr.P.C. The summaryThe High Court set aside the order summoning inadmissible documents. The petition under Section 482 Cr.P.C. was allowed. The appellate court was directed to dispose of the appeal on merits within 30 days.

What did the court decide?

The impugned order summoning documents is set aside. The criminal miscellaneous case is allowed. The Additional Sessions Judge is directed to dispose of the appeal on merits within 30 days.

Saji Ninan Vs C.P.Sureshkumar — Criminal Trial and Appeal | Kerala HC (2022)

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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 A. BADHARUDEEN

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THURSDAY, THE 13TH DAY OF OCTOBER 2022 / 21ST ASWINA, 1944

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CRL.MC NO. 2743 OF 2022

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AGAINST THE ORDER/JUDGMENT IN ST 163/2016 OF CHIEF JUDICIAL MAGISTRATE, KOTTAYAM

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CRMP 3063/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV,
KOTTAYAM / II ADDITIONAL MACT, KOTTAYAM

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PETITIONER/RESPONDENT NO.1:

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SAJI NINAN
AGED 51 YEARS
SON OF P.K.PHILIPPOSE,
SANTHI BHAVAN, PAKKIL P.O., NATTAKOM VILLAGE,
KOTAYAM., PIN - 686012
BY ADVS.
C.S.MANILAL
S.NIDHEESH

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RESPONDENTS/APPELLANT & STATE:

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1C.P.SURESHKUMAR
AGED 51 YEARS
SON OF PURUSHOTHAMAN NAIR,
PARVATHY VILAS, THIRUVANCHOOR P.O.,
KOTTAYAM NOW RESIDING AT KUNNEL VEEDU,
VELLOOR P.O., PAMPADY, KOTTAYAM., PIN - 686501
2STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
BY ADVS.
KRISHNA KUMAR J
P.V.THOMAS(K/992/1994)
SR.PP-SRI.T.R.RENJITH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 2743 OF 2022

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A. BADHARUDEEN J.

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--------------------------------------------------------Crl. MC. No. 2743 of 2022

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--------------------------------------------------------- Dated, this the 13^th day of October, 2022

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O R D E R

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This is a petition filed under section 482 of Criminal Procedure Code (‘Cr.P.C.’ hereinafter for short), challenging Order in Crl. M.P. No. 3063/2019 in Crl. A. No. 205/2018 on the file of Additional Sessions Court IV, Kottayam. The revision petitioner is the 1^st respondent in the appeal and the original complainant before the trial court.

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Heard both sides in detail.

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Annexure -1 order is to put under challenge in

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this matter, on the ground of the learned Sessions Judge called for documents, which have no relevance to the facts in issue, and the documents, which could be produced by the party himself before the court and also a document,

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CRL.MC NO. 2743 OF 2022

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which is inadmissible in evidence, since its admission and authenticity is barred under section 162 and 172 of Cr.P.C.

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Annexure - 2 is the copy of the list of documents

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sought to be summoned as per the petition, wherein the impugned order was passed. Item number 1 is a complaint No. 25051/16 lodged by the appellant before DYSP, Kottayam. Item No. 2 is the copy of FIR in crime No.268/16 of Kottayam East police station, registered on the basis of item No.1 complaint. Item No. 3 is the final report filed in the above crime. Item No. 4 is the statement given by the complainant in this matter to the S.I. of police, Kottayam and Item No. 5 is the copy of notice given in relation to the refer charge as Item No.4.

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It is argued by the learned counsel for the petitioner that the order is per se illegal and the learned Sessions Judge overstepped the power available under section 391 Cr.P.C. He submitted the petition itself was one filed by the appellant before the Sessions court with

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CRL.MC NO. 2743 OF 2022

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intend to protract the matter, without bonafides.

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Per contra, the learned counsel for the first respondent in this revision petition, supported the impugned order and argued that the said documents are necessary to decide the issue involved in the case. On a plane reading of Section 391 Cr.P.C. dealing with the power of the appellate court to take further evidence or direct it to be taken, it is provided as under:

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(1) In dealing with any appeal under this

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Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

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(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and

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such Court shall thereupon proceed to dispose of the appeal.

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(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

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(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.

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In this case the learned counsel for the petitioner rightly pointed out that item No. 1 to 5 are documents available before the learned Magistrate Court concerned and the appellant could very well get certified copies of the same and produce before the trial court, if he had any contention to defeat the prosecution launched by the complainant alleging commission of offence under section 138 of Negotiable Instrument Act. It is pertinent to note that item no.4 is the copy of statement given by the complainant, who was arrayed as accused in Crime No.

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CRL.MC NO. 2743 OF 2022

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268/2016. In fact, the said document is hit by section 162 of Cr.P.C. and is inadmissible in evidence. The learned Sessions Judge failed to take note of this fact while calling for the said document. Regarding documents No. 1 to 3 and 5 are concerned, though these documents can be tendered in evidence by examining persons who can speak of its contents, the petitioner remained silent during the trial and, accordingly, on the basis of evidence adduced before the trial court, the accused was convicted and sentenced. It was thereafter the present petition was filed at the appellate stage. The learned Sessions Judge allowed the petition holding that the appellate court has power under Section 391 of Cr.P.C. with an object to appropriately decide the appeal by the appellate court. The said legal position is not in dispute, since the power of the appellate court to call to adduce additional evidence under section 391 of Cr.P.C. is well protected. But that power shall be exercised sparingly and an appellate court cannot sit as trial court to go for further evidence in a

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CRL.MC NO. 2743 OF 2022

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casual manner.

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In this case as I have already discussed, the appellant failed to take any steps to bring documents Nos. 1 to 3 and 5 before the court below in the manner provided under law, by examining the persons, who are competent to depose about the contents of the documents so as to tender the documents as part of evidence. Thereafter, at the appellate stage, the documents were asked to be summoned and the learned Sessions Judge allowed the same.

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It is relevant note that, as per the documents sought to be summoned also, the complaint lodged by the revision petition against the 1^st respondent/ complainant ended in refer report. No steps taken by the revision petitioner to proceed further or to object the refer report, though he was given notice while referring Crime No. 268/2016. To upshot, documents Nos. 1 to 3 and 5 which are available before the Magistrate Court, were asked to be called for as per the impugned order. It is to be noted

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that, if the revision petitioner wanted to put the said documents in evidence he could have obtained its certified copies and produced before the trial court. It is apparent that the documents No. 1 to 3 and 5 are relating to a crime registered against the 1^st respondent as accused, but the same ended in refer report and no further steps taken to proceed against the refer report by the petitioner herein. Therefore, the same documents are of no relevance to decide the appeal on merits and the evidence adduced by the complainant and other available evidence before the appellate court to be re-appreciated for disposal of the appeal. In view of the matter the order impugned is found to be not sustainable. Accordingly, the same stands set aside.

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In the result the criminal MC stands allowed. 11. It is reported by the learned Additional Sessions

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Judge IV, Kottayam that the appeal has been pending as of now, as per letter dated 11.10.2022. Therefore, the appellate court is directed to hear and dispose of the

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appeal on merits within a period of 30 days from the date of receipt or production of a copy of this judgment.

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Registry is directed to forward a copy of this judgment to the Additional Sessions Judge IV, Kottayam within 7 days for information without fail.

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Sd/A. BADHARUDEEN, JUDGE

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san

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CRL.MC NO. 2743 OF 2022

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APPENDIX OF CRL.MC 2743/2022

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PETITIONER ANNEXURES
Annexure1TRUE COPY OF THE ORDER DATED 23.2.2022
IN CRL.M.P.NO.3063/2019 IN CRL.APPEAL
NO.205/2018 ON THE FILE OF THE
SESSIONS COURT, KOTTAYAM
Annexure2TRUE COPY OF THE LIST OF DOCUMENTS
DATED 17/12/2019 SOUGHT FOR WHICH
ADDITIONAL EVIDENCE WAS REQUESTED TO
BE ADDUCED

Saji Ninan v. C.P.Sureshkumar

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Saji Ninan v. C.P.Sureshkumar

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