Abraham Lukose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940** ## **Crl.Rev.Pet.No. 162 of 2019** **AGAINST THE ORDER/JUDGMENT IN CMP NO.6278/2018 IN CC 30/2012 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, ETTUMANUR** ## **REVISION PETITIONER/S:** **ABRAHAM LUKOSE AGED 58 YEARS S/O.LUKOSE, CHUNGAMMOOLAYIL HOUSE, ONAMTHURUTHU VILLAGE, NEENDOOR, PIN CODE-686601, KOTTAYAM DISTRICT.** **BY ADVS. SMT.K.G.MARY SRI.ARUN P. ANTONY SRI.SAILAJ RAMACHANDRAN** ## **RESPONDENT/S:** **1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031. 2 SUB INSPECTOR, ETTUMANOOR POLICE STATION, PIN CODE-686631.** ## **OTHER PRESENT:** ## **SHRI.C.S.HRITHWIK, PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.Rev.Pet.No. 162 of 2019** -2- ## **ORDER** **The petitioner is the accused in C.C.No.30/2012 on the files of the court below. The learned Public Prosecutor filed CMP No.6278/2018 before the trial court under Section 91 Cr.P.C., praying for issuing summons to produce certain documents. The court below as per AnnexureA2 order allowed the said petition, against which this revision petition has been filed.** **2. The learned counsel for the revision petitioner has argued that since the said documents were not produced along with the final report, the revision petitioner was** ## **Crl.Rev.Pet.No. 162 of 2019** -3- **taken to surprise on filing the application and in the said circumstances, the court below ought not have allowed the said application.** **3. The learned counsel has further argued, relying on the decision of the Apex Court in Sharadbhai Jivanlal Vaniya v. State of Gujarat [(2011) 14 SCC 377], that the court below was not justified in permitting the State to produce additional documents once the trial is commenced. Per contra, the learned Public Prosecutor Smt.Sreeja has submitted that the records sought to be** **called for were the records seized as per mahazar dated 30.12.2012 and hence the said** ## **Crl.Rev.Pet.No. 162 of 2019** -4- **documents cannot be said to be new documents produced by the prosecution, particularly when the seizure mahazar was produced before the court immediately after the seizure.** **4. It appears from the order impugned that the documents sought to be produced were the documents seized by the Investigating Officer as per mahazar dated 30.12.2012. That mahazar was also produced before the court. In the memo of evidence,** **it was proposed that the said mahazar to be marked through CW12, the Section Officer of Home Department (Attestation)** **Thiruvananthapuram. The documents sought for are the photocopy of the two birth** ## **Crl.Rev.Pet.No. 162 of 2019** -5- **certificates produced by the petitioner before the Home Department for going abroad. However, the said documents were found to be forged and hence the said documents were seized as per Mahazar dated 30.12.2012 and thereafter, the said documents were returned to the Section Officer, Home Department (Attestation), Thiruvananthapuram, who is cited as CW12 in the final report. Now summons is to be issued for the examination of CW12. However, the said documents are with CW12 and hence the said documents are to be produced before the court before the examination of CW12, is the submission of the learned Public Prosecutor. Since the** ## **Crl.Rev.Pet.No. 162 of 2019** -6- **said documents were seized by mahazar dated 30.12.2012, and the said documents were returned to CW12, the court below was justified in calling for the production of the said documents.** **5. In Sharadbhai Jivanlal Vaniya (supra), the trial court acquitted the accused therein and the High Court reversed the finding of acquittal mainly relying on a letter written by the deceased to her sister-in-law. The said letter was not produced during the course of investigation. There was also nothing on record to establish its authenticity. The said record was produced by the prosecution** ## **Crl.Rev.Pet.No. 162 of 2019** -7- **only during the course of evidence. In the said circumstances, the Apex Court held that the order of acquittal ought not have been reversed relying on an unauthenticated letter. In this case, the facts are entirely different. The documents were seized and the mahazar in respect of the seizure was produced before the court and the copy of the said mahazar was already given to the petitioner. Therefore, there was no occasion for the petitioner to have any surprise.** **6. The learned counsel for the petitioner has further argued that the petitioner was not heard before passing the** ## **Crl.Rev.Pet.No. 162 of 2019** **order impugned. I am unable to accept the said contention in view of the specific recital in paragraph four of the order impugned that the learned counsel for the petitioner was heard and the learned counsel of the petitioner opposed the petition on the ground that the documents sought to be produced were not produced along with the final report. The petitioner also did not file any affidavit stating that the petitioner was not heard before the court below. Therefore, this court has to accept what was stated by the court below in the order impugned.** **7. Considering the relevant inputs, I am** ## **Crl.Rev.Pet.No. 162 of 2019** -9- **of the view that the decision in Sharadbhai Jivanlal Vaniya (supra) is not applicable to the facts of this case. Having gone thorough the relevant inputs, I am satisfied that the order impugned does not suffer from any illegality, impropriety or incorrectness, warranting interference by this Court.** **In the result, this Crl.R.P. stands dismissed.** Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE// **Crl.Rev.Pet.No. 162 of 2019** -10- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**CERTIFIED COPY OF THE APPLICATION FILED**| |---|---| ||**BY THE PROSECUTION NUMBERED AS**| ||**CMP.NO.6278/18 DATED 11.12.18 U/S.91 OF**| ||**THE CODE OF CRIMINAL PROCEDURE.**| |**ANNEXURE A2**|**CERTIFIED COPY OF THE ORDER PASSED BY**| ||**THE COURT BELOW IN CMP NO.6278/18 ON**| ||**11.12.18.**| |**RESPONDENT'S**|**EXHIBITS:**<br>**NIL**| **//TRUE COPY// P.A. TO JUDGE** **STK**