Chellappan @ Nedumudi v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 5TH DAY OF SEPTEMBER 2016/14TH BHADRA, 1938** **CRL.REV.PET.NO. 1128 OF 2005 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.388/2001 OF ADDITIONAL SESSIONS JUDGE-I,MAVELIKKARA DATED 09-11-2004** **AGAINST THE JUDGMENT IN CC NO.125/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHENGANNUR DATED 24-10-2001** **-----------------------------** **REVISION PETITIONER(S)/APPELLANT:** **--------------------------------** **CHELLAPPAN @ NEDUMUDI, AGED 60 YEARS, S/O. THANKAN, MEENATHETHIL VEEDU, THRIPPERUNTHURA VILLAGE, ERAMATHUR MURI.** **BY ADV. SRI.C.S.DIAS** **RESPONDENT(S)/RESPONDENT:** **-------------------------** **STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. C.N. PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-------------------------------Crl. R.P. No.1128 of 2005 ---------------------------------Dated this the 5[th] day of September, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.388 of 2001 of the Additional Sessions Judge-I, Mavelikkara. He was the accused in C.C. No.125 of 1997 of the Judicial First Class Magistrate Court-II, Chengannur which was filed under Sec.55(a) of the Abkari Act. The learned Magistrate convicted the accused under the above section and sentenced him to rigorous imprisonment for six months and fine of Rs.25,000/- in default of payment of fine, rigorous imprisonment for three months. Against that, he preferred the above Criminal Appeal before the Additional Sessions Judge-I, Mavelikkara, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 08.02.1997 at 8.15 a.m., the accused was found in Crl. R.P. No.1128 of 2005 2 possession of 4½ litres of arrack on the veranda of a shop building near the Sub Registrar office, Mannar. The accused was arrested and the contraband articles were seized. Reaching at the Police station, he registered a crime. After completing investigation, he laid charge in the Judicial First Class Magistrate Court-II, Chengannur. During trial, prosecution examined PW1 to PW7 and marked Exts.P1 to P4. MO1 and MO2 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Magistrate convicted the accused. 3. When the matter came up for hearing, it is submitted that the revision petitioner is no more. Hence this court issued a direction to the Sub Inspector, Mannar to furnish a report and death certificate of the revision petitioner. Accordingly death certificate issued from the Secretary, Chennithala Grama Panchayath was produced which is marked as Ext.C1. As per Ext.C1 the revision petitioner died on 17.06.2012. Crl. R.P. No.1128 of 2005 3 4. According to Section 394 Cr.P.C., every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Section 394 Cr.P.C. reads as follows: **“394. Abatement of appeals.-** (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Provided that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. Explanation .-In this section “near relative” means a parent, spouse, lineal descendant, brother or sister.” Proviso says that if the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. According to Section 394(2) Cr.P.C., Crl. R.P. No.1128 of 2005 4 every other appeal (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. But in case of revision even after the death of the revision petitioner, the revision would survive. S.394 Cr.P.C. applies only to appeals alone and in the absence of any statutory provision, High Court has power to pass appropriate orders in exercise of its revisional jurisdiction. 5. Five Judges Bench of the Apex Court in **Pranab Kumar Mitra** v. **State of W.B. and another** [ AIR 1959 SC 144] considered the question of abatement in revision and observed that where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then notwithstanding the death of the convicted person pending the revision it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. Crl. R.P. No.1128 of 2005 5 6. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a subordinate court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interfering with the above power. 7. For ascertaining the illegality or irregularity I have examined the oral and documentary evidence in this case. The offence was detected by PW4 Junior Sub Inspector, Mannar Police station. His case is that on 08.02.1997 at 8.15 a.m., PW7, the Sub Inspector, Crl. R.P. No.1128 of 2005 6 Mannar Police station got information that the accused was standing near the Mannar Registrar Office junction with arrack. Immediately PW7 instructed PW4 to enquire about the same. PW4 along with the Police party reached at the place of occurrence and found the revision petitioner standing with MO2 big shopper. PW4 examined it and detected 4½ litres of arrack in a can. He prepared Ext.P1 mahazar. On the basis of that, he registered a crime. Ext.P2 is the FIR. The seized articles were marked as MO1 and MO2. PW5 and PW6 supported the oral evidence of PW4. The independent witness PW1 to PW3 turned hostile and denied the signature in the mahazar. The Sub Inspector, PW7 supported the evidence of PW4 to PW6. He deposed that PW4 the junior Sub Inspector detected the offence and he conducted the investigation. Ext.P3 is the property list. The contraband articles were sent over to chemical examiners lab and Ext.P4 is the Chemical Examination Result. There was no serious challenge from the side of the revision petitioner with regard to the procedure. No circumstances are brought Crl. R.P. No.1128 of 2005 7 out to discredit the evidence of official witness. PW4 and PW7 are the official witness is not a ground to discard their evidence. There is no illegality or irregularity in the findings of the courts below. There is no merit in this revision petition and it is dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** NS/06/09/2016 / True Copy / P.A. To Judge