CRL.M.C Nos.1246 of 2019 & 877 of 2021, High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 ``` ## **`CRL.MC NO. 877 OF 2021`** ``` AGAINST THE ORDER/JUDGMENT IN SC 951/2020 OF SPECIAL COURT- OFFENCES UNDER SC/ST (POA) ACT, KOTTARAKKARA ``` ## **`PETITIONER/ACCUSED:`** ``` DIVYA AGED 38 YEARS W/O. SUMESH, KESAVA VILASOM, KARIMBINPUZHA P.O, PAVITHRESWARAM VILLAGE, PUTHOOR, KOLLAM 691 507 BY ADVS. P.RAHUL SHRI.RAJESH V. PRASAD ``` ## **`RESPONDENTS/STATE AND DE-FACTO COMPLAINANT:`** |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`(SHO, PUTHOOR POLICE STATION, KOLLAM DISTRICT)`**| ||**`REPRESENTED BY THE PUBLIC PROSECUTOR,`**| ||**`HIGH COURT OF KERALA, ERNAKULAM`**| |**`2`**|**`REMANI,`**| ||**`AGED 46 YEARS`**| ||**`W/O. RAVEEDNRAN, REVATHY BHAVANAM,`**| ||**`NEAR PALAMUKKU, KARIMBINPUZHA P.O,`**| ||**`PAVITHRASWARAM VILLAGE,`**| ||**`KOTTARAKKARA, KOLLAM 691 507`**| ||**`BY ADV SRI.H.PRAVEEN (KOTTARAKARA)`**| ||**`BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR`**| ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH Crl.MC.1246/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022/1ST AGRAHAYANA, 1944 ``` ``` CRL.MC NO. 1246 OF 2019 ``` ``` AGAINST THE ORDER/JUDGMENT IN CC 823/2017 OF JUDICIAL ``` ``` MAGISTRATE OF FIRST CLASS -II,KOTTARAKKARA ``` ## **`PETITIONER/DEFACTO COMPLAINANT:`** ``` REVATHY, AGED 24 YEARS W/O.CHAITHRAN, REVATHY BHAVANAM, KARIMBINPUZHA MURI, PAVITHRESWARAM VILLAGE, PUTHOOR, KOLLAM DISTRICT-691507. BY ADV H.PRAVEEN (KOTTARAKARA) ``` ## **`RESPONDENTS/STATE & ACCUSED 1 TO 4:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HON'BLE HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.`** - **`2 SUMESH, AGED 38 YEARS`** - **`S/O.SUKUMARA PILLAI, KESAVA VILASOM, KARIMBINPUZHA MURI, PAVITHRESWARAM VILLAGE, PUTHOOR, KOLLAM DISTRICT-691507.`** - **`3 SUKUMARA PILLAI, AGED 62 YEARS KESAVA VILASOM, KARIMBINPUZHA MURI, PAVITHRESWARAM VILLAGE, PUTHOOR, KOLLAM DISTRICT-691507.`** - **`4 DIVYA, AGED 35 YEARS W/O.SUMESH, KESAVA VILASOM, KARIMBINPUZHA MURI, PAVITHRESWARAM VILLAGE, PUTHOOR, KOLLAM DISTRICT-691507.`** ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 3 ``` ``` 5SUSHEELA, AGED 55 YEARS W/O.SUKUMARA PILLAI, KESAVA VILASOM, KARIMBINPUZHA MURI, PAVITHRESWARAM VILLAGE, PUTHOOR, KOLLAM DISTRICT-691507. ``` ``` BY ADVS. P.RAHUL ASHWIN ANTONY THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH Crl.MC.877/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 4 ``` ## **O R D E R** Dated this the 22[nd] day of November, 2022 Crl.M.C.No.1246/2019 is a petition filed by the defacto complainant in C.C.No.823/2017 on the file of the Judicial First Class Magistrate Court-II, Kottarakara and in this petition filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’ for convenience), the petitioner seeks to recall Annnexure A2 judgment dated 17.10.2018 in Crl.M.C.No.3556/2018 of this Court and to re- hear the matter. 2. In Crl.M.C.No.877/2021, the accused in S.C.No.951/2020 on the file of the Special Judge, Special Court for SC/ST (POA) Act Cases, Kottarakkara seeks quashment of Annexure E order dated 19.10.2020 in Crl.M.P.No.208/2019, whereby the learned Special Judge took cognizance of the offence punishable under Sections ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 5 ``` 294(b), 324 of IPC and also under Sections 3(1)(s) & 3(2) (va) of the the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (hereinafter referred to as “the SC/ST (POA) Act”), to proceed against the accused. 3. Heard the respective counsel in both cases. 4. The first question to be decided is, _whether recall of Annexure A2 Judgment in Crl.M.C. No.3556/2018 of this Court is liable to be allowed?_ 5. In this connection, the learned counsel for the petitioner placed a decision of this Court reported in **Pushpangathan v. State of Kerala (2015 (3) KLT 105)** to contend that, this Court has the power to recall the judgment and re-hear and dispose of the same. 6. In the said decision, this Court considered the power ‘to recall’ a judgment, where recall of the judgment ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 6 ``` was sought on the ground that the name of the counsel appearing for the complainant was not shown in the cause list and so, the lawyer concerned could not argue the matter. In fact, treating the same as an omission on the part of this Court, this Court recalled the judgment. 7. The learned counsel for the other side placed a decision reported in **Sooraj Devi v. Pyara Lal (1981 KHC 75)** and argued that the inherent power of the court is not contemplated by saving provision contained in Section 362 of Cr.P.C. and therefore, the attempt to invoke that power can be of no avail. Further, a clerical or arithmetical error occasioned by an accidental slip or omission of the Court can only be interfered by exercising the power under Section 362 of Cr.P.C. 8. In the case on hand, on a mere perusal of Annexure A2 judgment, it is crystal clear that notice was served upon the petitioner, who is the defacto complainant ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 7 ``` in Crl.M.C.No.3556/2018 and the petitioner did not appear before the Court and this Court considered the arguments of the petitioner in the above petition along with submissions made by the learned Public Prosecutor and finally ordered as under: “In the result, Crl.M.C. is allowed in part. Offence alleged under Section 294(b) is quashed. The proceedings against all the accused except the 2[nd] petitioner will also stand quashed. Hence, the 2[nd] petitioner alone shall face the prosecution for offence under Section 323 IPC. This will not preclude the 2[nd] petitioner from raising his preliminary objections, if he is legally entitled to.” 9. As per Annexure A2 judgment, proceedings against the second accused alleging commission of offence under Section 323 of IPC as per crime No.900/2017 of Puthoor Police Station alone ordered to be proceeded. 10. Coming to Crl.M.C.No.877/2021, crime No.900/2017 of Puthoor police station was registered based ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 8 ``` on the FIS given by one ‘Revathy’, D/o.Remani. In the said case, Revathy had made no allegations with regard to commission of offences under the SC/ST (POA) Act. It is very pertinent to note that in the said crime, Remani, who lodged the 2[nd] complaint, vide Crl.M.P.No.208/2019 was the 4[th] witness. Annexure H(3) in Crl.M.C.No.877/2021 is the statement given by the present defacto complainant which lead to Annexure E order of the learned Special Judge. In the said statement, even on a meticulous reading of the entire statement, no allegation could be noticed as to commission of any offences under the SC/ST (POA) Act. It was thereafter, the present complaint was filed, adding more allegations and the Special Court, on recording the statement of the defacto complainant alone, without noticing either Annexure A2 judgment herein above referred or the statement of the same defacto complainant in crime No.900/2017 believed the sworn statement and finally, as ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 9 ``` per Annexure E order, cognizance was taken. In fact, such a procedure cannot be justified in the eye of law. Therefore, Annexure E order is liable to be set aside. In the result, Crl.M.C.No.1246/2019 stands dismissed and Crl.M.C.No.877/2021 stands allowed and Annexure E order dated 19.10.2020 in Crl.M.P.No.208/2019 in S.C.No. 951/2020 on the file of the Special Court (for SC/ST (POA) Act Cases), Kottarakkara shall stand quashed. ## **Sd/-** ## **A. BADHARUDEEN** **JUDGE** nkr ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 1246/2019`** ``` PETITIONER ANNEXURES ANNEXURE A1CERTIFIED COPY OF THE FIR IN CRIME NO.900/2017 OF PUTHOOR POLICE STATION. ``` ``` ANNEXURE A2TRUE COPY OF THE JUDGMENT IN CRIMINAL M.C.3556/2018 DATED 17.10.2018. ANNEXURE A3TRUE COPY OF THE FIS STATEMENT DATED 13.6.2017. ``` ``` ANNEXURE A4TRUE COPY OF THE ADDITIONAL STATEMENT PRODUCED BY THE RESPONDENTS. ANNEXURE A5TRUE COPY OF THE ACCIDENT REGISTER CUM WOUND CERTIFICATE ISSUED FROM GOVERNMENT TALUK HEADQUARTERS HOSPITAL, KOTTARAKARA DATED 16.6.2017. ANNEXURE A6TRUE COPY OF THE DISCHARGE CARD ISSUED TO THE PETITIONER FROM GOVERNMENT TALUK HEADQUARTERS HOSPITAL, KOTTARAKARA DATED 19.6.2017. ``` ``` ANNEXURE A7TRUE COPY OF THE COMMUNICATION DATED 19.9.2017 ISSUED FROM THE OFFICE OF THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA. ``` ``` ANNEXURE A8TRUE COPY OF THE COMMUNICATION ISSUED FROM THE REGISTRAR (SUBORDINATE JUDICIARY), HIGH COURT OF KERALA DATED 21.4.2018. ``` ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 11 ``` ## **`APPENDIX OF CRL.MC 877/2021`** - **`PETITIONER ANNEXURES ANNEXURE A CERTIFIED COPY OF THE PROTEST COMPLAINT FILED BY THE 2ND RESPONDENT, TOGETHER WITH THE CERTIFIED READABLE COPY.`** - **`ANNEXURE B CERTIFIED COPY OF THE SWORN STATEMENT OF THE DE-FACTO COMPLAINT, TOGETHER WITH THE READABLE TYPED COPY`** - **`ANNEXURE C CERTIFIED COPY OF THE SWORN STATEMENT OF WITNESS NO.2 TOGETHER WITH THE READABLE TYPED COPY`** - **`ANNEXURE D CERTIFIED COPY OF THE SWORN STATEMENT OF WITNESS NO.3 (TOGETHER WITH THE READABLE TYPED COPY`** - **`ANNEXURE E CERTIFIED COPY OF THE ORDER OF THE SPECIAL COURT FOR SC/ST(POA) ACT CASES, KOTTARAKKARA IN CRL.M.P NO. 208/2019 IN SC NO. 951/2020`** - **`ANNEXURE F A TRUE COPY OF THE FIR IN CRIME NO. 900/2017 OF PUTHOOR POLICE STATION, KOLLAM`** - **`ANNEXURE G A TRUE COPY OF THE FIS IN CRIME NO. 900/2017 OF THE PUTHOOR POLICE STATION, KOLLAM`** - **`ANNEXURE H TRUE COPY OF THE ADDITIONAL STATEMENT OF THE DE-FACTO COMPLAINT (REVATHY) IN CRIME NO.900/2017 OF PUTHOOR POLICE STATION`** - **`ANNEXURE H(1) TRUE COPY OF THE STATEMENT OF CHAITHRAN (CW2) IN CRIME NO.900/2017 OF PUTHOOR POLICE STATION`** - **`ANNEXURE H(2) TRUE COPY OF THE STATEMENT OF RAVEENDRAN (CW3) IN CRIME NO.900 OF 2017 OF PUTHOOR POLICE STATION`** - **`ANNEXURE H(3) TRUE COPY OF THE STATEMENT OF REMANI (CW4) IN CRIME NO.900/2017 OF PUTHOOR POLICE STATION`** - **`ANNEXURE H(4) TRUE COPY OF THE STATEMENT OF RESHMI (CW5) IN CRIME NO.900/2017 OF PUTHOOR`** ``` CRL.MC Nos.1246 OF 2019 & 877 OF 2021 ``` ``` 12 ``` ||**`POLICE STATION.`**| |---|---| |**`ANNEXURE H(5)`**|**`TRUE COPY OF THE STATEMENT OF`**| ||**`THANKAMMA (CW6) IN CRIME NO. 900/2017`**| ||**`OF PUTHOOR POLICE STATION.`**| |**`ANNEXURE H(6)`**|**`TRUE COPY OF THE STATEMENT OF GOPI`**| ||**`(CW7) IN CRIME NO. 900/2017 OF PUTHOOR`**| ||**`POLICE STATION.`**| |**`ANNEXURE H(7)`**|**`TRUE COPY OF THE STATEMENT OF ANUROOP`**| ||**`(CW8) IN CRIME NO. 900/2017 OF PUTHOOR`**| ||**`POLICE STATION.`**| |**`ANNEXURE H(8)`**|**`TRUE COPY OF THE STATEMENT OF`**| ||**`THANKAMONY (CW9) IN CRIME NO. 900/2017`**| ||**`OF PUTHOOR POLICE STATION.`**| |**`ANNEXURE H(9)`**|**`TRUE COPY OF THE STATEMENT OF MOHANAN`**| ||**`(CW10) IN CRIME NO. 900/2017 OF`**| ||**`PUTHOOR POLICE STATION.`**| |**`ANNEXURE I`**|**`TRUE COPY OF THE FINAL REPORT INC RIME`**| ||**`NO. 900/2017 OF PUTHOOR POLICE STATION`**| |**`ANNEXURE J`**|**`TRUE COPY OF THE ORDER OF THIS HON'BLE`**| ||**`COURT IN CRL.M.C NO. 3556/2018`**|