John v. State of Kerala

Crl.M.C. 5669/2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943** **CRL.MC NO. 5669 OF 2021** **CMP 1017/2021 OF CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM CRIME 2526/2019 OF VIZHINJAM POLICE STATION** ## **PETITIONER/ACCUSED NO.2(APPROVER):** **JOHN** **AGED 68 YEARS,S/O. VAREETH, HOUSE NO.257, KULAPPURA, PUTHIYATHURA, KARINKULAM, VIZHINJAM, THIRUVANANTHAPURAM, PIN-695521.** **BY ADVS.K.S.BHARATHAN** **ALPHIN ANTONY AADITHYAN S.MANNALI** **VISAKH ANTONY ABEL ANTONY CHRISTINE MATHEW RANCE R.** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** - **2 SUB INSPECTOR OF POLICE,** - **VIZHINJAM POLICE STATION,THIRUVANANTHAPURAM,PIN-695521.** - **3 VENSESLAS, AGED 74 YEARS,S/O. POLYCARB, ST.ANTONYS HOUSE,** - **AMBALATHUMOOLA, VIZHINJAM, THIRUVANANTHAPURAM, PIN695521.** **SR.PP - SRI. HIRTHWIK C.S.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **26.11.2021, THE COURT ON 21.12.2021 PASSED THE FOLLOWING:** Crl.M.C. 5669/2021 2 ## **O R D E R** This is a petition filed under Section 482 of the Criminal Procedure Code filed by the 2[nd] accused in crime 2526 of 2019 of Vizhinjam police station. The facts leading to the filing of the petition are as follow: The petitioner is a senior citizen, aged 68 years. The said crime was originated on a private complaint preferred by the 3[rd] respondent before the Judicial First Class Magistrate’s Court (Temporary), Neyyattinkara alleging offence under Sections 415, 416, 417, 418, 419, 420, 463, 464, 465, 466, 468, 471 read with 34 of the IPC. When the complaint was forwarded to the police under Section 156(3) of the Cr.P.C, the said crime was registered and the investigation is in progress. 2. The subject matter of the said crime is sale deed, No.13/2007 of Venganoor Sub Registry, which was executed by the petitioner, the 2[nd] accused to the 1[st] accused. Going by the statement of facts given by the petitioner, the allegation is that he had impersonated the true owner of 1.66 Ares of land owned and possessed by John, aged 62 years, S/o. Vareeth, who is the 2[nd] witness in the complaint, comprised in R.sy. 462/5(1) in Block No.16 of Kottukal village and has forged the document styled as sale deed in favour of the first accused. The third accused is the witness to Crl.M.C. 5669/2021 3 the forged sale deed. The allegations, going by Annexure-A2, are as follow: The names of the petitioner and the second witness are the same, their fathers name are also the same. Taking advantage of this similarity, accused Nos.1 and 3 made the petitioner to impersonate as the original owner of the property, John S/o.Vareeth and on that basis created sale deed No.13/2007 of Venganoor Sub Registry in respect of the property of the second witness, in favour of the first accused. Later, on the basis of the said sale deed, the 1[st] accused approached the revenue authorities and effected mutation in his name and started paying land tax for the property. The property, that is 1.66 Ares equal to 4 cents, belong to the second witness. However, the said sale deed was executed in respect of 1.90 Ares, that is 4.693 cents, in favour of the 1[st] accused and using the said document, the first accused instituted a suit against the defacto complainant, the adjacent property owner and obtained some reliefs from the civil court. But only on 30.05.2018, the 3[rd] respondent, the defacto complainant knew about the mischiefs committed by the accused persons and that was how he made a complaint before appropriate authorities and also before court, which was sent for registering the crime and its investigation is underway. Crl.M.C. 5669/2021 4 3. Meanwhile, the petitioner conveyed his intention to turn approver. Thus he approached the Chief Judicial Magistrate, who, after making necessary enquiries, granted him pardon and was made an approver. At the same time, by Annexure-A5 order dated 12.11.2021, the petitioner who was not on bail was ordered to be detained in custody in the District Jail, Thiruvananthapuram till the termination of the trial under Section 306(4)(b) of the Cr.P.C. In other words, from 12[th] November, 2021 onwards the petitioner is in judicial custody, is under detention. Even though he was not on bail, he is now under detention and therefore his detention till the termination of the proceedings is illegal and unauthorised and therefore he seeks to quash Annexure-A5 order. 4. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. 5. Relying on the decision reported in **Saidevan Thampi and another v. State of Kerala and others [2013 KHC 694]** the learned counsel for the petitioner submitted that there is no such mandate that the person who is granted pardon should be in custody throughout the proceedings. The learned counsel also relied on the decisions reported in **Ismail @ Francis v. State of Kerala [2016 (4) KHC 26]** and **Abdul** Crl.M.C. 5669/2021 5 ## **Azeez P.V. @ Bava Azeez v. State of Kerala [2019 KHC 877]** . 6. As stated earlier, the petitioner is the 2[nd] accused in the said crime where offences under Sections 415 to 420 and 463, 466, 468 and 471 read with 34 IPC are alleged against three persons including the petitioner. The sum and substance of the allegations has already been set out earlier. The name of the petitioner and his father is the same as that of the second witness in the complaint. The property belongs to the second witness, who has four cents of land. Taking advantage of the similarity in the name of himself and his father the accused persons, three in number, in furtherance of their common intention, made the petitioner to execute a sale deed in respect of 4.693 cents of land, by impersonating the real owner, the second witness, in favour of the first accused; later using that document the first accused instituted a suit against the defacto complainant and obtained some reliefs. The defacto complainant knew about the mischief played by the accused persons only on 30.05.2018, despite the fact that the sale deed was executed way back in 2007. Whatever it may be, immediately on getting knowledge about the mischievous acts of the accused persons, he moved the court with the complaint, which was forwarded to the police and thus the crime was registered and investigation Crl.M.C. 5669/2021 6 is going on. 7. When the petitioner had expressed his desire to become approver, the same was conveyed and the learned Chief Judicial Magistrate, Thiruvananthapuram gave a notice to him asking him to appear before court and to answer queries put by the court. After convincing that he had offered to give true and correct disclosure of what had happened, he was declared approver and pardon was tendered on that ground. He was not on bail at that time. Therefore the court simultaneously committed him to the District Jail, Thiruvananthapuram and directed him to be in custody till the termination of the trial under Section 306(4)(b) of the Cr.P.C. 8. The learned counsel for the petitioner submits that Section 306(4)(b) does not stipulate a person who is not on bail, to be detained in custody. Therefore, according to the learned counsel, that order is liable to be quashed. 9. Section 306(4)(b) of the Cr.P.C. indicates that every person accepting a tender of pardon made under sub-section (1)(b), shall, unless he is already on bail, be detained in custody until the termination of the trial. It is true that the petitioner was not on bail. Till that day he was not in custody. He had neither opted to offer bail nor he was detained by the Crl.M.C. 5669/2021 7 court. He had gone to the court pursuant to the notice issued, may be at the instance of the Investigating Officer when he had offered to stand as approver and make full and clear disclosure with regard to the allegations. After appearing before the court and after offering to make full and correct disclosure of the crime committed by him and on being convinced that the court accepted his offer, declared him as an approver. 10. As rightly pointed out by the learned counsel for the petitioner Section 306(4)(b) prescribes for detaining him unless he is already on bail. Here it is true that he was not on bail. At the same time he was not in judicial custody. Therefore, merely for the reason that he had offered to give complete disclosure of the crime, he should not have been detained in custody till the termination of the proceedings. In the decision in **Saidevan** **Thampi** , quoted supra, the learned single Judge has made a survey of all the precedents on the subject and observed as follow: “91. Following the principle laid down in the above decisions and the scope and ambit of the power under Section 462 Cr.P.C. it cannot be said that the so-called prohibition under Section 306(4)(b) Cr.P.C. is a fetter on the power of the Court under Section 482 Cr.P.C. to render justice to the parties and to do such acts as are necessary to secure the ends of justice. The said provision is sufficient, in appropriate cases, for the Courts to grant such relief as the situation warrants. If Crl.M.C. 5669/2021 8 that be so, when it is found by the superior Court that the continued detention of the person who has been tendered pardon by virtue of Section 306(4)(b) Cr.P.C. is unnecessary, nothing fetters the Court from releasing such a person from detention or custody as the case may be to ensure that his personal liberty is not affected nor is he being detained unnecessarily and unjustifiably.” 11. Once a person is declared approver, his detention is done for the purpose of the personal security of the approver, to prevent mingling with the co-accused and other witnesses and get them influenced; keeping in mind such goals that it is held that the person if on bail shall not be detained in custody. But, at the same time, the learned Single Judge has opined that Section 306(4)(b) Cr.P.C. cannot be taken as an absolute prohibition or fetter on the inherent power of the High Court under Section 482 of the Cr.P.C. in appropriate cases to release the approver from detention on such conditions as the Court deems fit. 12. I am in respectful agreement with the observations made by the learned Judge. Moreover, the petitioner is reportedly a 68 year old person. It is not advisable to detain such a person in custody till the termination of the proceedings, the date of which is uncertain. 13. Secondly, as noticed earlier, there is no such absolute Crl.M.C. 5669/2021 9 prohibition, even though there are restrictions in the matter of granting bail. Here no one has a case that life and property of the petitioner are under threat. 14. Considering all these aspects, the age of the petitioner, the uncertainty of termination of the proceedings and also the gravity of the offence alleged against the accused persons, in my opinion, the condition imposed by the learned Magistrate that he should be detained in custody till the termination of the proceedings, cannot be approved. Therefore, that part of the order is quashed and subject to honouring of other conditions, he shall be released with a direction that he shall appear before the Investigating Officer/trial court as and when required. He shall not contact or deal in any manner with the co-accused and other witnesses in the charge sheet. Moreover, he shall not in any manner try to influence the witnesses or tamper with the evidence. With these directions, the petitioner shall be released forthwith. The Crl.M.C. is allowed as above. ## **Sd/-** **K.HARIPAL JUDGE** okb/20.12 //True copy// P.S. to Judge Crl.M.C. 5669/2021 10 ## **APPENDIX OF CRL.MC 5669/2021** |PETITIONER ANNEXURES|| |---|---| |Annexure A1|TRUE COPY OF FIR NO.2526 OF 2019 DATED| ||4.9.2019 OF VIZHINJAM POLICE STATION.| |Annexure A2|TRUE COPY OF THE CMP NO.4953 OF 2019 DATED| ||2.9.2019 ON THE FILES OF THE JUDICIAL FIRST| ||CLASS MAGISTRATE (TEMPORARY COURT),| ||NEYYATTINKARA.| |Annexure A3|TRUE COPY OF THE NOTICE DATED 28.10.2021| ||ISSUED BY THE CHIEF JUDICIAL MAGISTRATE| ||COURT, THIRUVANANTHAPURAM TO THE PETITIONER.| |Annexure A4|TRUE COPY OF THE PARDONING EXAMINATION OF THE| ||PETITIONER AS MANDATED UNDER SECTION 306 (4)| ||(A) RECORDED BY THE CHIEF JUDICIAL MAGISTRATE| ||COURT, THIRUVANANTHAPURAM IN CRIME NO.2526 OF| ||2019 DATED 12.11.2021.| |Annexure A5|TRUE COPY OF THE ORDER IN CMP NO.1017 OF 2021| ||IN CRIME NO.2526 OF 2019 DATED 12.11.2021| ||PASSED BY THE CHIEF JUDICIAL MAGISTRATE| ||COURT, THIRUVANANTHAPURAM.|