High Court of KeralaSingle Judge2013-08-16Revision petition disposed of; order modified a...

K.K. Sameeran v. Excise Inspector, Mallappally & State of Kerala

Case / Petition Number:Crl.Rev.Pet.No.1605 of 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2013-08-16
Court Decision / Holding: This revision petition is disposed of. The impugned order is modified: the trial court shall not recall all witnesses; recall shall be limited to those necessary to address the altered charge, and only if the parties desire to recall. The court shall afford opportunity to address on the limited scope of the altered charge; if the parties do not wish to recall any witnesses, judgment may be pronounced forthwith. Parties are precluded from raising prejudice based on altered charge if they opt not to recall witnesses.
Final Disposition: Revision petition disposed of; order modified accordingly.

Parties to the Case

Appellants / Petitioners

K.K. SAMEERAN

Respondents

EXCISE INSPECTOR, EXCISE RANGE OFFICE, MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN - 689 584
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAIULAM - 682 031.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V. Sethunath
• Sri. S. Justus

Counsels for Respondents

• Sri. Liju V. Stephen

Case Synopsis & Summary

The Kerala High Court heard Crl.Rev.Pet.No.1605 of 2013, filed by K.K. Sameeran, challenging an order in S.C.No.318/2010 of the Additional Sessions Court (Ad hoc), Fast Track Court No.1, Pathanamthitta. The accused was charged under Section 55(a) of the Kerala Abkari Act after excise authorities found 420 litres of illicit spirit at his residence on 23 April 2007. After the evidence stage and defence proceedings, on 28 June 2013 the trial judge unexpectedly reframed the charge from Section 55(a) to Section 58 of the Abkari Act and recalled witnesses. The revision petition argued that such late reframing prejudices the defence and that, in light of Jose v. State of Kerala, the two offences are sufficiently similar that conviction for the later offence could be entered without a retrial. The court considered whether reframing and retrial are necessary under Sections 216, 221 and 464 of the Cr.P.C., and whether Sections 221(1) and (2), and 464(1) permit conviction for a different offence shown in evidence. It found that, although there is authority to convict for a different offence without retrial when appropriate, the altered charge in this case was improper because it required recalling all witnesses suo motu. The judge directed that recalls be limited, and that both sides be given opportunity to address on the altered charge. If parties choose not to recall witnesses, judgment may be pronounced forthwith. The petition was disposed of by modifying the order accordingly.

Provisions of Law Cited

Kerala Abkari Act Sec.55(a)Kerala Abkari Act Sec.58Cr.P.C. Sec.313Cr.P.C. Sec.216Cr.P.C. Sec.217Cr.P.C. Sec.221Cr.P.C. Sec.464

Legal Doctrines & Maxims

Difference between Sec.55(a) and Sec.58 under the Abkari Act (knowledge element) as per Jose v. State of Kerala (2007 (2) KLT 202)
Cr.P.C. Ss.216, 221, 464 enabling conviction for a different offense shown by evidence; Sec.221(1)-(2) and Sec.464(1)
Right to address on altered charge under Cr.P.C. Sec.217; limited recall principle to avoid prejudice

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that reframing of the charge from Sec.55(a) to Sec.58 after evidence has been recorded is inherently prejudicial and inconsistent with fair trial. He relies on Jose v. State of Kerala to argue Secs. 55(a) and 58 are substantially similar offences and a conviction for the latter could be entered without a fresh trial. The court also relied on Cr.P.C. Ss.216, 221 and 464 to support the proposition that a different offence may be convicted if the evidence supports it, but the alteration here was effected during trial and without proper notice or hearing, thus requiring retrial or at least a limited re-examination. The petitioner seeks that the charge not be altered so as to avoid prejudice; if any alteration is permitted, it should be applied with caution, with opportunity to address on the altered charge.

Contentions of Respondents

The respondents contended that the alteration of the charge was legally permissible to reflect the correct offence and that the trial record had already demonstrated the elements. They argued that the prosecution was prepared to proceed under the revised charge and that any prejudice could be avoided by ensuring opportunity to address on the altered charge and by recalling witnesses as permitted under Cr.P.C. provisions.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jose v. State of Kerala	2007 (2) KLT 202	Positive	Used to analyse whether Secs. 55(a) and 58 of the Abkari Act are similar and whether conviction on Sec.58 without retrial is permissible; supports the proposition that knowledge element differentiates the two offences and that interchangeability may be allowed under Cr.P.C. when appropriate.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA,** **Crl.Rev.Pet.No. 1605 of 2013 () --------------------------------** **AGAINST THE ORDER IN SC 318/2010 of ADDITIONAL SESSIONS COURT (ADHOC),FAST TRACK COURT NO.1, PATHANAMTHITTA DATED 28-06-2013** **REVISION PETITIONER(S)/1ST ACCUSED: -----------------------------------** **K.K.SAMEERAN, AGED 62, S/O.K.M.KUMARAN, ANJU SADANAM HOUSE, ANJILITHANAM MURI, KUNNAMTHANAM VILLAGE, MALLAPPALY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.V.SETHUNATH SRI.S.JUSTUS** **RESPONDEDNTS/RESPONDENT/COMPLAINANT: ------------------------------------** **1. EXCISE INSPECTOR, EXCISE RANGE OFFICE, MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN - 689 584** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAIULAM - 682 031.** **BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **PETITIONER'S EXHIBITS:** **ANNEXURE-1 - ORDER IN S.C.NO.318/2010 ON THE COURT OF THE ADDITIONAL SESSIONS JUDGE, (AD HOC), FAST TRACK COURT NO.1, PATHANAMTHITTA.** **ANNEXURE-2 - THE CERTIFIED COPY OF THE FINAL REPORT IN EXCISE CR.NO.12/2007 ON THE ADDITIONAL SESSIONS JUDGE, (AD HOC), FAST TRACK COURT NO.1, PATHANAMTHITTA.** **ANNEXURE-3 - THE CERTIFIED COPY OF THE DEPOSITION OF P.WS.1 TO 5 IN IN S.C.NO.318/2010 ON THE COURT OF THE ADDITIONAL SESSIONS JUDGE, (AD HOC), FAST TRACK COURT NO.1, PATHANAMTHITTA.** ## //true copy// P.S. to Judge **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.1605 of 2013 -----------------------------------------------------Dated this the 16[th] day of August, 2013** ## **ORDER** The revision petitioner is the 1[st] accused in S.C.No.318/10 on the files of the Additional District & Sessions (Ad-hoc) Fast Track Court-I, Pathanamthitta. He has been charged sheeted alleging the offence punishable under Sec.55(a) of the Kerala Abkari Act (for short 'the Act'). 2. The prosecution case is that on 23/4/2007 at 12.15 p.m. the Excise party found 420 litres of spirit in the house of the revision petitioner and thereby committed the offence punishable under Sec.55(a) of the Act. The charge was read over for the offence under Sec.55(a) of the Act and the prosecution witnesses were examined as P.Ws.1 to 6. **Crl.R.P. No.1605 of 2013** -: 2 :- Two witnesses were also examined on the side of defence. The revision petitioner was questioned under Sec.313 of the Code of Criminal Procedure. After finishing the defence evidence, arguments for the prosecution and defence were completed and on 28/6/2013, the case was posted for judgment. 3. But unexpectedly, on that day, the impugned order was passed, whereby the charge was re-framed for the offence under Sec.58 of the Act in lieu of the offence under Sec.55(a) of the Act. The fresh charge under Sec.58 of the Act was also read over and the accused pleaded not guilty. Then the learned Sessions Judge passed an order recalling the witnesses also. The said order is under challenge in this revision petition. 4. The learned counsel for the revision petitioner submits that the accused is too much prejudiced by the reframing of the charge for the offence under Sec.58 of the Act. Evidence was adduced by the prosecution and the defence. Re-framing of the charge, after the disclosure of the entire evidence, will cause prejudice to him. The **Crl.R.P. No.1605 of 2013** -: 3 :- learned counsel for the revision petitioner cited the decision reported in **Jose v. State of Kerala** (2007 (2) KLT 202) and argued that the offences under Sec.55(a) and 58 of the Abkari Act are similar offences having only slight differences and in the light of the above decision conviction can be entered interchangeably without a re-trial. This is the contention mainly raised in this revision petition. 5. In view of the above contention, the short question that arises for consideration is whether re-framing of the charge under Sec.58 of the Act and re-trial thereunder are necessary in lieu of charge under Sec.55(a) of the Act for a proper conviction under Sec.58 of the Abkari Act? This Court had an opportunity to consider this question under the Abkari Act in the decision reported in **Jose v. State of Kerala** (2007 (2) KLT 202). In the above decision, this Court analysed the offences under Secs.55(a), 58 and 8(1) and (2) of the Act and found that the only difference or distinction between Secs.55(a) and 58 of the Act is that the element of knowledge is also required for conviction under Sec.58 of the Act. The considered question is whether **Crl.R.P. No.1605 of 2013** -: 4 :- conviction can be altered interchangeably under Sec.55(a), 58 and 8(1) of the Act after trial without a re-trial and before the pronouncement of the judgment. This question was considered in view of Secs.216, 221 and 464 of the Code of Criminal Procedure. Relying on Secs.221(2) and 216(2) of the Cr.P.C., the court found that if, in such a case, accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of subsections (1) and (2) of Sec.221 of the Cr.P.C., he may be convicted of the offence which he is shown to have committed, although he was not charged with it. In view of that decision, it can be held that an accused, who faced trial for a charge under Sec.55(a) of the Act, can be convicted for Sec.58 of the Act without a rte-trial, in view of Secs.221 (1) and (2) and 464(1) of the Cr.P.C. But in this case now the charge stands altered. 6. Going by the impugned judgment, it could be seen that the learned Sessions Judge with abundant caution so as to make sure that no prejudice shall be caused to the **Crl.R.P. No.1605 of 2013** -: 5 :- accused by the alteration of the charge, suo motu recalled all the witnesses who had been examined earlier. I am of the opinion that the learned Sessions Judge ought not have recalled all witnesses suo motu. Going by Sec.217 of the Cr.P.C., whenever a charge is altered or added to by the court after the commencement of the trial, the Prosecutor and the accused shall be allowed to recall and examine with reference to such alteration or addition of any witness who may have been examined if either the prosecution or the defence desirous to recall or re-examine such witnesses to examine with reference to such alteration or addition. Here, the accused himself challenged the recalling of the witnesses by filing this revision petition. So, it can be presumed that the revision petitioner is not desirous of recalling and examining the witnesses who have been examined earlier with reference to such alteration or addition. 7. However, in the instant case, now the charge is altered from Sec.55(a) to Sec.58 of the Abkari Act. So, the further proceedings must be in accordance with Sec.217 of **Crl.R.P. No.1605 of 2013** -: 6 :- the Cr.P.C. The learned counsel further submits that after the alteration of the charge, no opportunity had been given to the accused to address on the altered charge. The learned Sessions Judge altered the charge and recalled all the witnesses without affording an opportunity of being heard with reference to the altered charge. In view of the above submission and having regard to the facts and circumstances of the case, I am of the opinion that all witnesses need not be recalled and examined suo motu and an opportunity shall be given to the accused as well as the Prosecutor and to address with reference to the alteration of the charge to the limited question. Do the parties want to examine any of the witnesses? and if the parties are desirous of recalling and re-examining any of the witnesses with reference to such alteration, that witnesses alone need be called and examined. Therefore, the learned Sessions Judge is directed to give an opportunity to address to the above limited question and proceed in accordance with the stand which they will take at that time. If the parties are not desirous of re-examining any of the witnesses, judgment **Crl.R.P. No.1605 of 2013** -: 7 :- can be pronounced forthwith. It is also made clear that if the party is not desirous of recalling and re-examining the witnesses, they will be precluded from raising the contention that alteration of charge prejudiced their rights. The impugned order is modified to that extent. This revision petition is disposed of accordingly. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge