High Court of KeralaSingle Judge2020-02-06Crl.M.C. disposed of; petitioners allowed liber...

Noushad and others v. State of Kerala

Case / Petition Number:Crl.M.C.No.4726 of 2019(A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Ashok Menon
Judgment Date: 2020-02-06
Court Decision / Holding: The Crl.M.C. is disposed of with liberty to the petitioners to raise issues before the trial court at the time of framing the charge; the petition is not quashed and the proceedings continue.
Final Disposition: Crl.M.C. disposed of; petitioners allowed liberty to raise issues at charge-framing stage.

Parties to the Case

Appellants / Petitioners

NOURSHAD
NISSAM
SHAJAHAN
ASKARSHA
SHIHABUDEEN
SHEBIN KABEER
SHAMEER
HASHIM
SHYAM POULOSE
MUHAMMED ANSARI
ADARSH
SHAHUDEEN
SIYAD
JOHN PAUL
JIJO
SHIYAS
RIYAS

Respondents

State of Kerala, represented by the Public Prosecutor, High Court of Kerala, Ernakulam, PIN-682031

Legal Representation & Advocates

Counsels for Petitioners

• Sri Zubair Pulikkoool

Counsels for Respondents

• Sri Ramesh Chand, Public Prosecutor

Case Synopsis & Summary

This is a Kerala High Court criminal miscellaneous case (Crl.M.C.No.4726 of 2019) filed by 17 accused challenging the inclusion of Section 307 IPC in the final report for Crime No.748/2017 (Sasthamcotta Police Station), which is pending as S.C.No.1278/2019 before the Assistant District & Sessions Court, Karunagappally. The petition contends that the FIR initially did not include Section 307; it was added later during investigation ostensibly to harass the petitioners since the defacto complainant is a Sub-Inspector of police. The accused argue the injuries are minor and do not establish an attempt to commit murder; they also refer to a Supreme Court decision (cited as Champa Lal Dhakar v. Naval Singh Rajput & others, 2019 KHC 6005) to support that if prima facie there is no case under Section 307, the charge would not lie. The court notes the obstructive step of attempting to cancel bail after filing the report, but ultimately distinguishes the cited authority on the facts. It records that the matter involves an alleged call to kill the injured, and that the trial court must determine the sufficiency of the charges at the time of framing. The petition is disposed of with liberty for the parties to raise issues at the framing stage; the court thus declines to quash or alter the proceedings at this stage.

Provisions of Law Cited

Section 143 IPCSection 147 IPCSection 148 IPCSection 294(b) IPCSection 341 IPCSection 323 IPCSection 324 IPCSection 353 IPCSection 332 IPCSection 307 IPCSection 149 IPCSection 3(1) of the Prevention of Damage to Public Property Act

Legal Doctrines & Maxims

Prima facie test for Section 307 IPC (as cited from Champa Lal Dhakar v. Naval Singh Rajput & others)
Liberty to raise issues before the trial court at the time of framing of the charge

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that Section 307 was added later during investigation to harass them; initially the FIR did not include Section 307. The injuries are minor, and there is no prima facie case of murder; reliance is placed on Champa Lal Dhakar v. Naval Singh Rajput & others (2019 KHC 6005) which suggests that if there is no prima facie case under Section 307, the charge would not lie. The JFC Magistrate’s bail cancellation attempt and the sequence of events are highlighted; petitioners ask the court to quash the inclusion or refrain from proceeding under Sec. 307 until framing of charges. The court is urged to exercise caution and consider the prima facie evidence before framing charges.

Contentions of Respondents

The State contends there was a clear call by the accused to kill the defacto complainant, and the injury to the Sub-Inspector supports a possible attempt to murder; hence the charge under Section 307 should be considered. The matter requires adjudication by the trial court and the framing of charges, not dismissal at this stage. The respondents rely on the facts of the FIR and the investigation, noting that the prosecution will prove the required mens rea and actus reus if the case proceeds to trial.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Champa Lal Dhakar v. Naval Singh Rajput & others	2019 KHC 6005	Distinguished	Cited to support the prima facie test for Sec. 307 but distinguished on the facts of this case.

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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 ASHOK MENON** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** ## **Crl.MC.No.4726 OF 2019(A)** **AGAINST THE ORDER/JUDGMENT IN CP 10/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA** **CRIME NO.748/2017 OF Sasthamcotta Police Station, Kollam** ## **PETITIONERS/ACCUSED 1 TO 17:** - **1 NOUSHAD, AGED 45 YEARS, S/O. ISMAILKUTTY, THUNDIL HOUSE, PALLISSERIKKAL MURI, SASTHAMCOTTA VILLAGE.** - **2 NISSAM, AGED 44 YEARS, S/O. YOONUSKUNJ, MODEENTE VADAKKATHIL VEEDU, PALLISSERIKKAL MURI, SASTHAMCOTTA VILLAGE.** - **3 SHAJAHAN, AGED 51 YEARS, S/O. YOONUSKUNJU, CHAMATHUNDIL HOUSE, VENGA MURI, MYNAGAPPALLY VILLAGE.** - **4 ASKARSHA, AGED 29 YEARS, S/O. SHIHABDUEEN, THAIKKAVIL HOUSE, PALLISSERIKKAL MURI, SASTHAMKOTTA VILLAGE.** - **5 SHIHABUDEEN, AGED 41 YEARS, S/O. ABDUL RASHEED, MULLAPPALLIYIL HOUSE, PALLISSERIKKAL MURI, SASTHAMCOTTA VILLAGE.** - **6 SHEBIN KABEER, AGED 33 YEARS, S/O. KABEER, CHARINJAVILAKIZHAKK PUTHEN VEEDU, AAYIKKUNNAM, SOORANAD VILLAGE.** _Crl.M.C.No.4726 of 2019_ 2 - **7 SHAMEER,** - **AGED 27 YEARS, S/O ISMAILKUTTY, CHAMATHUNDIL HOSUE, VENGA MURI, MYNAGAPPALLY VILLAGE.** - **8 HASHIM, AGED 26 YEARS, S/O. SULAIMAN, CHARUVILA HOUSE, MUTHUPILAKKAD MURI, SASTHAMCOTTA VILLAGE.** - **9 SHYAM POULOSE, AGED 22 YEARS, S/O. POULOSE, USHUS HOUSE, RAJAGIRI, MANAKKRA MURI, SASTHAMCOTTA VILLAGE.** - **10 MUHAMMED ANSARI, AGED 24 YEARS, S/O. ALIYARUKUNJU, DARULSALAM HOUSE, PALLISSERIKKAL MURI, SASTHAMCOTTA VILLAGE.** - **11 ADARSH, AGED 22 YEARS, S/O RADHAKRISHNAN NAIR, 'ASWATHY' HOUSE, KIDANGAYAM VADAKKU MURI, SOORANAD VILLAGE.** - **12 SHAHUDEEN, AGED 49 YEARS, S/O. ABOOBACKER KUTTY, BHARANIKKATTAYYATH HOUSUE, PALLISSERIKKAL MURI, SASTHAMCOTTA VILLAGE.** - **13 SIYAD, AGED 30 YEARS, S/O. HANEEF KUNJ, KAVILAYIL HOUSE, JAYANTHI COLONY, EDAVANASSERI MURI, MYNAGAPPALLY VILLAGE.** - **14 JOHN PAUL, AGED 39 YEARS, S/O. THOMAS, KADAMBATT HOUSE, MANAKKARA MURI, SASTHAMCOTTA VILLAGE.** - **15 JIJO, S/O. SAJEENDRAN, JIJO BHAVAN, MUTHUPILAKKAD WEST MURI, SASTHAMCOTTA VILLAGE.** **16 SHIYAS, AGED 28 YEARS, S/O. SULAIMAN, CHARUVILA HOUSE, PORUVAZHI P.O., MUTHUPILAKKAD MURI, SASTHAMCOTTA VILLAGE.** _Crl.M.C.No.4726 of 2019_ 3 **17 RIYAS, AGED 30 YEARS, S/O. RAHIM, DARUL SALAM, NEAR CENEMAPARAMB, PANAPPETTY MURI, SASTHAMCOTTA VILLAGE.** ## **BY ADV. SRI.ZUBAIR PULIKKOOL** ## **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.** ## **OTHER PRESENT:** **SRI. RAMESH CHAND, PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _Crl.M.C.No.4726 of 2019_ 4 ## **O R D E R** ## **Dated this the 6th day of February 2020** The petitioners are accused in Crime No.748/2017 of Sasthamcotta Police Station, which was committed for trial by the Judicial First Class Magistrate Court, Sasthamcotta in C.P.No.10/2019 and is presently pending as S.C.No.1278/2019 on the files of the Assistant District & Sessions Court, Karunagappally, for having allegedly committed the offences punishable under Sections 143, 147, 148, 294(b), 341, 323, 324, 353, 332 and 307 read with Section 149 of the I.P.C. and Section 3(1) of the Prevention of Damage to Public Property Act. 2. The petitioners would contend that initially the F.I.R. was registered excluding Section 307 of I.P.C., but subsequently during the investigation, a report was filed to include Section 307 as well, mainly for the reason that the defacto complainantinjured is a Sub Inspector of Police, and that it is _Crl.M.C.No.4726 of 2019_ 5 with an intention to harass the petitioners that Section 307 of I.P.C. has also been included. The injuries are minor and the injuries would not indicate that an offence under Section 307 has been committed. Moreover, it is also pertinent to note that soon after filing of the report to include Section 307 of I.P.C., the investigating officer had filed an application before the jurisdictional Magistrate for cancellation of the bail that was granted to the petitioners. But the jurisdictional Magistrate vide Annexure 2 order dismissed that application, C.M.P.No.370/2017, for cancellation of the bail stating that there is no violation of the bail conditions, which enables the Magistrate to cancel the bail. Consequent to that, the investigation was completed and final report at Annexure 3 was filed before the jurisdictional Magistrate and the matter was committed for trial. 3. A reading of the F.I.Statement would indicate that there was a call among the accused to kill the injured-defacto complainant and it is in consequence _Crl.M.C.No.4726 of 2019_ 6 of that the defacto complainant was hit with a flag stick on his head. The learned Counsel for the petitioners would state that hitting the defacto complainant-injured with a flag stick on his head is not sufficient to cause death and therefore it cannot be stated that an offence of attempted murder has been committed by the petitioners. 4. The learned Counsel also would rely on a decision of the Hon'ble Supreme Court in _**Champa Lal**_ ## _**Dhakar v. Naval Singh Rajput & others, 2019 KHC 6005**_ , wherein it is stated that if _prima facie_ there is no case made out under Section 307, the charge under Section 307 would not lie. Going through the F.I.Statement, I find that this can be distinguished, because there is a very clear statement among the accused asking the defacto complainant to be killed and it is in consequence of that the stick was used to attack the defacto complainant, particularly on his head. Whether the act of the accused was sufficient to kill the defacto complainant and whether there was actually an _Crl.M.C.No.4726 of 2019_ 7 intention to commit murder are all matters to be considered by the trial Court. The petitioners are at liberty to raise these issues before the trial court even at the time of framing of the charge. With that liberty, the Crl.M.C. is disposed of. **Sd/-** _dkr_ ## **ASHOK MENON** **JUDGE** _Crl.M.C.No.4726 of 2019_ 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 CERTIFIED COPY OF THE FIR WITH FI STATEMENT IN CRIME NO.748/2016 OF SASTHAMCOTTA POLICE STATION. ANNEXURE 2 COPY OF THE ORDER DATED 11.4.2017 IN CMP 370/2017 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS (TEMPORARY), SASTHAMCOTTAH. ANNEXURE 3 CERTIFIED COPY OF THE FINAL REPROT IN CRIME NO.748/2017 OF SASTHAMCOTTA POLICE STATION. ANNEXURE 4 COPY OF THE ORDER DATED 18.4.2017 IN BA.NO.2621/2017 OF THE HIGH COURT.**