Noushad v. State of Kerala

Crl.R.P.No.923/2014 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY THE 17TH FEBRUARY 2021 / 28TH MAGHA, 1942** **Crl.Rev.Pet.No.923 OF 2014** **AGAINST THE ORDER/JUDGMENT IN SC 365/2012 DATED 23-04-2014 OF II ADDITIONAL SESSIONS JUDGE ,KOLLAM** ## **REVISION PETITIONER/ADDITIONAL ACCUSED:** **NOUSHAD, THENGAZHIKATHU VEEDU, NEAR PALLIMUKKU, MANAKADU CHERRY, VADAKKEVILA, KOLLAM DISTRICT.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.ANOOP.V.NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** - **2 THE CIRCLE INSPECTOR OF POLICE KOLLAM EAST POLICE STATION, KOLLAM - 691 001.** - **3 SOBHA, AGED 37 YEARS, D/O SUBHADRA PULINTHANATH THEKETHIL, SURABHI NAGAR-26, PATTATHANAM, VADAKEVILA P O,VADAKEVILA VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT IMPLEADED AS ADDL. 3RD RESPONDENT AS PER ORDER DTD.21.01.2021 IN CRL.MA.NO.2558/2016 IN CRL.RP.NO.923/2014** - **R1 BY ADV. SRI.HARIDAS P.NAIR R1 BY ADV. SRI.KRISHNADAS P. NAIR R1 BY ADV. SRI.M.RAJESH KUMAR R1 BY ADV. SMT.K.L.SREEKALA R1 BY ADV. SMT.B.SABITHA DESOM** Crl.R.P.No.923/2014 2 **R3 BY ADV. SRI.P.VIJAYA BHANU SR. R1 BY ADV. SRI.M.A.VINOD R1-2 BY ADGP SURESH BABU R3 BY SRI.KRISHNADAS P.NAIR, CGC** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-01-2021, THE COURT ON 17-02-2021 PASSED THE FOLLOWING:** Crl.R.P.No.923/2014 3 ## **O R D E R** ## **Dated this the 17[th] day of February 2021** The revision petitioner challenges the order in Crl.M.P.233/2013 in SC No.365/2012 of the II Additional Sessions Court, Kollam, by which the sessions Judge, invoking Section 319 of Cr.P.C. added the revision petitioner herein along with another person as accused and, issued summons, calling upon them to face the trial. 2. The facts leading to the case, as is discernible from the records, is as follows; One Vijayakumar who was later examined as PW1, laid FIS on 24/11/1997 before the East Police, kollam, alleging that on that day at about 8.45 pm, while he was proceeding on a cycle with one Santhosh , they were attacked by a group of assailants who came in an Ambasador car. It was stated that, they were carrying sword and iron rods. Santhosh was greviously injured with the sword and he died on the spot. Petitioner, the first informant, also sustained injuries and he escaped from the spot. According to him eight persons came in the car out of which, he named six, which included member Ani and member Noushad. He could not mention the name of two other identifiable persons. Member Noushad, admittedly referred to the revision petitioner who was a member of the local body during the relevant time. 3, FIS was registered as Crime 1094/1997 for offences punishable Crl.R.P.No.923/2014 4 under sections 143,147,148,324,302 read with section 129 IPC. Member Ani and member Noushad were arrayed as accused Nos. 5 and 6 respectively in the first information statement. In the course of investigation, the first informant gave section 161 Cr.P.C.statement that he referred to the name of member Ani and member Noushad on the basis of an assumption that they had participated in the attack. He further stated that the above persons were not involved. On the basis of it, final report was laid against seven persons excluding member Ani and member Noushad. Cognizance was taken and summons was issued to the accused in SC No.770/2002 for offences punishable under sections 143,147,148,324 302 read with section 149 IPC against seven persons. In the course of proceedings accused Nos. 2 and 7 absconded and remaining accused faced the trial. At the end of trial, accused 1,3,4 and 6 were found guilty of offences under section 302 IPC and they were convicted and sentenced to undergo imprisonment for life. 4. Thereafter, second accused surrendered and trial was ordered against him in SC No.365/2012. In the course of trial, the first informant -PW1 deposed about the presence of the revision petitioner and member Ani and that they came along with other accused in the car. He also asserted that ,the revision petitioner had instigated others to attack PW1. On the basis of the above version of PW1, an application was filed by the public prosecutor for invoking section 319 Cr.P.C.and to add the revision petitioner and member Ani as accused. By order dated 23/4/2014, the learned Sessions Judge added both the persons as accused invoking section 319 Crl.R.P.No.923/2014 5 Cr.P.C. Summons were ordered to them. Revision petitioner herein challenged that order in Crl.R.P.No.923/2014. It was allowed and the matter was remanded for a fresh consideration in the light of the Constitution Bench decision of the Supreme Court in **Hardeep Singh v. State of Punjab [2014 1 KLT 336 (SC)]** . After the remand, by Annexure 4 order, the court arrived at the same conclusion and ordered summons to Ani and Noushad. This is challenged by Noushad in this revision petition. Pending the revision, the wife of the deceased got herself impleaded by order in Crl.M.A.2557/2016 on the basis that she was the wife of the deceased and thereby, and has substantial stake in the outcome of the litigation. 5. Heard the learned senior counsel for the revision petitioner, learned Additional Director of prosecution and the learned senior counsel for the third respondent, the wife of the victim. 6. The learned senior counsel for the revision petitioner contended that, Section 319 of Cr.P.C was invoked by the Sessions Judge on the basis of the singular evidence of PW1, who, in his chief examination referred to the alleged presence of the revision petitioner at the spot. Other witnesses had not been examined at that time. Hence, it was contended that, arraying one person as accused on the solitary evidence of one witness alone, unless there is some corroboration or confirmation,would be contrary to the law settled by the Constitution Bench in Hardeep Singh's case. Another contention was that, PW1, the first informant, had referred to the presence of the revision petitioner and member Ani in FIS but in section 161 Crl.R.P.No.923/2014 6 Cr.P.C.statement ,he gave a specific statement that Ani and Noushad were referred to on a misconception. In the above circumstances, both the above persons were excluded from the array of accused and the final report laid. This become final in the absence of any challenge. It was also contended that, PW1 was examined earlier in SC No.770/2002 and he had given almost similar statement. It was contended that, neither the prosecution nor the Sessions Judge at the time of trial in SC No. 770/2002, on the basis of similar statement made by PW1, did not deem it fit to issue summons to the revision petitioner and Ani invoking section 319 Cr.P.C. It was further contended that, there were material evidences to show that, before laying the FIS, the defacto complainant had met the local leaders and hence, the possibility of a false implication of innocent prominent leaders could not be ruled out. It was also contended that, during the earlier trial PW1 was examined at length and in the new trial PW1 knew the loopholes and the weakness of the prosecution case and the defence of the accused. In the above circumstances, the possibility of PW1 giving an embellishment or improved versions in the second trial could not be ruled out. Evidently, that may prejudice the interest of the revision petitioner, it was argued. It was further contended that the only allegation against the revision petitioner was that he had shouted that “kill him”. According to PW1, such an utterance was made, aiming at him. It was stated that after that utterance, no further overtact was committed by any of the assailants. Evidently, there was nothing on record to show that the petitioner shared any common intention or Crl.R.P.No.923/2014 7 common object with the other accused. It was also contended that there was no evidence to show, when the unlawful assembly began and when the unlawful assembly came to an end. In the light of the above contentions, it was contended by the learned senior counsel for the revision petitioner that, the impugned order was not legally sustainable and was liable to be set aside. 7. Before going into the legal proposition advanced, it is essential to refer to the versions spoken by PW1. In the chief examination, PW1 had stated that few persons whose names were specifically referred by him, got out of the car and they attacked the victim. It was stated that the other remaining accused also slashed on the body of the deceased. At that time, one Santhosh hit the defacto complainant with a stick. Member Noushad shouted to “kill him”. According to PW1, it referred to him. It seems that, there is no specific indication as to whom the revision petitioner meant. This needs a clarification in the evidence which is not available. Thereafter, in the cross examination,he was specifically asked whether he had given a statement to the police that he gave First Information statement under a misconception that Noushad and member Ani were there **.** When he was confronted with his statement under section 161Cr.P.C,which was read over to him he denied the suggestion. This contradiction was marked as Ext.D1. Evidently, this deposition of PW1 is liable to be confirmed . It seems that, the court below ignoring these facts,invoked section 319 Cr.P.C, prematurely on the basis of the evidence tendered by PW1. The learned senior counsel Crl.R.P.No.923/2014 8 referred to a catena of decisions to establish the grounds on which,and the circumstances under which, Section 319 Cr.P.C.can be invoked. 8. To substantiate the contentions, learned counsel referred to the decision in **Michael Machado and another v. Central Bureau of Investigation and another** ( **AIR 2000 SC 1127)** . It was held that, invoking power under section 319 Cr.P..C, addition of person as co -accused at belated stage after cross examination of 54 witnesses and at the cost of de novo trial was not justified. In **Krishnappa v. State of Karnataka (2004) 7 SCC 792)** wherein on merits, it was held that there was some substance in the contentions set up by the accused. In **Brindaban Das and Others v. State of West Bengal 2009 (1) KLT Suppl. 621 (SC )** it was held that. there must be substantive evidence against a person in order to summon him for trial, although he was not named in the charge sheet or has been discharged from the case which would warrant his prosecution thereafter, with a good chance of conviction. In **Brejendra Singh and others v. State of Rajasthan** ( **2017 KHC 6361)** , it was held that power under section 319 Cr.P.C. was a discretionary and an extraordinary power which has to be exercised sparingly and only in those cases where the circumstances of the case, so warrant. It was not to be exercised because the Magistrate or the Sessions Judge was of the opinion that some other persons may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court, that such power should be exercised and not in a casual and cavalier Crl.R.P.No.923/2014 9 manner. In **Sunilkumar Gupta and others v. State of Uttar Pradesh and Others (2019 KHC 6244)** identical question came up before the Supreme Court under Section 319 Cr.P.C. It was held that, for summoning an accused under Section 319 Cr.P.C. it requires much stronger evidence than mere probability of his complicity. In **Rajesh and others v. State of Haryana (2019 KHC 6523)** it was reiterated that, the power under Section 319 Cr.P.C. can be exercised on the basis of statement made in the examination in chief of the witness concerned and the court need not wait till the cross examination of such a witness is done. It was held that, from the statement on record, it should appear that such a person can be tried. 9. The Constitution Bench in Hardeep Singh's case(cited supra) after elaborate consideration of all the judgments involved, considered the scope of section 319 Cr.P.C. and the quality of materials required for invoking the provision under section 319 Cr.P.C. It was held that under section 319 Cr.P.C.. though the test of prima face case was the same, the degree of satisfaction that was required was much stricter . It was held that the Court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. It was held that test to be applied was one which must be more than prima facie case, as exercised at the time of framing charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. 10. Applying the above para meters laid down by the various decisions, especially the Constitution Bench decision in Hardeep Singh's case, it is Crl.R.P.No.923/2014 10 evident that slightly higher degree of evidence is required to invoke Section 319 Cr.P.C. It is true that in the present case, PW1 had given a statement that the revision petitioner was present at the time of incident. However, he had version that before the incident when they had started from a coffee shop, he saw member Noushad and Member Ani talking to another accused. While they were proceeding on a motor cycle they were hit from behind an ambassador car and when they fell down, both of them were attacked. The deceased was hacked to death. Thereafter, he mentioned that the revision petitioner instigated others to attack referring to himself. To a specific question in the chief examination as to how did the revision petitioner reach the spot, his answer was that the revision petitioner was there in the car along with the other accused. It is pertinent to note that, in the cross examination it was brought out that, the PW1 had given a statement under section 161 Cr.P.C. that he had referred to the names of member Ani and member Noushad on a misconception. Thereupon, detailed investigation was conducted and the revision petitioner and member Ani were not arrayed as accused in the final report. They were not called upon to face the first trial. Even when PW1 was examined in the first round of trial, neither the court nor the prosecution deem it fit and proper on the same materials to issue summons. On the very same version given by PW1 in the subsequent trial, summons was ordered. There is considerable force in the contention of the learned senior counsel that, at the second trial PW1 had known about the defence likely to be set up by the accused and also he was able to plug the Crl.R.P.No.923/2014 11 ## loopholes in the prosecution case. 11. Having evaluated the entire fact, I feel that there was no sufficient material to reach the quality prescribed by the Constitution Bench of the Supreme Court. Having applied the law on the facts, I find that the exercise of jurisdiction of the court below was not based on the sufficient materials. Having considered this, I am inclined to interfere in the impugned order and it is liable to be set aside. In the result, the revision is allowed . The impugned order is set aside . The court below is directed to proceed with the trial as against the remaining accused. The revision is accordingly allowed. **Sd/-** ## **SUNIL THOMAS** **JUDGE** ## **dpk**