Reji v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ## **`WP(CRL.) NO. 286 OF 2022`** ## **`PETITIONER:`** ``` REJI., AGED 49 YEARS S/O. RAMAN, KELAMKULAM HOUSE, KELAM COLONY BHAGAM, ALAPURAM, ELANJI, KOOTHATTUKULAM, ERNAKULAM DISTRICT 686 665. ``` ``` BY ADVS. R.BINDU (SASTHAMANGALAM) G.RAJAGOPAL (KUMMANAM) C.THEJUS PURUSHOTHAMAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 001. 3THE SUPERINTENDENT OF POLICE, ERNAKULAM RURAL, ERNAKULAM, 683 101. 4THE SUB INSPECTOR OF POLICE, KOOTHATTUKULAM POLICE STATION, KOOTHATTUKULAM, ERNAKULAM DISTRICT 686 662. ``` ``` Adv M P Prashant-SrPP ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(CRL.) NO. 286 OF 2022 ``` ``` 2 ``` ## **`JUDGMENT`** The de facto complainant in Crime No.1028/2020 of Koothattukulam Police Station is the petitioner herein. The writ petition is filed by the petitioner with the following reliefs: - _“i) issue a writ of mandamus or any other appropriate writ, direction or order, handing over further investigation of Crime No.1028/2020 of Koothattukulam Police Station to the 3[rd] respondent or to any other superior officer and may direct him to conduct a proper further investigation into the above crime within a time frame to be fixed by this Hon’ble Court._ - _ii) to issue any other writ, direction or order as this Honourable Court may deem fit and proper in the facts and circumstances of this case.”_ 2. The offence, which is the subject matter of this case, occurred on 19.07.2020 at 3.30 p.m. The case of the petitioner is that the accused persons, ten in numbers, criminally trespassed into the petitioner's house and assaulted the petitioner, his father and his wife. Apart from the above, it is also his case that they have destroyed utensils and home appliances in the house. Ext.P1 is the First Information Statement given by the petitioner wherein all those aspects were mentioned. 3. The crime was registered for the offences under Sections 143, 144, 147, 294(b), 323, 451, 427 and 149 of the Indian ``` WP(CRL.) NO. 286 OF 2022 ``` ``` 3 ``` Penal Code. Later, upon completion of the investigation Ext., P2 final report was submitted by the Police. The learned counsel for the petitioner points out that, in the final report, conspicuously, the offences under Section 427 and 451 are not seen incorporated, even though there are proper ingredients for the said offences. This omission has prompted the petitioner to approach this Court by seeking the reliefs mentioned above. 4. Heard Smt.R.Bindhu Sasthamangalam, learned counsel for the petitioner and Sri. C.S. Hrithwik, learned Public Prosecutor appearing for the State. 5. The specific case of the learned counsel for the petitioner is that, in Ext.P1 First Information Statement and also in the statements of the witnesses recorded under Section 161 Cr. P.C, they have consistently narrated the incident, which would indicate the commission of the offences under Sections 427 as well as 451 of Indian Penal Code. The scene mahazar also indicates that the home appliances in the house were damaged by the acts of the accused persons. In such circumstances, it is pointed out that, despite their ``` WP(CRL.) NO. 286 OF 2022 ``` ``` 4 ``` being materials on record, the offences under Section 427 and 451 were not incorporated and the same is a serious lapse in the investigation. The prayers mentioned above are sought for in such circumstances. 6. On perusal of the records, I find some force in the contention put forward by the learned counsel for the petitioner. Ext.P1 First Information Statement contained a statement that, the accused persons have trespassed into the house of the petitioner and assaulted him and the other witnesses. They also caused damages to the utensils and other home appliances. The aforesaid statements are seen reiterated by the occurrence witnesses, and the same is fortified by the findings in the scene mahasar. Therefore, omission of the offences punishable under Sections 451 and 457 was not proper as there are sufficient materials prima facie indicating the aforesaid offences. 7. The learned counsel for the petitioner brought my attention to the decision rendered by this Court in **Hamza N.P. and Another v. State of Kerala and Another** [2021(2) KHC 351], ``` WP(CRL.) NO. 286 OF 2022 ``` ``` 5 ``` wherein the question altering the charges and circumstances under which such alteration can be made were discussed. In the said judgment, in paragraphs 16 and 17 it was observed as follows: _“16. The court can change or alter the charge if there is defect or something is left out. It can be done at any time before pronouncement of judgment. If the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge (Anant Prakash Sinha v. State of Haryana (2016 KHC 6209 : AIR 2016 SC 1197: 2016 (2) KHC SN 11:2016 (1) KLD 517:2016 (3) SCALE 107 : 2016 CriLJ 1836 : (2016) 6 SCC 105))_ _17. In P.Kartikalakshmi v Sri Ganesh (2017 KHC 2973: (2017) 3 SCC 347), it has been held that the power vested under Section 216(1) of the Code is exclusive to the Court and there is no right in any party to seek for addition or alteration of charge by filing any application as a matter of right. It was held that Section 216(1) of the Code is an enabling provision for the Court to exercise its power under certain contingencies which come to its notice or brought to its notice. It was made clear in this decision that, neither the de facto complainant nor the accused or for that matter the prosecution has any vested right to seek any addition or alteration of charge.”_ The aforesaid view was taken by this Court by relying upon the principles laid down by the Hon’ble Supreme Court **C.B.I. v. Karimullah Osan Khan** [AIR 2014 SC 2234]. 8. While considering the principles laid down by this Court and the Hon’ble Supreme Court in the decisions mentioned above, I am of the view that, this is a case in which the aforesaid principles ``` WP(CRL.) NO. 286 OF 2022 ``` ``` 6 ``` are to be made applicable. As mentioned above, there are sufficient materials prima facie indicating the ingredients of the offences mentioned above. Therefore, it is only proper that the grievances highlighted by the petitioner be considered by the learned Magistrate in this regard. Hence, I am of the view that, an opportunity can be granted to the petitioner to submit an application before the learned Magistrate to bring these aspects to the notice of the court to pass appropriate orders altering charges framed against the accused persons in accordance with the law. In the result, this writ petition is disposed of, permitting the petitioner to submit an application seeking alteration of the charges as contemplated under Section 216 of Cr.P.C. within three weeks from the date of receipt of a copy of this judgment. If any such application is submitted within the period mentioned above, the learned Magistrate shall consider the same and pass the appropriate order after hearing the accused persons as well. Further proceedings in the matter shall be kept in abeyance for a period of three weeks from the date of receipt of copy of this judgment, and if the ``` WP(CRL.) NO. 286 OF 2022 ``` ``` 7 ``` petitioner submits an application as mentioned above, the proceedings shall be kept in abeyance until a decision is taken on such application by the learned Magistrate. It is made clear that the observation made in this judgment was only to find out a prima facie case, and under no circumstances it is intended to interfere with the power of the learned Magistrate to take a decision by invoking the powers under section 216 of Cr.P.C. While considering an application as mentioned above, the learned Magistrate shall take a decision untrammelled by the observations contained in this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` 8 ``` ## **`WP(CRL.) NO. 286 OF 2022`** ## **`APPENDIX OF WP(CRL.) 286/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE FIRST INFORMATION REPORT DATED 20.07.2020. Exhibit P2TRUE COPY OF THE FINAL REPORT IN CRIME NO. 1028/2020 OF KOOTHATTUKULAM POLICE STATION, DATED 15.10.2020. Exhibit P3TRUE COPY OF THE FINAL REPORT CRIME NO. 1029/2020 OF KOOTHATTUKULAM POLICE STATION, DATED 15.10.2020. ```