Salin C. Narayanan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938** **Crl.Rev.Pet.No. 1387 of 2014 ()** **--------------------------------** **(CRIME NO. 108/2006 OF PONKUNNAM POLICE STATION , KOTTAYAM)** **REVISION PETITIONER(S)/FIRST RESPONDENT/COMPLAINANT: ---------------------------------------------------** **SALIN C. NARAYANAN,AGED 46, S/O.NARAYAN NAIR, CHORIYANMAKKALL HOUSE, ELIKKULAM VILLAGE, KOTTAYAM DIST.** **BY ADVS.SRI.S.PRASANTH SRI.JAGADEESH LAKSHMAN SRI.P.CHANDRASEKHAR** ## **RESPONDENT(S)/PETITIONERS/ACCUSED AND STATE:** **--------------------------------------------** **1. JANARDHANAN NAIR, S/O.RAGHAVAN NAIR VILLANICKAL, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** ## **2. SREENIVASAN NAIR,** - **S/O.RAMACHANDRAN NAIR, PARAPPALLIL VEETTIL, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** ## **3. RAVEENDRAN NAIR,** - **S/O.KRISHNAN NAIR, ONATHAPPAN KUNNEL VEETTIL, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** ## **4. SUSEELA PANICKER,** - **EDACHERRIYATHU VEETTIL, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** ## **5. BABU,** - **S/O.PARAMESWARAN NAIR, MULLOOR VEETTIL, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** **6. RAMACHANDRAN NAIR, S/O.NARAYANAN NAIR, THOTTUMPURATH VEETTIL, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** **7. THANKAPPAN NAIR,** - **S/O.NARAYANAN NAIR, PENDANATHU VEETTIL, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** **8. KUTTAN, S/O.KRISHNAN NAIR, PENMADANATHU VEETTIL, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** ## **9. UNNI,** - **S/O.RAGHAVAN NAIR, MADAPATTU VEETTIL, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** **10. MOHANAN, S/O.BALAKRISHNAN NAIR, MADAPALLIKKUNNEL, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** **11. RAVI, S/O.BALAKRISHNAN NAIR, VETTIKATTU, URULIKUNNAM KARA, ELIKULLAM VILLAGE, KANJIRAPALLY-686577.** **12. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA (CR.NO.108/2006 OF PONKUNNAM POLICE STATION)-682031.** **R1 -R 9 & 11 BY ADV. SRI.M.S.RADHAKRISHNAN NAIR R12 BY ADV. PUBLIC PROSECUTOR AMJAD ALI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-01-2017, THE COURT ON 16/3/2017 PASSED THE FOLLOWING:** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.R.P.No.1387 of 2014** - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of March, 2017 ## **O R D E R** The complainant, aggrieved by the order in Crl.M.P.No.849/2011 of the Additional Sessions Court in SC No.359/2010, challenges the legality, propriety and correctness of the order under section 227 of Cr.P.C. 2. The complainant alleged that, on 19/8/2005 at about 7.30 p.m., all the accused, in furtherance of their common intention, committed dacoity after trespassing into the office of the Sangam of which the complainant was the President. It was alleged that, they were armed with dangerous weapons and criminally intimidated the complainant and his colleagues and that, they forcefully took away the several articles and caused substantial damages. 3. The complaint was laid before the learned Magistrate, which was referred to the police under section 156(3)Cr.P.C. Crime was registered as Crime No.108/2006 of Ponkunnam police station. After investigation, final report was laid contending that the allegations are false. The protest complaint was filed and after recording statement of the complainant and other witnesses, cognizance was taken for offences punishable under sections Crl.R.P.No.1387/2014 2 323,324,341,395,447,143,144,506(i) read with section 34 IPC. After committal proceedings, the matter was placed before the Sessions Court. 4. Before the court below, Crl.M.P.No.849/2011 was filed by the accused seeking discharge under section 227 of Cr.P.C. The court below by the impugned order held that the offence under section 395 IPC was not made out and discharged the accused in relation to that charge. Since the remaining charges were triable by the learned Magistrate, it was directed that the case has to be proceeded against the accused person with respect to the other offences and that they will be tried by the concerned jurisdictional magistrate. This is under challenge in the present proceedings. 5. Heard and examined the records. 6. The court below, has essentially relied on few materials to conclude that the case set up by the complainant, especially in relation to the offence under section 395 IPC, was false. It was held that, a suit was filed as O.S.No.110/2005 by one Yogam, of which the accused herein were members, for a declaration and injunction against the complainant herein and others. The suit was decreed in favour of Yogam rejecting all the contentions of the complainant. Thereafter, certain disputes arose between the parties and crime Nos.178/2005&190/2005 were registered against the complainant and others for various offences under the IPC. The above matters are pending. 3 Crl.R.P.No.1387/2014 7. The court below held that, the final report in Crime No.178/2005 and Crime No.190/2005 showed that the complainant herein allegedly trespassed into the disputed building and committed various crimes. It was held that the complainant and its associates were facing prosecution in those cases. It was held in O.S.No.110/2015 that the gift deed relied on by the complainant was null and void. Relying on the above finding, Sessions Court held that, this was the document based on which the complainant claimed ownership and possession over the disputed building. The Sesions court held that in the light of the clear finding regarding the lack of title, the case of the complainant herein that he was in possession of the building and that the accused herein had entered that building on the relevant day and committed various offences were not legally sustainable. It was held by the Sessions Judge that the scene mahazar prepared on 21/8/2005 in Crime No.178/2005 just two days after the alleged incident did not indicate a commission of serious offences. It was further held that this disclosed only some minor incidents like smashing of glass etc. The court below on the basis of the above, concluded that the case of the complainant herein was not sustainable and there was no material to proceed under Section 395 IPC. 8. The approach of the court below suffers from one fundamental mistake. The court below heavily relied on the refer report of the police as well as the documents filed by the accused. Crl.R.P.No.1387/2014 4 The Hon'ble Supreme Court in **Rukmini Narvekar v. Vijaya Satardekar and others[(2008) 14 Supreme Court Cases 1]** had held that, though it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare case, i.e where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absured or totally concocted. It was further held that, there was no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in section 227 Cr.P.C. can be taken into consideration by the Magistrate at that stage. It was held in **Ajay Kumar Parmar v. State of Rajasthan [(2012) 12 Supreme Court Cases 406]** that while framing charges, the only material that has to be considered by the court below are documents submitted by the investigating agency. Any document relied on by the accused cannot be appreciated as evidence at that stage. Consideration of such evidence would lead to a mini trial during the stage of framing of charge,thus defeating the object of Cr.P.C. In the rarest of rare cases, materials produced by the accused can be considered, only if it convincingly established that the case of the prosecution was absurd, preposterous or concocted. 10. The above facts, clearly show that the court below went 5 Crl.R.P.No.1387/2014 wrong in substantially relying on the documents produced by the accused to negative the case of the complainant. On the other hand, the court below did not consider all the materials placed by the complainant to evaluate whether the materials sufficient for the trial have been raised. In the light of the above, the impugned order is legally not sustainable and is liable to be set aside. Accordingly, the impugned order is set aside. The Sessions Court shall take up Crl.M.P.No.849/2011 and shall pass fresh orders in accordance with law, after giving reasonable opportunity to both sides to advance their arguments. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge. Crl.R.P.No.1387/2014 6