Sarath Kumar v. State of Kerala

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **Crl.MC.No.6936 OF 2019(F)** **SC 591/2015 OF VI ADDITIONAL DISTRICT & SESSIONS COURT, ERNAKULAM** **CRIME NO.907/2015 OF Ernakulam North Police Station , Ernakulam** ## **PETITIONER/ACCUSED** **SARATH KUMAR AGED 38 YEARS S/O.SASIDHARAN, KORAPARAMBU NIKARTHIL VEEDU, PONNAMVELI KARA, WARD NO.4, PATTANAKKAD P O, CHERTHALA.** **BY ADVS.** **SRI.SHAIJAN C.GEORGE SMT.SAJITHA GEORGE SHRI.JOE THOMAS** ## **RESPONDENTS** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** - **2 CIRCLE INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION, KOCHI CITY, ERNAKULAM, PIN-682018.** **SMT.K.K.SHEEBA PP. SRI.C.N.PRABHAKARAN,** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 ## Crl.M.C.6936/2019 **==> picture [30 x 12] intentionally omitted <==** ## ORDER 1. Petitioner is an accused facing trial under Sec.22(b) of the NDPS Act. He was called upon to enter on his defence and adduce evidence as provided under Sec.233(1) of Cr.P.C. He filed an application requesting to direct the village officer to prepare a plan showing five landmarks and to produce the same. The learned additional sessions judge dismissed the application. The said order is impugned in the present proceedings. 2. Heard Sri.Shaijan C.George, the learned counsel for the petitioner and Smt.K.K.Sheeba, the learned public prosecutor. 3. What the petitioner wants is to get a plan prepared by the village officer according to an accurate scale and showing five landmarks in the plan so prepared. Those five landmarks are mentioned in the application. The Crl.M.C.6936/2019 3 petitioner requested the trial court to issue a direction to the village officer to prepare such a plan and produce it in court. The application was filed under Sec.91 of Cr.P.C read with Sec.233(3) of Cr.P.C. The learned trial judge dismissed the application holding that no such application was maintainable. 4. Sec.91 of Cr.P.C provides, inter alia, that if any document is necessary or desirable for the purpose of any inquiry or trial, the court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to produce it in court. As is stated in Sec.91 itself, the document must be one believed to be in the possession or power of the person to whom summons is to be issued to produce it. The document must therefore be one in existence. That not, it cannot be believed to be in the possession or power of any person. No court can issue a summons under Sec.91 of Cr.P.C to any person to produce a 4 Crl.M.C.6936/2019 document after preparing it. The petitioner cannot request the court to issue summons to the village officer to prepare a plan and produce it. 5. An accused who is called upon to enter on his defence and adduce evidence is entitled under Sec.233(3) of Cr.P.C to apply to the court to issue process for compelling the attendance of any witness or the production of any document or thing. Then, the court shall issue such process unless the court considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. There is nothing in Sec.233(3) of Cr.P.C enabling an accused to seek issuance of process directing any person to prepare a document and produce it. A process can be issued only for the production of any existing document or thing. 5 ## Crl.M.C.6936/2019 6. The learned counsel for the petitioner relied on two reported decisions. The Bombay High Court in Angadh v. State of Maharashtra ( 2007 (2) Maharashtra Law Journal 394) has held that when an accused exercises his right under Sec.233(3) of Cr.P.C for compelling the attendance of any witness or production of any document, the court can refuse the request only on any of the three grounds mentioned in Sec.233(3). The question which this court is called upon to decide in the present proceedings is not the question decided by the Bombay High Court in Angadh (supra). What was challenged before the Bombay High Court was an order rejecting the application of the accused for a direction to the prosecution to produce the statements of a few persons recorded under Sec.161 of Cr.P.C. Those were papers in existence and not something to be prepared and produced. The decision in Angadh (supra) has no application to the question under consideration in the present proceedings. 6 ## Crl.M.C.6936/2019 7. The other decision relied on by the learned counsel is Koshy @ Baby v. State (1991 (1) KLJ 453) . This court observed in the said decision thus : Before parting with the case, we may say a word about preparation of sketch in sessions cases. We express our displeasure over the sketch (Ext P7) prepared by the village officer since it was drawn up in a slip-shod fashion. It does not show the landmarks such as the gate, the courtyard or the sitout of the deceased's residence and compound nor even the road and the location of the shop wherefrom P.W.1 came. A sketch which is bereft of at lease important landmarks of the prosecution story is not worthy to be produced in a criminal trial. Ext P7 has obviously been drawn up in a perfunctory manner. A sketch in sessions case must help the court to understand and appreciate the evidence. Otherwise, there is no need to mark it as an exhibit. We feel that it is the duty of the public prosecutor to verify initially whether the sketch prepared by the village officer or village assistant has any practical utility in the case. If the sketch already prepared is deficient in such particulars, there is nothing wrong in arranging to have another sketch. Even if the public prosecutor fails to supply one like that, it is desirable that the Sessions Judge calls upon the village officer or the Village Assistant concerned to prepare another sketch indicating necessary particulars. This can be done either before or after framing charge or at any other 7 ## Crl.M.C.6936/2019 convenient stage so that a sketch would be made available at least during final stage of trial. We make these observations as guidance for sessions judges. The above observation made by this court as a guidance for the sessions judges cannot be made use of by any accused to get a plan prepared by the village officer to establish the defence set up in a case. 8. The learned additional sessions judge did no mistake when he dismissed the application of the petitioner. The Crl.M.C is without any merit. It deserves only a dismissal. ## 9. Dismissed. Sd/- A.M.BABU Judge Mrcs/22.10. ## **APPENDIX** ## **ANNEXURE A1** **A TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME NO.907/2015 OF ERNAKULAM TOWN NORTH POLICE STATION.** **ANNEXURE A2 A TRUE COPY OF THE FINAL REPORT IN SC NO.591/2015 BEFORE THE VITH ADDITIONAL SESSIONS COURT, ERNAKULAM.** **ANNEXURE A3 A TRUE COPY OF THE PETITION IN CRL. M.P. NO.2170/2019. ANNEXURE A4 A TRUE COPY OF THE ORDER IN CRL.MP. 2170/2019 IN SC NO.591/2015 DATED 29/08/2019 OF VITH ADDITIONAL SESSIONS COURT, ERNAKULAM.**