Thomas @ Thadi Thomas v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 13[TH] DAY OF JANUARY 2023 / 23RD POUSHA, 1944 ``` ``` CRL.REV.PET NO. 282 OF 2020 ``` ## **`CC 381/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VADAKARA`** ## **`REVISION PETITIONER/5TH ACCUSED:`** ``` THOMAS @ THADI THOMAS AGED 74 YEARS S/O.AUGUSTINE, MUTHIRENTHI HOUSE, P.M.KUTTI ROAD, ERANHIPPALAM, KOZHIKODE. ``` ``` BY ADV T.G.RAJENDRAN ``` ## **`RESPONDENTS/STATE:`** ``` 1THE SUB INSPECTOR OF POLICE VADAKARA POLICE STATION, KOZHIKODE-673103. 2THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. ``` ``` BY ADV ``` ``` SMT. SREEJA V -SR.PP ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 282 OF 2020 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the 5[th] accused in Crime No.1187/2012 of Vadakara Police Station. The aforesaid crime was originally registered under Section 41(1)(d) read with Section 102 of Cr.P.C. Later, a further report was submitted therein altering the offences as Sections 379, 411, 414, 468 and 471 of the Indian Penal Code. 2. The allegation against the petitioner and the other accused, total 7 in number, is as follows: The accused Nos.1 to 4 are members of a gang wandering through South India and indulging in the theft of vehicles. The 5[th] accused used to purchase stolen vehicles and the accused Nos.5 and 6 used to jointly make false registration certificates for the said vehicle and the 7[th] accused used to sell the said vehicles. It is further alleged that, they are habitual offenders regularly engaged in these kinds of activities. On 19.11.2012 at 16.30 hours, the Police party intercepted a vehicle in which the petitioner and the accused Nos.1 to 3 were travelling and on inspection, the Police party recovered certain implements which were used for committing theft of vehicle. The crime was ``` CRL.REV.PET NO. 282 OF 2020 ``` ``` 3 ``` registered in such circumstances. After completing the investigation, Annexure I final report was submitted on 20.08.2014 for the offence punishable under Section 401 of the Indian Penal Code. The learned Magistrate framed the charge as per Annexure IV and the same is under challenge in this revision petition. 3. Heard Sri.T.G.Rajendran learned counsel appearing for the petitioner and Smt.Sreeja V., learned Public Prosecutor for the State. 4. The specific contention put forward by the learned counsel for the petitioner is that, the materials produced along with the final report and the allegations contained therein do not make out the offence under Section 401 of the Indian Penal Code. He further contend that, in order to attract the offence under Section 401 there must be materials to show that the petitioner and others are belonging to a gang of persons associated with the acts of habitually committing theft or robbery. Therefore, it is contended that in the absence of materials indicating that the petitioner is a habitual offender, no offence under Section 401 of Indian Penal ``` CRL.REV.PET NO. 282 OF 2020 ``` ``` 4 ``` Code would get attracted. 5. On the other hand, the learned Pubic Prosecutor would oppose the said contentions. It is pointed out that, the petitioner was arrested along with the articles which are used for committing theft of vehicles. It is also pointed that, as against the petitioner herein there are six other cases registered by the Vadakara Police Station. The details of the said cases were as follows: |**Sl.**<br>**No.**|**Police Station**|**Crime No.**| |---|---|---| |1|Vatakara|1189/12 – transferred to Vijaya Nagar PS,<br>Karnataka State| |2|Vatakara|1190/12 – transferred to Vijaya Nagar PS,<br>Karnataka State| |3|Vatakara|1194/12 – transferred to Hudco PS,<br>Tamil Nadu State| |4|Vatakara|1214/12 – transferred to Havoli PS,<br>Maharashtra State| |5|Vatakara|1216/12 – transferred to Hossur PS,<br>Tamil Nadu State| |6|Vatakara|1253/12 – transferred to Kavadaly PS,<br>Maharashtra State| It is pointed out that, all the said cases were pertaining to the theft of vehicles committed by the petitioner along with some other persons from outside the State and all those vehicles were seized from various parts of the State and thereupon the aforesaid cases were transferred to the Police Station concerned from where the ``` CRL.REV.PET NO. 282 OF 2020 ``` ``` 5 ``` vehicles were stolen. 6. By placing reliance upon the same, it is pointed out that, there are sufficient materials, indicating the criminal antecedents of the petitioner and therefore, the stipulation for attracting the offence under Section 401 of Indian Penal Code are already available. 7. I have gone through the records and examined the statutory provisions in this regard. In order to attract the offence under Section 401 of IPC, one of the essential requirements is that the persons against whom the offence is charged must be persons habitually committing theft or robbery. The learned counsel for the petitioner, places reliance upon **Arjun Das v. Emperor** [AIR 1932 Lahore 486] wherein the requirement for attracting the offence under Section 401 of the Indian Penal Code are elaborately considered. However, the crucial aspect to be noticed is that, the question whether the petitioner was involved in other cases and were habitually committing theft or robbery is essentially a question of fact. In the final report, there is an allegation that, they are indulging in similar activities. Even the decision relied on by ``` CRL.REV.PET NO. 282 OF 2020 ``` ``` 6 ``` the petitioner was rendered in an appeal filed against conviction, whereas the proceedings in this case, is against the charge framed by the court concerned. Since the contention raised by the petitioner is essentially a matter which requires adjudication on the basis of evidence to be adduced, I am of the view that, no interference at this stage can be made. What is under challenge in this case is the charge framed by the learned Magistrate. At the time of framing charge what is relevant is whether a prima facie case is made out or not. A reasonable suspicion of commission of the offence would be sufficient for framing charge. In this case, the petitioner and the other accused were arrested with the implements for committing the theft of vehicles, and the learned Public Prosecutor furnished the details of the crimes in which the petitioner was involved. In such circumstances, I am of the view that, no interference is required in the proceedings at this stage. Moreover, it is reported that the case is already scheduled for trial. In such circumstances, I am not inclined to invoke the jurisdiction of this Court under Section 397 read with Section 401 ``` CRL.REV.PET NO. 282 OF 2020 ``` ``` 7 ``` of Cr.P.C. At this stage, the learned counsel for the petitioner points out that, the physical condition of the petitioner is very weak and it may not be possible for him to appear before the court in person. Hence the petitioner seeks for an order exempting him from personal appearance before the court concerned. However,, I am of the view that, it is a prayer which he has to seek before the trial court. Therefore, it is ordered that, if any application for such exemption is submitted by the petitioner, appropriate orders in this regard shall be passed by the learned Magistrate in accordance with law taking into account the physical condition of the petitioner. It is further clarified that, all the contentions raised by the petitioner are left open to be decided on the basis of the materials collected during the trial. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` 8 ``` ## **`CRL.REV.PET NO. 282 OF 2020`** ## **`APPENDIX OF CRL.REV.PET 282/2020`** ``` PETITIONER ANNEXURES ANNEXURE ITRUE COPY OF THE FINAL REPORT DATED 20.08.2014. ANNEXURE IITRUE COPY OF THE FIRST INFORMATION REPORT DATED 19.11.2012. ANNEXURE IIITRUE COPY OF THE SEIZURE MAHAZAR DATED 20.11.2012. ANNEXURE IVTRUE COPY OF THE CHARGE IN C.C.NO.381/2015. ```