Vijayakumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 7TH DAY OF FEBRUARY 2014/18TH MAGHA, 1935** **Crl.MC.No. 4326 of 2013 () --------------------------CP 35/2002 of JUDICIAL FIRST CLASS MAGSITRATE COURT, VARKALA** ## **---------** ## **PETITIONER/ACCUSED :** - **------------------** **VIJAYAKUMAR, S/O.BHASKARAN, POYIKAVILA VEEDU, A.K.NAGAR K.P.6/256, KEEZHATTINGAL DESOM, KEEZHATTINGAL VILLAGE,THIRUVANANTHAPURAM.** **BY ADV. SRI.T.K.ANANDA KRISHNAN** ## **RESPPONDENTS/COMPLAINANT:** **------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA.** **2. THE CIRCLE INSPECTOR OF POLICE KADAYKAVOOR POLICE STATION, KADAYKAVOOR THIRUVANANTHAPURAM.** **R1 & R2 BY PUBLIC PROSECUTOR SRI.REJI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 4326 of 2013 ()** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE A1: COPY OF THE FIR IN CRIME NO 172/2000 OF KADAVAKAVOOR POLICE STATION. ANNEXURE A2: COPY OF THE CHARGE SHEET IN CRIME NO. 172/2000. ANNEXURE A3: COPY OF THE DEPOSITION OF PW1 IN SESSIONS CASE NO. 679/03. ANNEXURE A4: COPY OF THE DEPOSITION OF PW2 IN SESSIONS CASE NO. 679/03. ANNEXURE A5: COPY OF THE DEPOSITION OF PW3 IN SESSIONS CASE NO. 679/03. ANNEXURE A6: COPY OF THE DEPOSITION OF PW4 IN SESSIONS CASE NO. 679/03. ANNEXURE A7: COPY OF THE DEPOSITION OF PW5 IN SESSIONS CASE NO. 679/03. ANNEXURE A8: COPY OF THE DEPOSITION OF PW6 IN SESSIONS CASE NO. 679/03. ANNEXURE A9: COPY OF THE DEPOSITION OF PW7 IN SESSIONS CASE NO. 679/03. ANNEXURE A10: COPY OF THE DEPOSITION OF PW8 IN SESSIONS CASE NO. 679/03. ANNEXURE A11: COPY OF THE RELEVANT PAGES OF JUDGMENT IN SESSIONS CASE NOP. 679/2003, 1646/2004 AND 1128/2005.** **RESPONDENT'S ANNEXURES : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C. No.4326 of 2013 ---------------------------------------------Dated this the 7[th] day of February, 2014 ## **ORDER** This petition is filed under Section 482 Cr.P.C. to quash Annexures-A1 and A2 in Crime No.172/2000 of Kadaykavoor Police Station, which was filed U/Ss.143, 147, 148, 449, 427, 506(ii) and 302 IPC r/w Section 149 IPC, U/s. 27 of the Arms Act and U/S.3 & 5 of Explosive Substance Act 1908. 2. The prosecution case was that on 8.10.2000 at 11.30 p.m, the accused formed themselves into an unlawful assembly in front of the house of one Sukumaran Chettiyar armed with deadly weapons and broke open the southern and western door and committed the aforesaid offence. On the basis of the information, Kadaykavoor Police registered the above crime and after investigation laid charge before the Court against 21 persons. Since A18 and A20 were Crl.M.C.No.4326/13 2 absconding, their case was split up by the trial court and remaining accused were tried and acquitted by the learned Additional District and Sessions Court, Thiruvananthapuram Fast Track-I, on 19.3.2008. The petitioner is the 20[th] accused in the above case. Now he approached this Court to quash the proceedings against him by invoking the inherent powers under Section 482 Cr.P.C. 3. Heard both sides. The learned counsel appearing for the petitioner contended that prosecution witnesses, Pw1 brother , Pw2 wife, Pw7 mother and Pw8 daughter were declared hostile and did not identify the accused in the above case. The other prosecution witnesses also did not support the prosecution case. No circumstantial evidence has been produced before the Court to prove the prosecution allegation. As a result, the only available evidence supporting the prosecution case is few weapons, postmortem report, and chemical Crl.M.C.No.4326/13 3 examination result. That itself is not sufficient for convicting for the alleged offence. The trial court acquitted all the accused except accused Nos.18 and 20. Since the trial is mere abuse of process, the learned counsel for the petitioner seeks interference of this Court to invoke the inherent powers under Section 482 Cr.P.C. The learned counsel submits that the petitioner is a law abiding citizen and he is not involved in any other offence. Since immediately after the incident, he went abroad in search of job, he could not appear before the Court and face trial. The learned counsel for the petitioner relied decision in Moosa v. Sub Inspector of Police [2006(1) KLT 552 (F.B.)] and the order in Crl.M.C.No.2932/2012 dated 8.10.2012. 4. The learned Public Prosecutor strongly opposed the petition and contended that the petitioner was absconding after the incident and without appearing before Court and taking bail in a serious crime, he approached this Court. Therefore, he is not entitled to get Crl.M.C.No.4326/13 4 the benefit under Section 482 Cr.P.C. The acquittal of the other accused will not help the petitioner in any way. Therefore, he prays to reject the claim put forwarded by the petitioner. 5. Now the question that arises for consideration is whether the inherent powers of this Court under Section 482 Cr.P.C. can be invoked at this stage. The petitioner's case is that since he was working abroad immediately after the incident, he could not participate in the trial. Therefore, his case was split up by the trial court and included in the L.P. Register. Now he lost his job and wish to reside in his native place. In such a situation, if the case is pending, it will affect his future also. In the circumstances, he approached this Court with the above petition. 6. It is clear from Annexures-A1 and A2 that 21 persons were arrayed as accused and majority of them were acquitted except accused Nos. 18 and 20 by Crl.M.C.No.4326/13 5 Annexure-A11 judgment by the Additional District and Sessions Judge(Fast Track Court-I), Thiruvananthapuram. 7. The learned counsel for the petitioner submitted that while framing charge, the allegations against accused Nos.18 and 20 were also considered by the Court. That is good ground for the petitioner to get the benefit under Section 482 Cr.P.C. It is admitted that prosecution examined altogether 24 witnesses and marked Exts.P1 to P37 and admitted MO1 to MO10 in evidence. The accused were questioned under Section 313 Cr.P.C. also. The incriminating circumstances brought out in evidence were denied by the accused during trial. Finally, they were acquitted, except accused Nos.18 and 20, after appreciating the prosecution evidence. The main eye witnesses were turned hostile. Moreover, there was no circumstantial evidence to connect these persons with the the crime. That was the finding of the Additional Sessions Judge. I agree with the above arguments advanced by Crl.M.C.No.4326/13 6 the learned counsel for the petitioner. 8. The inherent powers of the High Court contemplated u/s 482 Cr.P.C. has to be exercised only for the three purposes mentioned in the Section. This power cannot be invoked naturally in a matter where it is covered by a specific provision of the code. Therefore it means that if the matter in question is not covered by any provision of the code, it comes into operation, for the three purposes mentioned in the section. Inherent jurisdiction to make such orders necessary to “give effect to any order” under this code or to prevent “abuse of the process” of any court or to secure “the ends of justice”. In the State of Haryana V. Bhajanlal, the Supreme Court pointed out that: “where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed”. 9. Coming to the facts and circumstances of this Crl.M.C.No.4326/13 7 case, it is true that the petitioner was absconding after the incident. The petitioner's contention is that as he went abroad in search of job, he could not co-operate with the trial. The allegation was that he broke open the southern door of the house, which requires evidence. Since no eye witnesses supported the incident and the petitioner was absconding, it is the primary responsibility of the petitioner to surrender before the Court and apply for regular bail before approaching this Court. 10. In the circumstances, I am of the view that since the petitioner is absconding, he is directed to surrender before the trial court and seek bail and thereafter liberty to approach this Court for getting proper remedies. Crl.M.C. is disposed of accordingly. ## **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.4326/13 8 Crl.M.C.No.4326/13 9