Viju P. S. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945 CRL.REV.PET NO. 1231 OF 2023 CRIME NO.753/2017 OF Narakkal Police Station, Ernakulam ORDER DATED 20.10.2023 IN CC 386/2022 OF JUDICIAL FIRST CLASS MAGISTRATE COURT (TEMPORARY), NJARAKKAL REVISION PETITIONER/ACCUSED NO.20:** **VIJU P S AGED 51 YEARS S/O.SHANMUGHAN, PONATHHOUSE, ELAMKUNNAPUZHA, ERNAKULAM, PIN - 682508** **BY ADVS. S.RAJEEV V.VINAY M.S.ANEER PRERITH PHILIP JOSEPH SARATH K.P. ANILKUMAR C.R. K.S.KIRAN KRISHNAN** ## **RESPONDENTS/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **PUSHPALATHA M.K – SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 13.12.2023, THE COURT ON 05.01.2024 DELIVERED THE FOLLOWING:** 2 Crl.Rev.Pet.No.1231 of 2023 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Rev.Pet.No.1231 of 2023 ----------------------------------------------------------Dated this the 5[th] day of January, 2024** ## **O R D E R** Petitioner is the accused No.20 in C.C.No.386 of 2022 before the Judicial Magistrate of the First Class, Njarakkal. He filed CMP No.1693 of 2023 under Section 239 of the Code of Criminal Procedure, 1973 (Code). The learned Magistrate dismissed that petition. Aggrieved by that order, the petitioner filed this petition under Section 397 r/w 401 of the Code. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. There are 125 accused in C.C.No.386 of 2022. Construction activities are going on for the IOC project on its land at Puthuvypu. Local residents protest against the said construction. On 18.06.2017, a few protesters were arrested and removed by the police. Getting infuriated on that remaining protesters who are arraigned as the accused formed themselves into an unlawful assembly and attacked 3 Crl.Rev.Pet.No.1231 of 2023 the police personnel. The accused had pelted stones at the defacto complainant and other police personnel on duty. Assailants also had attacked police personnel using reaper and by fisting. 11 police personnel including the defacto complainant sustained injuries who are CWs 1 to 11. Thereby the accused including the petitioner have committed the offences punishable under Sections 143, 144, 145, 148, 120(B), 353, 332 r/w 149 of the IPC. 4. The petitioner was arrayed as accused No.20. Contention of the petitioner is that he was totally innocent and had not involved in the alleged incident. He was not identified by any of the witnesses and only based on the inference of the investigating officer, he has been implicated in the case. It is his further contention that his name stated in the final report is incorrect although address given is correct. Thus from the materials on record, it is quite evident that the petitioner had no connection with the alleged crime and there is no sufficient ground to frame a charge against him. The learned counsel for the petitioner by places reliance in the above regard on **Pushpendra Kumar Sinha v. State** 4 Crl.Rev.Pet.No.1231 of 2023 **of Jharkhand [AIR 2022 SC 3983]** where it was held that although, the inquiry at the stage of framing charge is of limited scope, the court is expected to ensure that there are sufficient grounds justifying framing of a charge against an accused. 5. In **State of Bihar v. Ramesh Singh [AIR 1977 SC 2018]** the Apex Court held that at the stage of framing charge, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage, the truth, veracity and effect of the evidence, which the prosecution proposes to adduce, are not to be meticulously judged. It is also unnecessary to weigh the probable defence of the accused. The view taken by the Apex Court in **Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and another [(1989) 1 SCC 715]** is that the court need not conduct an elaborate enquiry in sifting and weighing of the evidence at the time of framing charge. It is also not necessary to delve into various aspects. All that the court has to consider is whether the 5 Crl.Rev.Pet.No.1231 of 2023 evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. In **Union of India v. Prafulla Kumar Samal and another** **[(1979) 3 SCC 4]** the Apex Court held that where the materials disclosed grave suspicion against the accused, which has not been properly explained, the court would be justified in framing a charge against the accused. In **Soma** **Chakravarty v. State through CBI [(2007) 5 SCC 403]** the Apex Court reiterated the said view by holding that when there exists a strong suspicion, a charge can be framed. It was also cautioned that a mere suspension as distinguished from grave suspicion is not enough to frame a charge. 6. In **Vijayan P. v. State of Kerala and another [(2010) 2 SCC 398]** the Apex Court held that the judge who considers a question where a charge is liable to be framed is not a mere Post office to frame the charge at the behest of the prosecution. The judge is expected to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In **State of** 6 Crl.Rev.Pet.No.1231 of 2023 **Gujarat v. Dilipsinh Kishorsinh Rao (MANU/SC/1113/** **2023]** , the Apex Court held that at the stage of considering an application for discharge, the court shall proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate such materials in order to determine whether the facts emerging from the materials taken on its face value disclosed the existence of the ingredients necessary of the offences alleged. 7. Annexure 2 is a copy of the final report. Accused No.20 is one Biju S/o.Shanmughan. Name of the petitioner is Viju P.S., S/o.Shanmughan. When address given in the final report is that of the petitioner, there can be an inference that the person added as accused No.20 is the petitioner himself. The question is whether such an inference is enough to frame a charge against the petitioner. 8. From the statements of CWs 1 to 11 and CWs 14 and 15 who are cited as witnesses to the occurrence, it is seen that after the alleged attack, the assailants took on their heels. None of them was seen arrested. There is no process for identification for assailants. Of course, those 7 Crl.Rev.Pet.No.1231 of 2023 witness stated that they could identify the assailants at sight. At this stage the said statements of the witnesses cannot be discarded. However in the case of the petitioner, the difference in his name assumes much importance. When he was not identified by the witnesses as one among the assailants during the investigation, adding him with a different name in the final report improbabilise the prosecution case against him. 9. It is the settled law that for a conviction with the aid of Section 149 of the IPC it is not necessary to prove active role of every member of the unlawful assembly. If the prosecution is able to prove that the person was one among the unlawful assembly, he can be held responsible for the offences committed by the other members of the assembly. (See: **Shambhu Nath Singh v. State of Bihar [AIR 1960 SC 725], Masalti v. State of UP [AIR 1965 SC 202], Hari v. State of UP 2021 SCC OnLine SC 1131, Ravashaheb @ Ravashaebgounda etc. v. State of Karnataka [(2023) 5 SCC 391]** ). 10. Even for convicting a person being a member of 8 Crl.Rev.Pet.No.1231 of 2023 the unlawful assembly his role as the member has to be proved. When the petitioner was arraigned as an accused with a different name and there was no process for his identification during the investigation such as arrest, identification parade, etc, the possibility of proving him as a member of the unlawful assembly that attacked the police contingent is quite remote. In such circumstances, I am of the view that the materials produced by the prosecution is insufficient to make out a grave suspicion justifying framing of a charge against the petitioner. Hence this revision petition is allowed. On setting aside the impugned order, CMP No.1693 of 2023 in C.C. No.386 of 2022 on the files of the Judicial Magistrate of the First Class, Njarakkal is allowed. The petitioner (accused No.20 in C.C.No.386 of 2022) is discharged. Sd/- **P.G. AJITHKUMAR JUDGE** PV 9 Crl.Rev.Pet.No.1231 of 2023 ## **APPENDIX OF CRL.REV.PET 1231/2023** **PETITIONER ANNEXURES Annexure-I THE TRUE COPY OF THE FIR ALONG WITH FIS IN CRIME NO.753/2017 OF NJARAKKAL POLICE STATION Annexure-II THE TRUE COPY OF THE FINAL REPORT IN CRIME NO.753/2017 OF NJARAKKAL POLICE STATION Annexure-III THE TRUE COPY OF THE 161 STATEMENTS OF THE WITNESSES CW 1 TO 11 AND 14 AND 15 IN CRIME NO. 753/2017 OF NJARAKKAL POLICE STATION Annexure-IV THE TRUE COPY OF THE AADHAR CARD OF THE PETITIONER Annexure-V THE TRUE COPY OF THE RESIDENT PERMIT AND CLEARANCE ISSUED TO THE WIFE AND SON OF THE PETITIONER BY THE U.K GOVERNMENT** **Annexure-VI THE TRUE COPY OF THE DISCHARGE SUMMARY OF THE PETITIONER'S DAUGHTER DATED 01.08.2014 ISSUED BY THE MEDICAL CENTER HOSPITAL, ERNAKULAM Annexure-VII THE TRUE COPY OF THE ORDER DATED 26.09.2023 IN CR.M.C NO.3373/2023 Annexure-VIII CERTIFIED COPY OF THE ORDER DATED 20.10.2023 IN CMP NO.1693/2023 IN C.C.NO.386/2022 OF JFCM, NJARAKKAL**