IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 166 of 2010()
128. YEARS
... Petitioner
1. SAJEER, AGED 28 YEARS, S/O. MOHAMMAD,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.K.MUHAMMED SALAHUDHEEN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :02/02/2010
O R D E R
V.K.MOHANAN, J.
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Crl.R.P.No.166 of 2010
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Dated this the 2nd day of February, 2010
ORDER
The second accused in a prosecution for the offence
punishable under Section 379 read with Section 34 IPC is the
revision petitioner. The revision petitioner approached the trial
court by filing Crl.M.P.6413/2009 under Section 239 of Cr.P.C.
seeking of discharge from the criminal case.
2. Crime No.123/2000 of Feroke Police Station was
registered for the offence punishable under Section 379 read
with Section 34 IPC., in which the allegation is that on 13.7.2000
at about 6.30 p.m. CW2 had taken the motorcycle bearing
No.KL-11/D-8567 owned by CW1 with the permission of CW1
from his house at Cheruvannoor and thus the motorcycle was
parked near the Feroke Railway Station gate since CW2 went to
the mosque for offering prayer. When he returned after the
prayer the motorcycle was not seen there and it was stolen. On
the basis of the said crime investigation was undertaken by the
police and finally a report was filed implicating the petitioner
herein as the second accused and one Illyas as the first accused.
Originally the case was taken on file as C.C.No.303/2001 and the
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first accused was produced in the said case. After the
examination of PW8, the first accused disappeared and as he had
absconded the case was transferred to the Long Pending
Register and on procuring his presence the case was refiled as
C.C.529/2007 against the first accused. After the trial against
the first accused by judgment dated 20.8.2009 in C.C.529/2007
the trial court acquitted the first accused.
3. It is relevant to note that after the registration of crime
the present petitioner who was arrayed as second accused was
not arrested and he did not appear before the trial court and
therefore, the case against him was splited and refiled as
L.P.62/2005.
4. Now the case of the petitioner is that no purpose will be
served even if he is directed to appear before the court to face
the charge and to undergo the order of trial since the first
accused was already acquitted by the trial court. Taking the
above contention the revision petitioner has once approached
this court by filing Crl.M.C.3208/2009 and this court while
disposing the said M.C. relegated the petitioner to approach the
trial court and to raise the contentions in support of plea for a
discharge. Thus the petitioner approached the trial court by
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filing C.M.P.6413/2009 in L.P.No.62/2005 with a prayer to
discharge him under the grounds mentioned above. As the
grounds taken by the petitioner was not acceptable to the
learned Magistrate the said petition was dismissed and
therefore, the second accused is now before this court.
5. I have heard Mr.Mohammad Salahudheen, learned
counsel appearing for the petitioner as well as the learned Public
Prosecutor.
6. The learned counsel submitted that the petitioner was
implicated in the crime on the basis of the alleged confession
statement made by the first accused. It is also pointed out that
by an elaborate judgment dated 20.8.2009 in C.C.529/2007 the
trial court has already acquitted the first accused and therefore,
there is no meaning in directing the petitioner to undergo the
ordeal of trial and no purpose will be served, other than waste of
time of the trial court.
7. Opposing the prayer of the petitioner and argument
advanced by the learned counsel for the petitioner, the learned
Public Prosecutor submitted that the factum of acquittal of first
accused is not a ground to discharge the petitioner who is the
second accused. It is also pointed out by the Public Prosecutor
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that whatever the grounds taken in the memorandum of revision
petition can be raised before the trial court at appropriate time.
8. I have carefully considered the contentions advanced by
both the counsel for the petitioner as well as the learned Public
Prosecutor and also perused the available records. Admittedly
the bike belonging to CW1 was stolen on 13.7.2000 at 6.30 p.m.
near from the Feroke railway station gate. The alleged offence
was during the year 2000. It is true that during the course of
investigation the bike was recovered allegedly on the basis of a
confession statement given by the first accused. Still then the
trial court acquitted the first accused mainly on the ground that
the prosecution miserably failed to establish the connection
between the accused with that of the motorcycle which
recovered subsequently. Admittedly there was no eye witness to
the offence alleged against the accused and there was no link
evidence to implicate the accused other than the so-called
confession statement alleged to have made by the first accused.
The trial court, on the basis of the evidence has specifically
found that the so-called confession statement of A1 was not
produced and the police officer, allegedly recorded the
confession statement of A1 was also not produced and he was
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not examined. The only material relied on by the police to
implicate the second accused is that of the confession statement
alleged to have made by the first accused. But in the absence of
the confession statement before the court below the first
accused was acquitted. If that be so, no liability can be fixed
against the petitioner also even if he is compelled to undergo the
ordeal of the trial. In the light of the acquittal of the first
accused, no liability even be fixed against the remaining only
one accused with the aid of Section 34 of IPC.
9. When the trial court is approached by the petitioner by
filing a proper petition for discharge, without assigning any
satisfactory reasons the trial court simply dismissed the petition
stating that the case against the petitioner can be considered
only after evidence. No cogent reason was assigned to reject the
ground raised by the petitioner in support of his plea for
discharge. The specific case raised by the petitioner before the
trial court is that there are no materials to proceed with the trial
against the petitioner in the light of the order of acquittal passed
by the same trial court against the first accused. If there is no
material to proceed against the second accused/petitioner, there
is no meaning in directing the petitioner to undergo the ordeal of
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trial. Therefore, according to me, the trial court ought to have
allowed the petition filed by the revision petitioner. It is also
relevant to note that the defacto complainant is no more and the
bike in question was already recovered and given to the
appropriate person and the alleged offence was taken place
during the year 2000. Under the above circumstances, I am of
the view that the petitioner is entitled to get a discharge under
Section 239 of Cr.P.C.
10. In the result this revision petition is allowed
discharging the petitioner from the criminal case instituted on
the basis of the police report in Crime No.16/2001 and presently
pending as C.C.1261/2009, before the Judicial First Class
Magistrate Court-V, Kozhikode.
V.K.Mohanan, Judge
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