IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4401 of 2007()
1. PUTHEN VEETTIL ACHU ALIAS ACHUTHAN
... Petitioner
Vs
1. STATE OF KERALA (EXCISE INSPECTOR,
... Respondent
For Petitioner :SRI.P.P.RAMACHANDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/10/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 4401 OF 2007
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Dated this the 21st day of October, 2008
O R D E R
Petitioner is the accused in S.C.6 of 1999 on the file of
Additional Assistant Sessions Judge, Thalassery. Prosecution
case was that on 15.7.1997 at about 11.30 a.m. petitioner was
found possessing 170 packets of 100 ml Karnataka arrack in
violation of the provisions of Abkari Act, in front of St.Mary’s
Timbers in Ulikkal Mattara road and thereby committed an
offence under section 55(a) of Abkari Act. Petitioner pleaded
not guilty. Prosecution examined 5 witnesses, marked 5 exhibits
and identified 4 material objects. Though petitioner was called
upon to adduce evidence, he did not adduce evidence. Learned
Additional Assistant Sessions Judge on the evidence found him
guilty. He was convicted and sentenced for the offence under
section 55(a) of Abkari Act. Petitioner challenged the conviction
before Sessions Court, Thalassery in Crl.Appeal 472 of 2002.
Learned Sessions Judge on appreciation of evidence confirmed
the conviction, but modified the sentence. It is challenged in the
revision.
CRRP 4401/07 2
2. Learned counsel appearing for petitioner pointed out
that learned Sessions Judge after closing the prosecution
evidence and questioning the accused without hearing the
accused under section 232 of Code of Criminal Procedure, called
upon the accused to enter on his defence and thereafter
convicted the petitioner and there is violation of the mandatory
provisions of section 232 of Code of Criminal Procedure and
therefore the conviction is illegal.
3. Section 232 of Code of Criminal Procedure provides
the procedure after closing the prosecution evidence. Under
section 232 if after taking the evidence of the prosecution and
examining the accused and hearing the prosecution and defence,
if on consideration of the materials, Sessions Judge is of the
opinion that there is no evidence to connect the accused with
the offence, the Sessions Judge shall record an order of
acquittal. Sessions Judge can proceed under section 233 of
Code of Criminal Procedure and call upon the accused to enter
on his defence and adduce evidence in support of his case, only
after completing the stage under section 232 and finds that it is
not a case where there is no evidence to connect the accused
with the offence charged.
CRRP 4401/07 3
4. Proceedings paper of the learned Assistant Sessions
Judge shows that prosecution evidence was closed on 26.8.2002
and case was adjourned to 27.8.2002 for questioning the
accused. Proceedings of 27.8.2002 reads:
“Accused questioned under section 313 of
Cr.P.C. For defence evidence. Adjourned to
28.8.2002.”
On 28.8.2002 it was recorded:
“No evidence for accused and case was
posted for hearing to 31.8.2002.”
On that date arguments were heard and posted for judgment to
5.9.2002. Therefore proceedings paper shows that after
questioning the accused under section 313 of Cr.P.C., learned
Assistant Sessions Judge did not hear the prosecution and the
defence and straight way proceeded under section 233 and
called upon the defence to adduce evidence. The procedure
adopted by the learned Assistant Sessions Judge is illegal.
Accused can be called upon to enter on his defence only after
hearing the prosecution and the defence and Assistant Sessions
Judge considers evidence and finds that it is not a case where
there is no evidence to connect the accused with the offence.
CRRP 4401/07 4
5. This aspect was considered by a Division Bench of
this Court in Suresh v. State of Kerala (2006 (1) KLT 78).
Following the decision of this Court in Radhanandan v. State
of Kerala (1990 (1) KLT 516 and Sivamani v. State of
Kerala (1992 (2) KLT 227) it was held that after examining
the accused under section 313 Cr.P.C. the trial judge cannot
straight away call upon to enter on his defence and non
compliance of section 232 of Cr.P.C. is an infirmity which goes
to the root of the matter with regard to the procedure followed
by the trial judge. Unfortunately this aspect was omitted to be
taken note of by the learned Sessions Judge.
Revision is therefore allowed. Conviction and sentence
passed by learned Assistant Sessions Judge as confirmed by
learned Sessions Judge, without complying with the provisions of
section 232 of Cr.P.C. is set aside. S.C. 6 of 1999 is remanded to
Assistant Sessions Court, Thalassery to proceed from the stage
under section 232. Assistant Sessions Judge is directed to hear
the prosecution and the defence and thereafter consider
whether it is a case for an order of acquittal. If there is no
evidence connecting the accused with the offence, an order of
acquittal is to be passed. If there is evidence, then the accused
CRRP 4401/07 5
is to be called upon to enter on his defence and as provided
under section 233. If accused adduces evidence, Assistant
Sessions Judge shall then hear the arguments as provided under
section 234 and pass a judgment either convicting or acquitting
the accused as provided under section 235 of Cr.P.C. If the
accused is to be convicted under section 235 (1) as provided
under sub section 2 of Section 235 of Cr.P.C., he is to be heard
on the question of sentence. Petitioner is directed to appear
before Assistant Sessions Judge, Thalassery on 02.12.2008.
Send back the records immediately. Assistant Sessions Judge is
directed to dispose the case expeditiously.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-