IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19428 of 2008(K)
1. ASHOKAN, AGED 38 YEARS, S/O.CHELLAPPAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. CIRCLE INSPECTOR OF POLICE,
For Petitioner :SRI.K.MADHUSOODHANAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :27/06/2008
O R D E R
R.BASANT, J.
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W.P.C.No.19428 of 2008
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Dated this the 27th day of June 2008
J U D G M E N T
The petitioner has come to this court with this petition
under Article 226 or 227 of the Constitution of India. He along
with the co-accused faces indictment for offences punishable
inter alia under Section 307 read with 149 I.P.C. He prays that
the case against him may be quashed.
2. The alleged incident took place on 01/07/1998. The
F.I.R was registered on 2/7/1998. In the F.I.S the petitioner is
not named as an accused. The local police conducted
investigation. They filed a final report in which the petitioner
was not arrayed as an accused. Cognizance was taken and
committal proceedings was registered. In the meantime as per
the orders of the Director General of Police further investigation
under Section 173(8) Cr.P.C commenced and the Crime Branch
C.I.D took over the investigation. After completing the further
investigation, further final report Ext.P6 was submitted by the
investigating officer . Two accused from the array of accused in
the initial final report filed by the local police were deleted and
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two others including the petitioner herein were brought on the
array of accused. On the further final report, cognizance was
taken against the petitioner. The case was committed to the
court of Session. The petitioner had come to this court earlier
and he was directed to raise his plea at the stage of 227 Cr.P.C.
before the Sessions Court. The petitioner raised his objections
before the Sessions Court and the learned Sessions Judge by the
impugned order (a copy of which is produced as Ext.P3) took the
view that the charges are liable to be framed and the petitioner
is not entitled to be discharged. A detailed order is seen
passed.
3. The petitioner claims to be aggrieved by the
impugned order passed by the learned Sessions Judge refusing
to discharge him under Section 227 Cr.P.C. The learned counsel
for the petitioner marshals several facts in support of his
contentions that the petitioner is innocent and he does not
deserve to stand an unjustified trial against him. The learned
counsel for the petitioner first of all points out that the petitioner
is not named in the F.I.R. He further points out that at the
relevant time, the petitioner must have been in the hospital
W.P.C.No.19428/08 3
undergoing treatment. He then submits that no specific overt
act is alleged against the petitioner in the statements of the
witnesses and two of the accused persons who have been
dropped from the array of accused are persons against whom
specific overt acts were alleged earlier. The learned counsel for
the petitioner also points out that there is discrepancy in the
date throwing serious doubt on the acceptability of further 161
statements of the witnesses recorded in the course of Section
173(8) Cr.P.C examination. The learned counsel for the
petitioner submits that the Director General of Police appears to
have ordered further investigation only on 23/12/2000 and the
court had accepted report of re-investigation under Section 173
(8) Cr.P.C only on 28/2/2001 though the petitioner is shown to
have been brought on the array of accused much earlier as per a
report dated 23/8/2000. The learned counsel for the petitioner
also wants the court to take note of the fact that the wound
certificate would suggest that the petitioner was already before
the doctor undergoing treatment at the time when the incident
in this case is alleged to have taken place.
W.P.C.No.19428/08 4
4. The matter stands listed for trial to 4/7/2008. There
are as many as 24 accused persons facing trial now. Witnesses
have been summoned to appear.
5. I have gone through the order passed by the learned
Sessions Judge rejecting the claim of the petitioner to be
discharged under Section 227 Cr.P.C. I note that the learned
Sessions Judge have adverted to all the relevant aspects though
final conclusions have not been rendered on the acceptability of
the contentions raised by the petitioner. I am of the opinion that
the learned Sessions Judge was absolutely correct in resorting to
that course as at the stage of Section 227 Cr.P.C all the
questions raised need not be finally resolved. All that need be
considered at the stage of 227 Cr.P.C is whether sufficient
grounds have been made out to proceed against the indictee.
The petitioner shall be at liberty to raise all his contentions in
the course of the trial and satisfy the learned Sessions Judge that
the case against him should be discarded and not be accepted for
the reasons which he has urged. At the present stage and with
the available inputs final decision cannot be taken on those
contentions raised and the petitioner cannot be exonerated and
W.P.C.No.19428/08 5
premature termination of proceedings against him cannot be
brought about by discharge under Section 227 Cr.P.C.
6. I am, in these circumstances, satisfied that this writ
petition deserves to be dismissed. However, I may hasten to
observe that the dismissal of this writ petition will not in any way
fetter the rights of the petitioner to raise all the contentions
which he has already raised in support of his claim for discharge
before the learned Sessions Judge in the course of trial and claim
acquittal at the appropriate stage.
7. With the above observations, this writ petition is
dismissed.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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W.P.C.No.19428/08 7
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007