High Court Kerala High Court

In The High Court Of Kerala At … vs State Of Kerala on 2 February, 2010

Kerala High Court
In The High Court Of Kerala At … vs State Of Kerala on 2 February, 2010
       

  

  

 
 
  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.
                    -------------------------------
                    Crl.R.P.No.166 of 2010
                    -------------------------------
          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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