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Varghese vs State Of Kerala on 5 September, 2007

Kerala High Court
Varghese vs State Of Kerala on 5 September, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 2721 of 2007()


1. VARGHESE, S/O PAILY,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.K.A.SREEJITH

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :05/09/2007

 O R D E R
                          R.BASANT, J.
                       ----------------------
                    Crl.M.C.No.2721 of 2007
                   ----------------------------------------
            Dated this the 5th day of September 2007


                              O R D E R

The petitioner is the second accused in a prosecution under

Section 55(a) of the Abkari Act. Investigation was completed and

the final report was filed by the investigating officer. The trial

before the learned Sessions Judge has commenced also. At that

stage, the Prosecutor made a request that powers under Section

311 Cr.P.C may be invoked and ten bottles each from MO1

series, MO2 series, MO3 series and MO4 series may be sent for

chemical analysis. It was submitted that in the light of the

subsequent decision in Krishnankutty v. State of Kerala 2005(3)

KLT 568, it had become necessary for the prosecution to make

such a request. The learned Sessions Judge, by the impugned

order (a copy of which is produced as Anenxure A2), granted the

said request. The petitioner claims to be aggrieved by Annexure

A2 order.

2. What is the grievance? The learned counsel for the

petitioner submits that the court was only helping the

Crl.M.C.No.2721/07 2

prosecution to fill up the lacuna and plug the gaps in the

prosecution case. By doing so, the learned Sessions Judge has

deprived the petitioner of the right and opportunity to take up a

defence in the light of Krishnankutty v. State of Kerala 2005(3)

KLT 568. This procedure followed by the learned Sessions Judge

is incorrect and does warrant interference. The impugned order

may be set aside, it is prayed.

3. I have been taken through the impugned order. The

learned Sessions Judge has adverted to all the relevant aspects.

The learned Sessions Judge has taken note of the provisions of

Section 311 Cr.P.C and Section 165 of the Evidence Act.

Acquittal of the innocent and the conviction of the guilty are the

two inseparable duties of a criminal court. The necessity of one

is not to be squandered at the alter of the other. The learned

Sessions Judge has rightly noted that the investigator cannot be

found fault with for not making such a request earlier as the

requirement came to light only in the light of the said decision in

Krishnankutty v. State of Kerala 2005(3)KLT 568. There was

absolutely no attempt to fill up the lacuna or plug the gaps in the

prosecution case. Interests of truth and justice certainly

Crl.M.C.No.2721/07 3

demanded that a proper analysis of the contraband article was

conducted and relevant data was made available before the trial

court. The learned Sessions Judge, in passing the impugned

order, has not committed any error. At any rate, no failure or

miscarriage of justice can be said to have resulted by the

impugned order. The learned Sessions Judge has ample powers

under Section 311 Cr.P.C and 165 Evidence Act to justify the

passing of the impugned order.

4. This Criminal Miscellaneous Case is in these

circumstances dismissed.

(R.BASANT, JUDGE)
jsr

// True Copy// PA to Judge

Crl.M.C.No.2721/07 4

Crl.M.C.No.2721/07 5

R.BASANT, J.

CRL.M.CNo.

ORDER

21ST DAY OF MAY2007

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