IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 Crl.Rev.Pet.No. 2402 of 2005() ------------------------------ SC.435/2003 of ASSISTANT SESSIONS COURT(PRL) , PALAKKAD CP.35/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONERS: ACCUSED NOS 2 AND 4 ---------------------------------------- 1. KUNHOOTTY @ SIRAJUDHEEN, S/O.ABBAS, AGED 32, KALATHODIPARAMBU, EDATHARA, PALAKKAD DISTRICT. 2. SUBAIR, S/O.KUNHUMUHAMMED, AGED 25 YEARS PACHAKKAL VEEDU, KAMBA, PALAKKAD. BY ADV. SRI.N.K.KARNIS SRI.LATHEESH SEBASTIAN RESPONDENTS: STATE AND COMPLAINANT ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY DIRECTOR GENERAL OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, HEMAMBIKA NAGAR POLICE STATION, PALAKKAD DISTRICT. R1 & R2 BY BY PUBLIC PROSECUTOR SMT. REKHA C. NAYAR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.15536/05 IN CRL.RP NO 2402/2005 DISMISSED. 2-6-2011 SD/- V.K. MOHANAN, JUDGE. V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2402 of 2005 ---------------------------------------- Dated the 2nd Day of June , 2011 ORDER This Crl.R.P is directed against the court charge dated 27.6.2005 framed in S.C.No.435 of 2003 by the Assistant Sessions Judge, (Prl.) Palakkad against four accused including the revision petitioners who are accused Nos. 2 and 4. The revision petitioners are accused Nos.2 and 4 in the above Sessions Case. According to the petitioners, as per the allegations and materials on record, the charge framed against the petitioners are illegal, improper and irregular and therefore, the same is liable to be set aside. 2. I have heard Sri N.K. Karnis, the learned counsel appearing for the petitioners as well as the learned Public Prosecutor. 3. S.C.No.435 of 2003 is instituted in the court of Asst.Sessions Judge(Prl.), Palakkad on the basis of the CRL.R.P 2402/05 -:2:- committal proceedings of the Judicial First Class Magistrate-III, Palakkad in C.P.No.35/2003 in crime No.194/2002 of Hemambika Nagar police station. Crime No.194/2002 of Hemambiika Nagar police station was registered for the offences punishable under section 376(g), 506(i), 120(b), 450, 447, 324 read with Section 34 of IPC. The allegation is that the first accused, trespassed into the house of CW1 bearing No.XV/534 at Pudupariyaram, Vallikot Valiyakattuparambu, on 8.6.2002 at 14.30 hours while CW1 was alone in the house and he bolted the door and induced CW1 by giving promise for marriage and committed rape on her and he had repeated the same on several occasions from 6.8.2002 to 21.9.2002. The allegations against A2 to A4 - A2 and A4 are the petitioners herein - are that when they came to know about the incident of the alleged rape by A1, they associated together and agreed to do illegal act and after one week, A3 CRL.R.P 2402/05 -:3:- trespassed into the house of CW1 and threatened her to flash the news of the earlier incident and forced to have sexual intercourse. In the same way, the second accused after 15 days committed the offence of the same nature. According to the police, A4 has also after one month trespassed into the house and threatened to disclose the previous incident and committed rape on CW1. There is also allegation against A1 to A4 of conspiracy and gang rape on 21.9.2002. It is the further case of prosecution that , when CW1 disclosed the incident to her father, on 29.9.2002 at 14.30 hours, he questioned A3 and enquired about the first accused resulting in an altercation and A1 and A3 in furtherance of their common intention trespassed into the courtyard of CW1's house and voluntarily caused hurt to CW1 and CW2 by using deadly weapons and thus A1 and A3 committed the offences punishable under sections 447, 324 read with Section 34 of IPC. It is on CRL.R.P 2402/05 -:4:- the basis of the above allegation, the learned Sessions Judge framed the charge dated 25.6.2005 which is under challenge in this Crl.R.P. 4. Heard the counsel for the petitioners as well as the learned Public Prosecutor. 5. The learned counsel for the petitioners vehemently submitted that the prosecution has no allegation that A2 and A4, the revision petitioners herein, had involved in the incident which allegedly taken place at 2.30 p.m. on 29.9.2002 and therefore, the charge clubbing of that incident and offences along with other incidents and offences are liable to be quashed in view of Section 218 of Cr.P.C. On the other hand, the learned Pubic Prosecutor submitted that in view of Section 220 absolutely, there is no illegality with the charge challenged in this Crl.R.P and the incident that took place on 29.9.2002 at 2.30 p.m. is part of the entire case and therefore, there is no scope CRL.R.P 2402/05 -:5:- for any interference. 6. I have carefully considered the arguments advanced by both the counsel for the petitioners as well as the Public Prosecutor. I have perused the charge framed by the learned Sessions Judge and also perused the materials made available to me. 7. Going by Annexure A2 police report, it can be seen that there is no allegation against the petitioners that they have involved in the alleged incident that taken place on the courtyard of the house in question at 2.30 p.m. on 29.9.2002. According to the prosecution, the said incident had taken place as part of the incident that happened on 8.6.2002 and thereafter, the offences were continued and committed on various dates. From the materials available on record, it can be seen that there is allegation against the revision petitioners, who are accused Nos. 2 and 4, that they have committed the CRL.R.P 2402/05 -:6:- offence of rape on CW1. But it is pertinent to note that there is no allegation that they have involved in the incident that taken place on 29.9.2002 on the courtyard of the house of CW1 and CW2, wherein the offences allegedly involved are under sections 447, 324 read with Section 34 of IPC . In this juncture Section 218 of Cr.P.C is relevant which reads as follows: “218. Separate charges for distinct offences.- (1) for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person. (2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220, 221 and 223.” On a plain reading of the above Section it is crystal clear that there shall be separate charges for every distinct offence and every such charge shall be tried separately if the CRL.R.P 2402/05 -:7:- offences involved are distinct. Whereas Section 220(1)reads as follows: “220. Trial for more than one offence.- (1) If in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.” (emphasis supplied) As per the above sections, if one series of acts together form the same transaction, and more offences than one are committed by the “same person”, he can be charged at one trial for every such offences. So according to me on a reading of Section 220, even if the offences are distinct, but part of the same series of act, the accused can be tried together only if the accused are same persons/person. 8. In the light of Section 218, and 220 Cr.P.C, and in view of the prosecution allegations, I am of the view that it is for the learned Sessions Judge to reconsider CRL.R.P 2402/05 -:8:- the matter afresh and to frame charge, accordingly. In the result, this Crl R.P. is disposed of setting aside the charge dated 22.6.2005 framed by the learned Assistant Sessions Judge (Prl.), Palakkad, and remanded the matter for fresh consideration and for framing of charge afresh and to dispose of the matter in accordance with law and procedure after hearing the prosecution as well as the defence including the petitioners. Since the Sessions Case is pertained to the year 2003, the learned Sessions Judge is directed to expedite the disposal of the matter including the trial of the Sessions case as expeditiously as possible. V.K.MOHANAN, JUDGE kvm/- CRL.R.P 2402/05 -:9:-