IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 Crl.Rev.Pet.No. 881 of 2011() ----------------------------- AGAINST THE ORDER DATED 22/02/2011 IN CRMP.1816/2010 IN LPC.2/1996 of ASSISTANT SESSIONS COURT, PAYYANNUR .................... REVN. PETITIONERS: PETITIONER/ACCUSED NO.2 -------------------------------------------- M.K.WAHAB, AGED 34 YEARS, S/O.MUHAMMED KUNJU, VADAKUMBAD, MUNDAMKUZHIYIL, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENTS: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P No.881 of 2011 ---------------------------------------- Dated the 29th Day of March , 2011 ORDER The 2nd accused in crime No.392/1991 of Payyannur Police station, who is the 2nd accused in S.C.No. 151 of 1993 of the court of Assistant Sessions Judge, Payyannur, is the revision petitioner. His grievance is that though he had preferred an application, i.e., Crl.M.P.No.1816/10 before the above Sessions court,wherein S.C.No.151/93 is pending for consideration, for a discharge under section 227 Cr.P.C, the same was dismissed. 2. I have heard the counsel for the petitioner and also the learned Public Prosecutor. 3. The prosecution case is that on 9.12.91 at about 1.00 p.m., the accused, 9 in number, armed with deadly weapons, unlawfully assembled and illegally trespassed into the residential house of the de facto complainant and the accused manhandled the mother, husband and children of the de facto complainant and caused damages to the household Crl.R.P..No.881/11 -:2:- articles and set fire to her house and, as a result of which , the de facto complainant sustained loss to the tune of Rs.50,000/- and thereby the accused committed the offences punishable under sections 143, 147, 148, 448, 427, 323 and 436 read with Section 149 of the Indian Penal Code. The present revision petitioner was absconding but the trial of S.C.No.151 of 1993 had continued against the available accused. Finally the court acquitted 5th accused who faced the trial. It is on the basis of the above order of acquittal, according to the petitioner herein, who is the 2nd accused in the above crime, is entitled to get a discharge under section 227 Cr.P.C. 4. In this juncture it is relevant to note that before preferring the petition for discharge in the trial court, the petitioner had approached this Court by filing Crl.M.C.No.4727 of 2010 which is a petition under section 482 Cr.P.C seeking bail and also for a direction directing the Assistant Sessions Judge to hear the petitioner on the next posting date on his claim for discharge. This Court by annexure-II order Crl.R.P..No.881/11 -:3:- observed that, when an application for bail is rejected, remedy of the petitioner is not to file a petition under section 482 Cr.P.C, but to approach the superior court for bail. This court also had directed the Assistant Sessions Judge, Payyannur to here the prosecution and the defence on the question of discharge under section 227 of Code of CR.P.C and decide whether the petitioner is to be discharged or charge is to be framed. The learned counsel on the strength of Annexure-I judgment submitted that even if the petitioner is forced to face the trial, no purpose will be served, especially in the light of the deposition of the witnesses who were examined in Annexure-I case. 5. On the other hand, The learned Public Prosecutor submitted that in view of the decision of this court in Moosa v. Sub Inspector of Police (2006 (1) KLT 552 (F.B), judgment of acquittal of a co-accused is not admissible or not a bar for subsequent trial of absconding co accused. 6. I have carefully considered the arguments advanced by both the counsel for the petitioner and the learned Public Crl.R.P..No.881/11 -:4:- Prosecutor. 7. Following the decision of the Full Bench of this Court in Moosa v. Sub Inspector of Police (cited supra), I am of the view that the petitioner is not entitled to get an acquittal or a discharge at this stage based upon Annexure I judgment or the deposition of witnesses those who are examined in that case. I am not proposed to go into the details of the facts and circumstances involved in the case and the merits of the arguments advanced by the learned counsel based upon the deposition of the witnesses examined therein, since such an attempt will likely to adversely affect either the defence or the prosecution. The position is now well settled in view of the above Full Bench decision of this Court. The documents and the records contemplated under section 227 Cr.P.C are the documents furnished by the Police after investigation along with the report. While considering the Crl.R.P or petition under section 482 Cr.P.C, the High Court will not be in a position to profess what would be the deposition of the witnesses before the court, during the trial. Crl.R.P..No.881/11 -:5:- The deposition of one particular witness, may not be or need not be the same, in case he is examined in the same case but in a different trial and the earlier deposition of the same witness will not assume the character of the evidence in a different case unless the said witness is examined and those deposition is confronted or approved by the said witness. It is thereafter for the trial court to appreciate those evidence and to come into a conclusion as to whether there are sufficient legal evidence to convict the accused or to record an acquittal. So at the stage of framing the charge, the deposition of witness in another trial is not a document or material as contemplated under section 173(2) of Cr.P.C for the purpose of framing charge, unless the same is produced by the prosecution along with the report. In the result, I find no merit in the Crl.R.P. and accordingly, the same is dismissed. In the light of the submission made by the counsel for the petitioner, I have no hesitation to observe that, it is open for the petitioner to approach the trial court to exempt him Crl.R.P..No.881/11 -:6:- from personal appearance before the trial court at the time of framing of charge and in case such a petition is filed, it is for the trial court to take a decision on merit thereon. V.K.MOHANAN, JUDGE kvm/-