IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.Rev.Pet.No. 4401 of 2007() ------------------------------ CRA.472/2002 of ADDL.SESSIONS COURT (ADHOC)-III, THALASSERY SC.6/1999 of ADDL.ASSISTANT SESSIONS COURT, THALASSERY .................... REVN. PETITIONER/APPELLANT/ACCUSED -------------------------------------- PUTHEN VEETTIL ACHU ALIAS ACHUTHAN, S/O.VASUDEVA PANICKER, AGED 41 YEARS, AGRICULTURIST, ULIKKAL, TALIPARAMBA, KANNUR DISTRICT. BY ADV. SRI.P.P.RAMACHANDRAN SRI.JAYANANDAN RESPONDENT(S): RESPONDENT/COMPLAINANT -------------------------- STATE OF KERALA (EXCISE INSPECTOR, SREEKANDAPURAM) REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 4401 OF 2007 ------------------------------------------ Dated this the 21st day of October, 2008 O R D E R Petitioner is the accused in S.C.6 of 1999 on the file of Additional Assistant Sessions Judge, Thalassery. Prosecution case was that on 15.7.1997 at about 11.30 a.m. petitioner was found possessing 170 packets of 100 ml Karnataka arrack in violation of the provisions of Abkari Act, in front of St.Mary's Timbers in Ulikkal Mattara road and thereby committed an offence under section 55(a) of Abkari Act. Petitioner pleaded not guilty. Prosecution examined 5 witnesses, marked 5 exhibits and identified 4 material objects. Though petitioner was called upon to adduce evidence, he did not adduce evidence. Learned Additional Assistant Sessions Judge on the evidence found him guilty. He was convicted and sentenced for the offence under section 55(a) of Abkari Act. Petitioner challenged the conviction before Sessions Court, Thalassery in Crl.Appeal 472 of 2002. Learned Sessions Judge on appreciation of evidence confirmed the conviction, but modified the sentence. It is challenged in the revision. CRRP 4401/07 2 2. Learned counsel appearing for petitioner pointed out that learned Sessions Judge after closing the prosecution evidence and questioning the accused without hearing the accused under section 232 of Code of Criminal Procedure, called upon the accused to enter on his defence and thereafter convicted the petitioner and there is violation of the mandatory provisions of section 232 of Code of Criminal Procedure and therefore the conviction is illegal. 3. Section 232 of Code of Criminal Procedure provides the procedure after closing the prosecution evidence. Under section 232 if after taking the evidence of the prosecution and examining the accused and hearing the prosecution and defence, if on consideration of the materials, Sessions Judge is of the opinion that there is no evidence to connect the accused with the offence, the Sessions Judge shall record an order of acquittal. Sessions Judge can proceed under section 233 of Code of Criminal Procedure and call upon the accused to enter on his defence and adduce evidence in support of his case, only after completing the stage under section 232 and finds that it is not a case where there is no evidence to connect the accused with the offence charged. CRRP 4401/07 3 4. Proceedings paper of the learned Assistant Sessions Judge shows that prosecution evidence was closed on 26.8.2002 and case was adjourned to 27.8.2002 for questioning the accused. Proceedings of 27.8.2002 reads: “Accused questioned under section 313 of Cr.P.C. For defence evidence. Adjourned to 28.8.2002.” On 28.8.2002 it was recorded: “No evidence for accused and case was posted for hearing to 31.8.2002.” On that date arguments were heard and posted for judgment to 5.9.2002. Therefore proceedings paper shows that after questioning the accused under section 313 of Cr.P.C., learned Assistant Sessions Judge did not hear the prosecution and the defence and straight way proceeded under section 233 and called upon the defence to adduce evidence. The procedure adopted by the learned Assistant Sessions Judge is illegal. Accused can be called upon to enter on his defence only after hearing the prosecution and the defence and Assistant Sessions Judge considers evidence and finds that it is not a case where there is no evidence to connect the accused with the offence. CRRP 4401/07 4 5. This aspect was considered by a Division Bench of this Court in Suresh v. State of Kerala (2006 (1) KLT 78). Following the decision of this Court in Radhanandan v. State of Kerala (1990 (1) KLT 516 and Sivamani v. State of Kerala (1992 (2) KLT 227) it was held that after examining the accused under section 313 Cr.P.C. the trial judge cannot straight away call upon to enter on his defence and non compliance of section 232 of Cr.P.C. is an infirmity which goes to the root of the matter with regard to the procedure followed by the trial judge. Unfortunately this aspect was omitted to be taken note of by the learned Sessions Judge. Revision is therefore allowed. Conviction and sentence passed by learned Assistant Sessions Judge as confirmed by learned Sessions Judge, without complying with the provisions of section 232 of Cr.P.C. is set aside. S.C. 6 of 1999 is remanded to Assistant Sessions Court, Thalassery to proceed from the stage under section 232. Assistant Sessions Judge is directed to hear the prosecution and the defence and thereafter consider whether it is a case for an order of acquittal. If there is no evidence connecting the accused with the offence, an order of acquittal is to be passed. If there is evidence, then the accused CRRP 4401/07 5 is to be called upon to enter on his defence and as provided under section 233. If accused adduces evidence, Assistant Sessions Judge shall then hear the arguments as provided under section 234 and pass a judgment either convicting or acquitting the accused as provided under section 235 of Cr.P.C. If the accused is to be convicted under section 235 (1) as provided under sub section 2 of Section 235 of Cr.P.C., he is to be heard on the question of sentence. Petitioner is directed to appear before Assistant Sessions Judge, Thalassery on 02.12.2008. Send back the records immediately. Assistant Sessions Judge is directed to dispose the case expeditiously. M. SASIDHARAN NAMBIAR, JUDGE Okb/-