IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 WP(C).No. 19428 of 2008(K) -------------------------- AGAINST THE ORDER DATED 15/04/2008 IN CRMP 366/08 IN SC.497/2007 of ADDL. DIST. COURT (ADHOC)III, PATHANAMTHITTA .................... PETITIONER: ------------ ASHOKAN, AGED 38 YEARS, S/O.CHELLAPPAN, MALLASSERY HOUSE, EZHAMKULAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.K.MADHUSOODHANAN NAIR RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY DY.SP, CBCID, KOTTAYAM THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, ADOOR POLICE STATION. (CRIME NO.321 OF 1998 OF ADOOR POLICE STATION). BY GOVERNMENT PLEADER SRI.GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- W.P.C.No.19428 of 2008 ---------------------------------------- Dated this the 27th day of June 2008 J U D G M E N T The petitioner has come to this court with this petition under Article 226 or 227 of the Constitution of India. He along with the co-accused faces indictment for offences punishable inter alia under Section 307 read with 149 I.P.C. He prays that the case against him may be quashed. 2. The alleged incident took place on 01/07/1998. The F.I.R was registered on 2/7/1998. In the F.I.S the petitioner is not named as an accused. The local police conducted investigation. They filed a final report in which the petitioner was not arrayed as an accused. Cognizance was taken and committal proceedings was registered. In the meantime as per the orders of the Director General of Police further investigation under Section 173(8) Cr.P.C commenced and the Crime Branch C.I.D took over the investigation. After completing the further investigation, further final report Ext.P6 was submitted by the investigating officer . Two accused from the array of accused in the initial final report filed by the local police were deleted and W.P.C.No.19428/08 2 two others including the petitioner herein were brought on the array of accused. On the further final report, cognizance was taken against the petitioner. The case was committed to the court of Session. The petitioner had come to this court earlier and he was directed to raise his plea at the stage of 227 Cr.P.C. before the Sessions Court. The petitioner raised his objections before the Sessions Court and the learned Sessions Judge by the impugned order (a copy of which is produced as Ext.P3) took the view that the charges are liable to be framed and the petitioner is not entitled to be discharged. A detailed order is seen passed. 3. The petitioner claims to be aggrieved by the impugned order passed by the learned Sessions Judge refusing to discharge him under Section 227 Cr.P.C. The learned counsel for the petitioner marshals several facts in support of his contentions that the petitioner is innocent and he does not deserve to stand an unjustified trial against him. The learned counsel for the petitioner first of all points out that the petitioner is not named in the F.I.R. He further points out that at the relevant time, the petitioner must have been in the hospital W.P.C.No.19428/08 3 undergoing treatment. He then submits that no specific overt act is alleged against the petitioner in the statements of the witnesses and two of the accused persons who have been dropped from the array of accused are persons against whom specific overt acts were alleged earlier. The learned counsel for the petitioner also points out that there is discrepancy in the date throwing serious doubt on the acceptability of further 161 statements of the witnesses recorded in the course of Section 173(8) Cr.P.C examination. The learned counsel for the petitioner submits that the Director General of Police appears to have ordered further investigation only on 23/12/2000 and the court had accepted report of re-investigation under Section 173 (8) Cr.P.C only on 28/2/2001 though the petitioner is shown to have been brought on the array of accused much earlier as per a report dated 23/8/2000. The learned counsel for the petitioner also wants the court to take note of the fact that the wound certificate would suggest that the petitioner was already before the doctor undergoing treatment at the time when the incident in this case is alleged to have taken place. W.P.C.No.19428/08 4 4. The matter stands listed for trial to 4/7/2008. There are as many as 24 accused persons facing trial now. Witnesses have been summoned to appear. 5. I have gone through the order passed by the learned Sessions Judge rejecting the claim of the petitioner to be discharged under Section 227 Cr.P.C. I note that the learned Sessions Judge have adverted to all the relevant aspects though final conclusions have not been rendered on the acceptability of the contentions raised by the petitioner. I am of the opinion that the learned Sessions Judge was absolutely correct in resorting to that course as at the stage of Section 227 Cr.P.C all the questions raised need not be finally resolved. All that need be considered at the stage of 227 Cr.P.C is whether sufficient grounds have been made out to proceed against the indictee. The petitioner shall be at liberty to raise all his contentions in the course of the trial and satisfy the learned Sessions Judge that the case against him should be discarded and not be accepted for the reasons which he has urged. At the present stage and with the available inputs final decision cannot be taken on those contentions raised and the petitioner cannot be exonerated and W.P.C.No.19428/08 5 premature termination of proceedings against him cannot be brought about by discharge under Section 227 Cr.P.C. 6. I am, in these circumstances, satisfied that this writ petition deserves to be dismissed. However, I may hasten to observe that the dismissal of this writ petition will not in any way fetter the rights of the petitioner to raise all the contentions which he has already raised in support of his claim for discharge before the learned Sessions Judge in the course of trial and claim acquittal at the appropriate stage. 7. With the above observations, this writ petition is dismissed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.19428/08 6 W.P.C.No.19428/08 7 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007