IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 Crl.MC.No. 580 of 2006(B) ------------------------- SC.143/1998 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY .................... PETITIONER(S): ACCUSED 2 TO 9: --------------------------------------- 1. CHENAKKALAYIL BALAN, S/O. KUNJAMBU, AGED 55, CHENAKKALAYIL HOUSE, PUTHOOR AMSOM, KUTTERI. 2. THAZHEPURAYIL ASHOKAN, S/O. KUMARAN, AGED 36, THAZHEPURAYIL HOUSE -DO-. 3. CHENAKKALAYIL KRISHNAN, S/O. KUNJIKUTTY, AGED 55, CHENAKKALAYIL HOUSE -DO-. 4. O.C. NAVEEN CHAND, S/O. GOPI, AGED 45, OTTATHAIYYULLIL CHENAKKALAYIL HOUSE -DO-. 5. O.C. SUDHEER, S/O. GOPI, AGED 33 -DO-. 6. VALIYAPARAMBATH VINAYAN, S/O. NANU, AGED 42, VALIYAPARAMBATH HOUSE, -DO-. 7. KUNNOTHU KUNDIL SUKUMARAN, AGED 29, S/O. KUNJAMBU, KUNNOTHU KUNDIL HOUSE, -DO-. 8. VILLANTEVIDA ANEESH, S/O. CHANTHAMAN, AGED 29, VILLANTEVIDA HOUSE, -DO-. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI RESPONDENT(S): COMPLAINANT: --------------------------- 1. STATE OF KERALA TO BE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. Crl.MC.No. 580 of 2006(B) 2 2. CIRCLE INSPECTOR OF POLICE, PANOOR POLICE STATION. ADDL.R3 IMPLEADED: 3. VINOD C., AGED 28 YEARS, S/O KELU, PARAYULLA PARAMBU HOUSE, PUTHOOR AMSOM, KOOTTERI DESOM, THALASSERY. (ADDL.R.3 IMPLEADED AS PER ORDER DATED 17.2.09 ON CRL.M.A.NO.3723/06) PUBLIC PROSECUTOR SHRI THOMAS JOHN AMBOOKKEN FOR R1 & R2 SRI.S.RAJEEV FOR ADDL.R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/02/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.921/06 IN CRL.M.C.NO.580/06 //DISMISSED// 24.2.09 SD/-M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.580 OF 2006 ----------------------------------------------------- DATED THIS THE 24TH DAY OF FEBRUARY , 2009 O R D E R Petitioners 1 to 8 herein are accused Nos.2 to 9 respectively in S.C.No.143/98 pending before the Additional Sessions Court (Ad hoc-I), Thalassery. The prayer in this petition filed under Section 482 of Cr.P.C. is to set aside that portion of the charge produced as Annexure-IV so far as it relates to the petitioners herein for the offence under Section 148 read with Section 149 of IPC. 2. Heard the learned counsel appearing for the petitioners and the 3rd respondent, who is the son of deceased Kelu, the victim in this case. Heard the learned Public Prosecutor also. 3. The facts of the case as stated in this petition is not in dispute. Originally, as per Annexure I, charge has been framed against A1 to A9 by the learned Additional Sessions Judge, Thalassery in S.C.No.143/93 for the offences under sections 143 and 302 read with Section 149 of IPC and under sections 3 and 5 CRL.M.C.No.580/06 -2- of Explosive Substances Act read with Section 149 of IPC. The petitioners herein and the first accused were tried accordingly and Annexure-II judgment has been passed on 9.1.2003 by the learned Additional Sessions Judge(Ad hoc-I), Thalassery whereby all the accused were convicted as follows: “ In the result, I sentence the first accused to undergo imprisonment for life and also to pay a fine of Rs.25,000/- in default to undergo simple imprisonment for one year u/s 302 IPC. The accused 2 to 9 are sentenced to undergo rigorous imprisonment for 10 years each and also to pay a fine of Rs.10,000/- each in default to undergo simple imprisonment for one year each, u/s 302 r/w 149 IPC. The accused are further sentenced to undergo rigorous imprisonment for 5 years each u/s 3 and 5 of the Explosive Substances Act each and also to pay a fine of Rs.5,000/- under each count, in default to undergo simple imprisonment for six months each. If the fine amount is realised it shall go to the legal heirs of the deceased by way of compensation u/s 357 Cr.P.C. The accused are further sentenced to undergo simple imprisonment for six CRL.M.C.No.580/06 -3- months each u/s 148 IPC. The substantive sentences are run concurrently. No separate punishment is awarded u/ss.143 and 147 IPC. The accused are entitled for set off for the period of remand undergone by them during the investigation and trial. Mos 1 to 7 being valueless shall be destroyed.” Thus, it is evident that all the accused were convicted and sentenced to undergo simple imprisonment for six months each under Section 148 of IPC along with other conviction and sentence in respect of offence under other sections of IPC. Thereafter, accused 1 to 9 challenged Annexure II judgment before this Court and as per judgment dated 6.9.05 in Crl.Appeal No.182/2003, copy of which is produced as Annexure-III, the following direction was made, which is noted in paragraph 27 as follows: “The conviction of all the accused for the offence punishable under Section 148 of the Indian Penal Code without a finding that those who were so convicted were armed with deadly weapons is also unsustainable. Persons not armed with deadly weapons cannot be convicted under Section 148 IPC with the aid of Section 149 IPC for the CRL.M.C.No.580/06 -4- mere reason that they were members of an unlawful assembly. (See Vijayan v. State of Kerala -1959 KLT 704 (last para), Picharu Bhati and others v. State of Orissa – 1964 (1) Crl.L.J.117 , In re P.Abdul Sattar and others – AIR 1961 Mysore 57, In re Muthusami Goundan and others – AIR 1942 Madras 420 and Kabul Singh and Others v. State of Punjab 1995 SCC (Crl) 1035).” This Court noticed the illegalities and infirmities committed by the court below and the conviction entered and the sentence passed against the appellants were set aside and the matter was remitted to the court below for fresh disposal according to law. It was also directed that it shall be open to the court below to alter the charge, if necessary, and in that case to provide an opportunity to the accused to recall any witness which they might pray for. It was also found that a re-trial or de novo trial is not necessary. In pursuance of that direction, the learned Additional Sessions Judge (Ad hoc-I), Thalassery has framed charge afresh as revealed from Annexure-IV on 12.1.2006 for the offence against all the accused 1 to 9 under sections 143, 147, 148, 307 and 302 read with Section 149 of IPC and under sections 3 and 5 of Explosive Substances Act. That charge is challenged by the CRL.M.C.No.580/06 -5- petitioners in this petition. 4. It is submitted by the learned counsel appearing for the petitioners that even according to the prosecution there was no case that any other accused apart from the first accused were in possession of any deadly weapons and as such no charge under Section 148 can be framed against the petitioners herein simply because they were members of the unlawful assembly and with the aid of Section 149. 5. It is submitted by the learned counsel appearing for the 3rd respondent that whether sufficient ingredients are there to attract the offence under Section 148 of IPC is not before this Court. Further some illegalities were committed by the learned Additional Sessions Judge while framing charge afresh as per Annexure-IV without looking into the specific direction of this Court as mentioned in paragraphs 27 and 30 of the judgment Annexure-III. It is revealed from paragraph 30 of Annexure-III that the direction given to the court below was to “alter the charge, if necessary, and in that case, provide an opportunity to the accused to recall any witnesses which they might pray for”. If that be the case, the relevant Section to be applied by the learned Additional Sessions Judge is Section 216 of Cr.P.C. and not Section 228 of Cr.P.C. This should be corrected for which Annexure-IV CRL.M.C.No.580/06 -6- charge sheet has to be set aside as such and a direction should be given to the learned Additional Sessions Judge(Ad hoc-I), Thalassery to alter the charge, if necessary as directed by this Court in paragraph 30 of the judgment in Crl.Appeal No.182/2003 dated 6.9.2005. This course is not opposed by the learned counsel appearing for the petitioner. In the result, the Crl.M.C. is allowed. Annexure-IV charge sheet is set aside and the learned Additional Sessions Judge(Ad hoc-I), Thalassery is directed to alter the original charge Annexure-I framed by that court on 23.10.2001 by considering the materials on record in accordance with law, keeping in mind the observations of this Court in paragraphs 27 and 30 of Annexure III judgment dated 6.9.2005 in Crl.Appeal No.182/2003 and after hearing the learned Public Prosecutor on the side of the prosecution and also the learned defence counsel for accused 1 to 9. M.C.HARI RANI, JUDGE. dsn