IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 Crl.Rev.Pet.No. 2623 of 2010() ------------------------------ CC.1140/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... (O.R.NO.22/99 OF FOREST RANGE OFFICE, NELLIYAMPATHY RANGE) REVISION PETITIONER(S): A5,A6, A7 AND A8: ------------------------------------------------------------------- 1. BENNY, S/O.JOSEPH, PUNARTHANKUNNEL, VEEZHILY, ADIPPPARANDA, KAYARADI P.O. 2. SIVARAMAN, S/O.CHAMI, THENGUMPADAM, ADIPPARANDA, KAYARADI P.O. 3. SURESH, S/O.CHANDRAN, VEEZHILY, ADIPPARANDA, KAYARADI P.O. 4. GEORGE, S/O.MATHAI, KARIMANGOTTIL VEEDU, KAYARADI. BY ADVS. SRI.V.A.JOHNSON (VARIKKAPPALLIL), SRI.P.M.RAFIQ. RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.2623 of 2010 ------------------------------- Dated this the 7th day of September, 2010. O R D E R This revision petition is preferred by accused nos.5, 6, 7 and 8 in C.C.No.1140/04 pending before the Judicial First Class Magistrate Court-Alathur, since the learned Magistrate by his order dated 27.7.2010 rejected the plea of the revision petitioners for discharge. 2. C.C.No.1140/04 is instituted upon a complaint preferred u/s.27(1)(d) (e) (III) & IV 52 and 61(A) of the Kerala Forest Act 1961. The allegation against the accused including the revision petitioners is that, they cut one teak tree from 1963 Teak Plantation in Thiruvazhiyode section of Nelliyampathy Forest Range. During the course of investigation A1, A2 and A3 were arrested in connected with the said offence and based upon their confession statement, the recovery was effected from the house of A3. Beside the above recovery, the vehicle used for transiting the timber was also seized. On the basis of the confession Crl. R.P.No.2623 of 2010 2 statement given by the arrested accused, the revision petitioners herein were also arrayed as accused. 3. Part of an enquiry, upon a complaint, the prosecution adduced evidence u/s.244 of Cr.P.C., during which Pws.1 and 2 were examined and Exts.P1 to P5 were also marked. Thereafter at the time of framing the charge, the revision petitioners herein raised a plea before the trial court for their discharge, but such a prayer is rejected by the learned Magistrate as per Annexure-D order and hence this revision petition. 4. I have heard Mr.Johnson Varikkappallil, the learned counsel for the revision petitioners and the learned Public Prosecutor. 5. The learned counsel for the revision petitioners vehemently argued that, even going by the materials as on this stage, against the revision petitioners, except the confession statement of the co-accused, there is no other evidence or materials on record. In order to substantiate the above contention, the learned counsel took me through Annexure-D order of the learned Magistrate, in which the learned Magistrate rejected the plea for discharge, raised by the revision petitioners. Crl. R.P.No.2623 of 2010 3 The learned counsel also took me through other materials produced along with the revision petition. In support of the above submission, the learned counsel placed reliance upon the decision of the apex court in [1. Haricharan Kurmi 2. Jogia Hajam Vs. State of Bihar (AIR 1964 SC 1184)] and also the decision of this court reported in [Lizy Kurian Vs. State of Kerala (2004(3) KLT 442)]. On the strength of the above decisions, the learned counsel emphatically submitted that the order of the learned Magistrate is legally unsustainable, since even according to the learned Magistrate other than the confession statement of the co-accused, there is no evidence or materials. 6. On the other hand, the learned Public Prosecutor stoutly opposing the prayer, submitted that the contention of the learned counsel for the revision petitioners can not be entertained at this stage, since the evidence is yet to be adduced during the trial and at this stage, what the court below is expected to examine is, whether there is any materials to proceed further. According to the Public Prosecutor, the trial court considered the entire Crl. R.P.No.2623 of 2010 4 materials and evidence on record and came into an opinion that the evidence adduced by the prosecution will lead to the conviction of the accused. Therefore, according to the learned Public Prosecutor, no interference is warranted at this stage. 7. I have carefully considered the contentions advanced by the learned counsel for the revision petitioners as well as the learned Public Prosecutor and also perused the impugned order and the materials furnished along with the revision petition. Admittedly, the alleged offence even according to the prosecution was committed during the night and as part of the investigation, the teak wood which cut and removed from the government forest has already been recovered, in pursuance to the confession statement given by the arrested accused, namely A1 to A3. It is also a fact that the vehicle which used for the removal of the stolen teak woods has also been recovered and that too also on the basis of the confession statement of A1 to A3. It is also a fact that teak woods were seized from the house of A3 in pursuance to his own confession statement. Therefore, the facts recovered in pursuance to the confession statement made by the arrested accused shows, much reliability and Crl. R.P.No.2623 of 2010 5 acceptance. In the light of the above facts and circumstances and the materials and the contention of the learned counsel for the revision petitioners, the question to be considered is whether the revision petitioners are entitled to get a discharge at this stage. As I indicated earlier, the trial has not so far reached at the stage of evidence and the evidence are yet to be adduced during further trial. The admissibility and evidentiary value of the confession statement made by the other accused and how far the same can be accepted or used against the revision petitioners is a matter to be considered after the entire trial and at the time of appreciation of evidence. After the trial against the revision petitioners, the only evidence available is that of the confession statement of the co-accused, it is left open to the revision petitioners to bring up those matters to the court, which deals with the issue and to bargain for an acquittal. The decision relied on by the learned counsel for the revision petitioners and the facts and circumstances involved therein and the stage at which the issue considered is not similar to the present one and that decision was rendered by the constitution bench, when the challenge is against the conviction and sentence. The other Crl. R.P.No.2623 of 2010 6 decision relied on by the learned counsel is that of 2004(3) KLT 442 and the facts and circumstances involved in the other case, that reported in 2004(3) KLT 442, relied on by the learned counsel is not applicable in the present case. In the case cited, the petitioners approached this court by invoking jurisdiction of this court u/s.482 of Cr.P.C., against the trial, when there is already a judgment, by which the accused who had already faced the trial got an acquittal and the revision petitioner therein was implicated on the basis of the confession statement given by such acquitted accused. It is also relevant to note that, their confession statement is to the effect that the contraband article was entrusted with them by the revision petitioners who approached this court u/s.482 of Cr.P.C. It is under that factual background this court held that, the confession statement of the co-accused, who was acquitted against the revision petitioner can not be acted upon. So considering the particular factual background involved in those cases, it can be seen that the present case is entirely different from what contained in the above two decisions. 8. As I indicated earlier, in the present case now a charge Crl. R.P.No.2623 of 2010 7 is framed against the revision petitioners and other accused and it is for the revision petitioners to face the trial and at the time of appreciation of evidence and arguments, it is for them to convince the court about the paucity of legal evidence and to plea for an acquittal. In the result, I find no merit in the revision petition and accordingly the same is dismissed. The learned counsel for the revision petitioner submitted that, the revision petitioners may be exempted from their personal appearance during the trial. It is for the revision petitioners to make an application before the court concerned for their personal exemption and I am sure that the presence of the revision petitioner will not be insisted, on all occasions unless their presence is inevitable. Subject to the above observation, this revision petition is dismissed. V.K.MOHANAN, Judge. ami/