IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 Crl.Rev.Pet.No. 1669 of 2007() ------------------------------ CC.483/2005 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................................................. REVN. PETITIONER(S): 2ND ACCUSED IN CC NO.483/2005 --------------------------------------------------------------------------------- RADHAKRISHNAN NAIR, S/O RAMAKRISHNA PILLAI, AGED 54 YEARS, SUB INSPECTOR, NEDUMANGAD POLICE STATION, RESIDING AT 'VAISHNAVAM', THACHOTTUKAVU, MALAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS SRI.AJITH MURALI RESPONDENT(S): COMPLAINANT IN CC 483/2005 ---------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. RITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK P.S. GOPINATHAN, J. --------------------- CRL. R.P. NO. 1669 OF 2007 ------------------------- DATED THIS THE 26th DAY OF OCTOBER 2009 O R D E R The revision petitioner is the 2nd accused in C.C No. 483 of 2005 on the file of the Judicial Magistrate of First Class, Kattakada. The Deputy Superintendent of Police, CBCID Unit, Thiruvananthapuram filed a chargesheet against the revision petitioner and 10 others alleging offence under sections 451,323,324 and 427 r/w. 34 of IPC. The revision petitioner is the 2nd accused and stated to be a Sub Inspector of Police. The allegation is that the the revision petitioner and other accused, at 1.30 a.m on 4-10- 2003 trespassed into the house of the eleventh accused in Crime No. 332 of 2003 and voluntarily caused hurt to witness No.6 in the chargesheet and also committed mischief. 2. Alleging that revision petitioner was in no way involved in the offence alleged and that there is no specific allegation against the revision petitioner to send him for trial, he filed CRL. R.P. NO. 1669 OF 2007 2 C.M.P. No. 647 of 2007 seeking an order of discharge under Section 239 of the Code of Criminal Procedure. By the order dated 2-3-2007 that petition was dismissed. 3. Assailing the legality, correctness and propriety of the above order this revision petition was filed. 4. According to the learned counsel for the revision petitioner, though there is an allegation in the chargesheet that revision petitioner had also assaulted CW6 and committed mischief, in her statement she did not mention the presence of the revision petitioner. In the test identification parade revision petitioner was not identified by the witnesses. Therefore, absolutely there is no allegation to send the revision petitioner for trial. 5. Para.6 of the order impugned reads as follows:- “ According to the prosecution, the police team headed by the petitioner along with A6,A7 and A11 raided the house of the A11 in Crime No. 332 of 2003, voluntarily caused hurt to the wife of the said Saidu (A11) and committed mischief. CRL. R.P. NO. 1669 OF 2007 3 It is true that CW6 could not identify this petitioner during the two days identification parades conducted. It is also true that no overt- act has been alleged against this petitioner. But on perusing the records, I find that a team of Police officials comprising A2, A6 and A11 was headed by this petitioner (A2). CW6 identified the policemen in the team of A2, as the person, who committed the offences. The incident was at. 1.30 A.M. CW6 could not identify all the members of the police team. But during investigation, it was found that the team was headed by A2, and A6, A7 and A11 were under the command of A2. From the facts and circumstances, it can be gathered that the police team which raided the house of Saidu shared the common intention commit the offences. If the petitioner had no intention at all to commit the said offences, nothing prevented this petitioner from disallowing A6, A7 and A11, from committing the offences at the residence of CW6. Solely on the ground that CW6 failed to identify this petitioner, it cannot be safely be concluded that the charge against this CRL. R.P. NO. 1669 OF 2007 4 petitioner is groundless. Regarding the involvement of this petitioner in the offence is only a matter of evidence. Hence I find that this is a pre-mature stage to conclude that the charge against the petitioner is groundless. Hence the petition is liable to be dismissed.”. There is mention that revision petitioner was involved with the offence alleged. The records from the lower court would contain the charge framed against the revision petitioner. Though the name of the revision petitioner is mentioned in the chargesheet there is no mention in the charge about any involvement of the revision petitioner. There is no mention that revision petitioner had any common intention. It is also pertinent to note that charge was not in the prescribed form. Hence it has become rather difficult to make head or tail out of it. 6. In the above circumstances I think that it would be appropriate to direct the trial court to reconsider the petition filed by the revision petitioner and to pass fresh order on CRL. R.P. NO. 1669 OF 2007 5 merit. In the result, the revision petition is allowed. While setting aside the order impugned,the matter is remanded back to the trial court for disposal afresh. The charge framed is also set aside. The trial court shall look afresh the records and prepare a proper charge in the proper form. P.S. GOPINATHAN JUDGE pkk