IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 Crl.Rev.Pet.No. 1957 of 2005() ------------------------------ CC.128/1995 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MANNARKAD .................... REVN. PETITIONER(S): DEFECTO COMPLAINANT: ----------------------------------------- K. BALA THARAKAN, KODIKANNATH HOUSE, EDATHANATTU KARA, P.O. VATTAMANNAPURAM (VIA) ALANALLUR, PALAKKAD DISTRICT. BY ADV. SMT.VANAJA MADHAVAN RESPONDENT(S)/ACCUSED & COMPLAINANT: --------------- 1. GANGADHARAN S/O. VELU NAIR, POOLAKKAL HOUSE, EDATHANATTUKARA P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT. 2. VENUGOPALAN, S/O. GOPALA KRISHNAN PALAKKAL HOUSE, EDATHANATTU KARA, MANNARKKAD TALUK, PALAKKAD DISTRICT. 3. STATE OF KERALA REP. BY S.I. OF POLICE, NATTUKAL, MANNARKKAD. ADV. SRI.K.V.SOHAN FOR R1 & R2 PUBLIC PROSECUTOR C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.1957 OF 2005 ------------------------------------------ Dated 20th January 2009 O R D E R Revision petitioner is the defacto complainant in C.C.128/1995 on the file of Judicial First Class Magistrate, Mannarkkad. Respondents 1 and 2 are the accused. Charge against respondents 1 and 2 was that they committed offences under Sections 435, 447 and 427 read with Section 34 of Indian Penal Code. Prosecution case was that in furtherance of their common intention respondents 1 and 2 trespassed into the rubber plantation of revision petitioner at 9 p.m on 13/1/1995 and cased mischief by fire and damages by causing and destroying the granite posts to the tune of Rs.2,000/- and thereby committed the offences. After the charge was framed and case was pending for trial, as per judgment dated 29/12/1999 learned Magistrate acquitted revision petitioners following Raj Deo Sharma (II) v. State of Bihar (1999 (7) SCC 604) holding that two years were over after the charge was framed. The order is challenged CRRP 1957/05 2 in this revision filed on 17/11/2000. 2. When the revision petition was pending Apex court over ruled the earlier decision in Common Cause Cases I and II and Raj Deo Sharma's Case I and II. Learned counsel appearing for revision petitioner argued that in view of the decision of Apex court in Ramachanra Rao v. State of Karnataka (2002 (2) KLT 189 SC) the order of acquittal is not sustainable and the case is to be remanded for fresh disposal in accordance with law. 2. Learned counsel appearing for respondents 1 and 2 argued that though the decision relied on by the learned Magistrate was subsequently over ruled by the Apex court in Ramachandra Rao's case, as clarified in paragraph 37 of the judgment when the order of acquittal has become final, it cannot be set aside with a direction to reopen the trial and therefore the revision is only to be dismissed. Argument of learned counsel is that what is provided under paragraph 37 of the judgment is that if following the authority of Common Cause cases or Raj Deo Sharma's cases an accused was acquitted, that order of acquittal cannot be set aside and case cannot be reopened for further trial. Learned CRRP 1957/05 3 counsel argued that finality provided in paragraph 37 is finality before the trial court and as respondents 1 and 2 were already acquitted, based on Ramachandra Rao's case the order of acquittal cannot be set aside. 2. It cannot be disputed that in view of the declaration of law by the larger Bench in Ramachandra Rao's case, decision in Common Cause cases or Raj Deo Sharma's cases are no longer good law. When the order of acquittal is based on Raj Deo Sharma (II) case which was subsequently over ruled by the decision in Ramachandra Rao's case, the order of acquittal is bad. As interpreted by the learned counsel, based on that decision the order of acquittal cannot be set aside in view of the clarification in para 37. Question is whether the clarification is applicable to all orders of acquittal or discharge or only to those orders of acquittal or discharge which has become final on the date of pronouncement of the law by the Apex court in Ramachandra Rao's case. Paragraph 37 of the judgment reads; “37. And lastly, it is clarified that this decision shall not be a ground for re-opening a case or proceeding by setting aside any such CRRP 1957/05 4 acquittal or discharge as is based on the authority of 'Common Cause' and ‛Raj Deo Sharma's cases’ and which has already achieved finality and reopen the trial against the accused therein.” If the argument of the learned counsel appearing for respondents 1 and 2 is to be accepted, there is no necessity for further clarification in paragraph 37 that cases which has already achieved finality and the reference on the orders of acquittal or discharge “which has already achieved finality” is redundant. From the very fact that clarification is to the effect that the order of acquittal or discharge based on the authority of Common Cause or Raj Deo Sharma's case, which has already achieved finality, makes it absolutely clear that clarification is applicable only in respect of those cases where either the order of acquittal or order of discharge has achieved finality as they remained unchallenged on the date of pronouncement of the decision in Ramachandra Rao's case. Admittedly this revision was pending, when the decision in Ramachandra Rao's case was pronounced by the Apex court. Therefore, CRRP 1957/05 5 it cannot be said that the order of acquittal has achieved finality before the pronouncement of law, in Ramachandra Rao's case. If so, the clarification in paragraph 37 is not applicable to this case as the order of acquittal was challenged in the revision which was pending and so has not achieved finality. Therefore, when Apex court declared that the decision in Raj Deo Sharma's case II which was followed by the learned Magistrate for acquitting respondents 1 and 2 is not good law, the order of acquittal is illegal and can only be set aside. Revision is allowed. Order of acquittal passed by Judicial First Class Magistrate, Mannarkkad dated 29/12/1999 is set aside. C.C.128/1995 is restored to file and is remanded to Judicial First Class Magistrate, Mannarkkad for fresh disposal in accordance with law. Respondents 1 and 2 are directed to appear before the Judicial First Class Magistrate, Mannarkkad on 5/3/2009. The Magistrate to dispose the case expeditiously. M.SASIDHARAN NAMBIAR, JUDGE. uj. CRRP 1957/05 6