IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 CRL.A.No. 716 of 2002(C) --------------------------- (AGAinSt THE JUDGMent IN S.C.76/00 OF THE Court OF III ADDL. SESSIONS JUDGE(ADHOC) FAST TRAck Court-i, THRIssur) ............................. APPELLANT(S): ACCUSED NO.1: --------------------------- GANGADHARAN, S/O. CHELAKKAL PAPPU, MURIYAD DESOM, ANANDAPURAM VILLAGE. BY ADV. SRI.P.VIJAYA BHANU RESPONDENT(S): COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMED. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 716 OF 2002 = = = = = = = = = = = = = = = Dated this the 22nd day of May, 2009. J U D G M E N T This Crl. Appeal is preferred against the conviction and sentence passed in S.C.76/00 of the Court of 3rd Addl. Sessions Judge, (Adhoc) Fast Track Court-I, Thrissur. Two persons stood charge sheeted for offence u/s 58 of the Abkari Act. The learned Sessions Judge after trial found the 2nd accused is not guilty. He found that A1 is guilty of the offence u/s 58 of Abkari Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a period of six months. 2. The learned counsel appearing for the appellant had canvassed before me the legal infirmity committed by the Sessions Judge in this case. As per the legal provisions covered by various authorities, i.e., (Sivamani v. State of Kerala)1992 (2) KLT 227 and Chandran V. State of Kerala (2005 (4) KLT 962) it is argued that non compliance Crl.A. 716 OF 2002 -2- of statutory and mandatory provisions u/s 232 Cr.P.C. has resulted in miscarriage of justice and therefore the conviction and sentence requires interference on that technical ground alone. I had perused the proceedings paper in this case. On 30.7.2002 the Court examined PWs.1 to 5 and marked the documents, closed evidence for the prosecution and posted the case for questioning u/s 313 Cr.P.C. On 5.8.02 A1 present and A2 absent. Applies. Counsel for A2 to agreed to answer 313 question. Hence counsel for A2 is questioned. No defence evidence. For judgment on 9.8.02. The learned counsel had brought to my notice the decision referred to above and particularly the latest decision reported in Chandran V. State of Kerala. In paragraph 13 the Division Bench of this Court had discussed the matter as follows. “So the procedure to be followed is well settled. After questioning the accused under S.313 Cr.P.C. and after hearing the prosecution and the accused under S.232 Cr.P.C., if the Sessions Judge finds no grounds to acquit the accused, he is bound to call upon Crl.A. 716 OF 2002 -3- the accused to enter on his defence. The accused must be asked as to whether he intends to adduce evidence. If he intends to adduce evidence, a posting has to be given for adducing the evidence. It is not a concession given to the accused. It is a right conferred on him and that procedure has to be strictly followed. The record of questioning the accused in this case shows that no such question was put to the accused. No order contemplated under S.232 Cr.P.C. is seen passed in the proceedings paper. It is true that the Sessions Judge is not expected to pass a reasoned order why he is not acquitting the accused under S.232 Cr.P.C. but the proceedings paper must show that the Judge heard both sides and took a decision not to acquit the accused under S.232 Cr.P.C. That procedure was not followed in this case.” 3. Thus a reading of paragraph 13 makes it abundantly clear that it is incumbent upon the Sessions Judge to pass an order u/s 232 Cr.P.C. after questioning u/s 313 is done and on satisfaction that the accused is not entitled to an Crl.A. 716 OF 2002 -4- acquittal he is bound to give an opportunity and ascertain from the accused whether he intends to adduce evidence and if he wants, post it for defence evidence and thereafter to proceed u/s 233 Cr.P.C. and ultimately u/s 235 for the disposal of the matter. Unfortunately by the order dated 5.8.2002 it is seen that the learned Sessions Judge had not applied his mind under the provisions of 232 Cr.P.C. and further on account of the same had not asked the accused regarding whether he intends to adduce evidence in this case. The Court in a vague manner has recorded 'no defence evidence'. Therefore the decision of the Court suffers from serious infirmity of law which requires to be corrected. There are also legal points which the learned counsel for the accused want to raise. So the matter requires reconsideration at the hands of the Court below. Therefore the conviction and sentence passed by the trial court is set aside and the matter is remitted back to the Court below for complying with the mandatory provisions under S.232 Cr.P.C. and thereafter permit the prosecution as well as the defence to raise all legal Crl.A. 716 OF 2002 -5- points they rely on. The parties are directed to appear before the Court below on 30.6.2009. Needless to say, the appellant shall be at liberty to let in defence evidence if the Court below decides to proceed against him after passing an order under Section 232 Cr.P.C. and the Court shall endeavour to dispose of the matter within a period of three months from the date of first appearance of the parties. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 716 OF 2002 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 716 OF 2002 = = = = = = = = = = = J U D G M E N T 22nd May, 2009