Kerala High Court
Prasanna vs The State Of Kerala on 10 June, 2025
Crl.R.P.273/2012
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 10TH DAY OF JUNE 2025 / 20TH JYAISHTA, 1947
CRL.REV.PET NO. 273 OF 2012
AGAINST THE JUDGMENT DATED 02.12.2011 IN Crl.A NO.277 OF 2010 OF
SESSIONS COURT, KASARAGOD ARISING OUT OF THE JUDGMENT DATED 07.08.2010
IN SC NO.627 OF 2007 OF ASSISTANT SESSIONS COURT, HOSDRUG
REVISION PETITIONER/APPELLANT/ACCUSED:
PRASANNA, AGED 35 YEARS
W/O.KUNHIKANNAN, R/A.MUTTICHARAL,
GURUPURAM, BELOOR VILLAGE
BY ADVS.
SRI.T.K.VIPINDAS
SRI.K.M.HASHIR
SRI.K.M.MUHAMMED HUSSAIN
SMT.P.K.PRIYA
SRI.K.V.SREE VINAYAKAN
RESPONDENT/RESPONDENT/COMPLAINANT:
THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
OTHER PRESENT:
SMT.MAYA.M.N-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
10.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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ORDER
This criminal revision petition is preferred impugning the
judgment of the learned Sessions Judge, Kasaragod in Crl.A.No.277/2010.
2. The revision petitioner herein is the sole accused in
Crime No.40/2004 of Hosdurg Excise Range registered for offence
punishable under Section 55(a)of the Abkari Act.
3. The prosecution case is that, on 15.12.2004 at about
11.45a.m., the accused was found in possession of about 5 liters of arrack
in a jerry can near to Haripuram Mahavishnu Temple at Muttuchira, in
contravention of the provisions of the Abkari Act and Rules.
4. The learned Judicial First Class Magistrate, Hosdurg
took cognizance of the offence as C.P.No.60/2007. Thereafter, the case
was committed to the Sessions Court, Kasaragod. The Court of Sessions,
Kasargod made over the case to the Assistant Sessions Court, Kasargod for
trial and disposal.
5. The trial court convicted and sentenced the accused to
undergo simple imprisonment for three months and to pay a fine of
Rs.1,00,000/-, in default to undergo simple imprisonment for one month.
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6. The appellate court confirmed the conviction and
sentence. Impugning the judgment of the learned Sessions Judge, the
accused preferred this revision.
7. Before the trial court, PWs.1 to 6 were examined,
Exts.P1 to P13 were marked. PWs.1 and 2 are the Preventive Officers. PW1
detected the offence. PW3 is one of the independent attestors to Ext.P2
seizure mahazar. PW5 is the Village Officer who prepared Ext.P11 site plan
and PW6 is the Investigating cum Charging Officer.
8. After the closure of the prosecution evidence, the
accused was questioned under Section 313(1)(b) of the Code of Criminal
Procedure. After full fledged trial, the Sessions Judge convicted and
sentenced the accused as aforesaid.
9. I have heard Adv. Maya M.N., the learned Public
Prosecutor and Adv.T.K.Vipindas, learned counsel appearing for the revision
petitioner.
10. The learned Public Prosecutor submitted that the
impugned judgment is legally sustainable and no interference, whatsoever, is
warranted in this matter. He further submitted that the prosecution has
succeeded in alleging and proving the charge against the revision petitioner.
11. Per contra, the learned counsel for the revision
petitioner submitted that the impugned judgment is illegal, irregular and
improper. Both the trial court and the appellate court had failed to note the
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illegalities and improprieties in this case. The learned counsel further
submitted that the prosecution has failed to allege and prove the charge
against the accused beyond reasonable doubt. He submitted that the
penal statutes are to be interpreted strictly within the four corners of the
Statute. Suspicion, however strong it may be, it would not be a substitute
for proof. The impugned judgment is based on surmises and conjectures.
12. I have heard the rival submission of the counsel for the
parties and perused the records.
13. The learned counsel for the revision petitioner
contended that the investigation in this case was done after a lapse of two
years ie on 20.02.2007, but the incident occurred on 15.12.2004. The
delay caused in investigation, ie., particularly with regard to the
questioning of the material witnesses and their statements, after a gap of
two years, would be fatal to the prosecution story. That itself cuts the very
root of the prosecution story.
14. Before further discussion, it may be useful to extract
the relevant provisions of the Code of Criminal Procedure and Abkari Act.
Section 173(1) of the Code of Criminal Procedure says that investigation
should be completed without unnecessary delay.
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“173. Report of police officer on completion of
investigation.–
(1) Every investigation under this Chapter shall be
completed without unnecessary delay.
(1A) The investigation in relation to 3 [an offence under
sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB
or 376E] from the date on which the information was recorded
by the officer in charge of the police station.]
(2) (i) As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to
take cognizance of the offence on a police report, a report in
the form prescribed by the State Government, stating– (a) the
names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with
the circumstances of the case;
(d) whether any offence appears to have been committed and,
if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so,
whether with or without sureties;
(g) whether he has been forwarded in custody under section
170.
[(h) whether the report of medical examination of the woman
has been attached where investigation relates to an offence
under 2 [ sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA,
376DB] or section 376E of the Indian Penal Code (45 of
1860)].]
(ii) The officer shall also communicate, in such manner as may
be prescribed by the State Government, the action taken by
him, to the person, if any, by whom the information relating to
the commission of the offence was first given.
(3) Where a superior officer of police has been appointed
under section 158, the report shall, in any case in which the
State Government by general or special order so directs, be
submitted through that officer, and he may, pending the
orders of the Magistrate, direct the officer in charge of the
police station to make further investigation.
(4) Whenever it appears from a report forwarded under this
section that the accused has been released on his bond, the
Magistrate shall make such order for the discharge of such
bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section
170 applies, the police officer shall forward to the Magistrate
along with the report–
(a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to
the Magistrate during investigation;
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(b) the statements recorded under section 161 of all the
persons whom the prosecution proposes to examine as its
witnesses.
(6) If the police officer is of opinion that any part of any such
statement is not relevant to the subject-matter of the
proceedings or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in the public
interest, he shall indicate that part of the statement and
append a note requesting the Magistrate to exclude that part
from the copies to be granted to the accused and stating his
reasons for making such request.
(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused copies of all
or any of the documents referred to in sub-section (5).
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate and, where
upon such investigation, the officer in charge of the police
station obtains further evidence, oral or documentary, he shall
forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the
provisions of sub-sections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as they apply in
relation to a report forwarded under sub-section (2).
50. Report of Abkari Officer gives jurisdiction to a
competent Magistrate. –
(1) Every investigation into the offence under this Act
shall be completed without necessary delay.
(2) As soon as investigation into the offences under this Act is
completed, the Abkari Officer shall forward a Magistrate,
empowered to take cognizance of the offence on a police
report, a report in accordance with sub section (2) of section
173 of Code of Criminal Procedure, 1973.”
15. On going through Section 173(1) of the Code of
Criminal Procedure and Section 50(1) of the Abkari Act, it is crystal clear
that, an investigation in an offence be completed without unnecessary
delay. In the instant case, the questioning of the material witnesses as a
part of investigation was started after a gap of three years, which casts
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serious doubts in the prosecution story.
16. In Jinto v. State of Kerala [2023 KLT Online
2004], it is held that, when there is unexplained delay in completing
investigation, same is fatal to the prosecution. The relevant paragraphs are
extracted below:
“20. In the case on hand, though the detection
was on 17.06.2006, the witnesses were questioned by the
investigating officer in the year 2009 i.e., after 3 years of
detection, and prosecution has not offered any explanation
for that delay. The final report also was laid against the
revision petitioner after three years of the incident.
21. No explanation has been given by the
prosecution as to why there was delay in completing the
investigation and filing the final report. Where there is
unexplained delay in completing investigation and filing the
final report, the same is fatal to the prosecution, [Reliance
placed on Krishnan H. v. State of Kerala (2015 (2)
KLT SN 8 (C.No. 11) = 2015 (1) KHC 822); Chandran
v. State (2016 (4) KLT 727 = 2016 (5) KHC 650).”
17. In the decision in Moothedath Sivadasan &
Another v. State of Kerala [2021 KLT 744], it is held as under:
“The occurrence in this case was on
15.06.2000 and the final report was filed on 18.07.2002.
There was inordinate delay in filing the final report
before the court. As per S. 50 of the Act, every
investigation into the offences under the Act shall be
completed without unnecessary delay. As soon as
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completed, the Abkari Officer is obliged to forward a
report in accordance with sub-s. (2) of S. 173 of the Cr.
P.C. to a Magistrate empowered to take cognisance of the
offence on a police report. In this case, the inordinate
delay in filing the final report before the court has not
been explained by the prosecution. Further, the then S.I.
of Police, Iritty who filed the final report before the court,
was not examined as a witness for the prosecution.”
18. This Court in the decision in Gangadharan v. State
of Kerala [2024(1) KHC 111] observed that unexplained delay in
completing the investigation and filing final report is fatal to the
prosecution. The relevant paragraphs are extracted hereunder:
“34. Though the occurrence was on 10.09.2005,
the investigation was completed and charge sheet was laid
only on 28.09.2007, with a delay of two years. S.50 of the
Abkari Act says that, every investigation into the offences
under the Act shall be completed without unnecessary
delay. No explanation whatsoever has been offered by the
prosecution, for the delay of two years in completing the
investigation, and filing the final report. The unexplained
delay in completing the investigation, and filing the final
report is no doubt fatal to the prosecution. [See
Moothedath Sivadasan v. State of Kerala 2021 (1)
KLT 744, Kumaran P. v. State of Kerala and
another 2016 (4) KLT 718].”
19. In the instant case also, no explanation, whatsoever, is
offered by the prosecution to explain the inordinate delay in filing the
charge sheet. Moreover, Ext.P6 Inventory Certificate was prepared after
the lapse of about one year. According to the learned counsel for the
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revision petitioner, considering all the illegalities, infirmities and
irregularities stated above would casts serious doubts in the prosecution
story. The prosecution has failed to allege and prove the charge against
the revision petitioner/accused beyond reasonable doubt. It is trite law
that the penal provisions are to be interpreted within the four corners of
the statute.
20. On going through the records of the case and upon
hearing the rival submissions of the counsel for the parties, I am of the
view that the trial court and appellate court had overlooked vital
illegalities, infirmities or irregularities, which cuts the very root of the
prosecution case.
In the result,
(i) Criminal revision petition is allowed.
(ii) The impugned judgment is set aside.
(iii) The revision petitioner/accused is acquitted and she is
set at liberty.
(iv) The bail bond, if any, executed by the revision
petitioner stands cancelled.
(v) Fine, if any, paid by her shall be refunded.
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/