STATE OF KERALA Vs. AYYAPPAN

JUDGEMENT

(1.) Leave granted.

(2.) Sometime in January 1993, the fourth respondent made a complaint to Padagiri Police Station about two missing persons, Chandran and Thankamani, who were alleged to be missing from 27.11.1992 onwards. The police carried out investigation and, thereafter, an offence u/s. 302 of the Penal Code, 1860 ("IPC") was registered and the case was remitted to the Additional Sessions Court, Palakkad. Respondents 9, 10 and 12 (Unnikrishnan, Ramankutty and Asis alias Abdul Assis, respectively) are police personnel, who were concerned with investigation of Crime No. 2 of 1993 of Padagiri Police Station. It was alleged against them that they had fabricated false evidence and attempted to destroy evidence in order to shield the accused, who were charged with serious offences. The tenth accused (Ramankutty) moved an application u/s. 218 of the Code of Criminal Procedure, 1973 ("CrPC") before the Court of Session, Palakkad praying that the case against him be split up and tried separately. By an order dated 12.07.1999, the Additional Sessions Judge dismissed the application. However, on 14.09.1999 the Additional Sessions Court, Palakkad made an order framing separate charges against Accused 9, 10 and 12 for offences punishable under Ss. 120B, 218 and 193 of the Indian Penal Code and ordered that they be tried by the Chief Judicial Magistrate, Palakkad. The appellant State of Kerala challenged the said order by Criminal Revision Petition No. 878 of 1999 before the High Court of Kerala. The High Court dismissed the criminal revision petition by its order dated 12.08.2003 taking the view that there was no infirmity in the order transferring the case to the Chief Judicial Magistrate, Palakkad for trial of Accused 9, 10 and 12. The High Court opined that the Additional Sessions Court's order was in conformity with the provisions contained in Sec. 228(1) of the Criminal Procedure Code. The High Court's order is impugned in the present appeal.

(3.) We have perused the record and heard the learned counsel on both the sides. We are satisfied that at least some of the evidence in the trial against Accused 9, 10 and 12 is likely to be common in the trial of the other accused, who were charged before the Sessions Court. There is likelihood of prejudice to the prosecution's case, if the trials are held separately. On the other hand, if Accused 9, 10 and 12 are also tried by the Sessions Court, there is no prejudice likely to be caused to them. In any event, we are not satisfied that Sec. 228(1) of the Criminal Procedure Code could have been applied to the facts of the present case. It was quite within the competence of the Sessions Court to try the charges against Accused 9, 10 and 12 along with the charges against the other accused, who stood charged with the offences, which were exclusively triable by the Sessions Court. We are, therefore, satisfied that both the trials ought to proceed before the Sessions Court.