SUJITH KALESAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Doubting the correctness of the decision reported in Kuriakose Chacko v. State, 1951 (52) Cri LJ 470, a learned single Judge of this Court referred this Revision Petition before the Division Bench. Before going into the question of law involved in the above decision, we may consider the facts of the case. Petitioner is the 11th accused in SC No. 1 of 2006 of the Sessions Court, Alappuzha. Charge was framed against 12 accused on 6-8-2007 after their case was committed to the Sessions Court by the Magistrate's Court. In the charge- sheet accused 1 to 4, 6 and 7 were charge sheeted for offences punishable under Section 302, IPC. Accused 5 and 8 to 13 were charge sheeted for the offence under Section 212 read with Section 34, IPC. This revision petition is filed by the 11th accused. In the charge sheet the allegations against 11th accused are mainly contained in paragraphs 32, 33 and 34 which are as follows :

(2.) It was contended by the petitioner that a person can be charge sheeted under Section 212 only after the main accused has been convicted for the offence alleged against them. In other words, charge can be filed under Section 212 only after the person who is alleged to have been harboured has been convicted. Secondly it was contended that Section 212 is an offence triable by the Magistrate and there is no necessity to try along with the main case before the Sessions Court. Thirdly it was contended that earlier when the police filed final report, that was accepted by the Court. Thereafter a further enquiry was conducted as permissible under Section 173(8). Then only petitioner was arrayed as an accused for having committed the offence under Section 212. But it is the contention of the petitioner that except the statement of CW 14, in the further investigation no material was found out and therefore filing of charge sheet against the petitioner is improper as there is no basis at all for charge sheeting him. Finally, it was contended that there is no prima facie case against the petitioner. Therefore, charge against the petitioner is liable to be set aside. On 18-8-2007, a Division Bench of this Court stayed the final judgment in S. C. No. 1/2006 as against the petitioner, but, allowed the trial to be proceeded with.

(3.) Section 212, IPC reads as follows :