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2013 DIGILAW 708 (KER)

K. K. Sameeran v. Excise Inspector

2013-08-16

K.HARILAL

body2013
Judgment : 1. The revision petitioner is the 1st accused in S.C.No.318/10 on the files of the Additional District & Sessions (Ad-hoc) Fast Track Court-I, Pathanamthitta. He has been charged sheeted alleging the offence punishable under Sec.55(a) of the Kerala Abkari Act (for short 'the Act'). 2. The prosecution case is that on 23/4/2007 at 12.15 p.m. the Excise party found 420 litres of spirit in the house of the revision petitioner and thereby committed the offence punishable under Sec.55(a) of the Act. The charge was read over for the offence under Sec.55(a) of the Act and the prosecution witnesses were examined as P.Ws.1 to 6. Two witnesses were also examined on the side of defence. The revision petitioner was questioned under Sec.313 of the Code of Criminal Procedure. After finishing the defence evidence, arguments for the prosecution and defence were completed and on 28/6/2013, the case was posted for judgment. 3. But unexpectedly, on that day, the impugned order was passed, whereby the charge was re-framed for the offence under Sec.58 of the Act in lieu of the offence under Sec.55(a) of the Act. The fresh charge under Sec.58 of the Act was also read over and the accused pleaded not guilty. Then the learned Sessions Judge passed an order recalling the witnesses also. The said order is under challenge in this revision petition. 4. The learned counsel for the revision petitioner submits that the accused is too much prejudiced by the re- framing of the charge for the offence under Sec.58 of the Act. Evidence was adduced by the prosecution and the defence. Re-framing of the charge, after the disclosure of the entire evidence, will cause prejudice to him. The learned counsel for the revision petitioner cited the decision reported in Jose v. State of Kerala (2007 (2) KLT 202) and argued that the offences under Sec.55(a) and 58 of the Abkari Act are similar offences having only slight differences and in the light of the above decision conviction can be entered interchangeably without a re-trial. This is the contention mainly raised in this revision petition. 5. In view of the above contention, the short question that arises for consideration is whether re-framing of the charge under Sec.58 of the Act and re-trial thereunder are necessary in lieu of charge under Sec.55(a) of the Act for a proper conviction under Sec.58 of the Abkari Act? This is the contention mainly raised in this revision petition. 5. In view of the above contention, the short question that arises for consideration is whether re-framing of the charge under Sec.58 of the Act and re-trial thereunder are necessary in lieu of charge under Sec.55(a) of the Act for a proper conviction under Sec.58 of the Abkari Act? This Court had an opportunity to consider this question under the Abkari Act in the decision reported in Jose v. State of Kerala (2007 (2) KLT 202). In the above decision, this Court analysed the offences under Secs.55(a), 58 and 8(1) and (2) of the Act and found that the only difference or distinction between Secs.55(a) and 58 of the Act is that the element of knowledge is also required for conviction under Sec.58 of the Act. The considered question is whether conviction can be altered interchangeably under Sec.55(a), 58 and 8(1) of the Act after trial without a re-trial and before the pronouncement of the judgment. This question was considered in view of Secs.216, 221 and 464 of the Code of Criminal Procedure. Relying on Secs.221(2) and 216(2) of the Cr.P.C., the court found that if, in such a case, accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-sections (1) and (2) of Sec.221 of the Cr.P.C., he may be convicted of the offence which he is shown to have committed, although he was not charged with it. In view of that decision, it can be held that an accused, who faced trial for a charge under Sec.55(a) of the Act, can be convicted for Sec.58 of the Act without a rte-trial, in view of Secs.221 (1) and (2) and 464(1) of the Cr.P.C. But in this case now the charge stands altered. 6. Going by the impugned judgment, it could be seen that the learned Sessions Judge with abundant caution so as to make sure that no prejudice shall be caused to the accused by the alteration of the charge, suo motu recalled all the witnesses who had been examined earlier. I am of the opinion that the learned Sessions Judge ought not have recalled all witnesses suo motu. I am of the opinion that the learned Sessions Judge ought not have recalled all witnesses suo motu. Going by Sec.217 of the Cr.P.C., whenever a charge is altered or added to by the court after the commencement of the trial, the Prosecutor and the accused shall be allowed to recall and examine with reference to such alteration or addition of any witness who may have been examined if either the prosecution or the defence desirous to recall or re-examine such witnesses to examine with reference to such alteration or addition. Here, the accused himself challenged the recalling of the witnesses by filing this revision petition. So, it can be presumed that the revision petitioner is not desirous of recalling and examining the witnesses who have been examined earlier with reference to such alteration or addition. 7. However, in the instant case, now the charge is altered from Sec.55(a) to Sec.58 of the Abkari Act. So, the further proceedings must be in accordance with Sec.217 of the Cr.P.C. The learned counsel further submits that after the alteration of the charge, no opportunity had been given to the accused to address on the altered charge. The learned Sessions Judge altered the charge and recalled all the witnesses without affording an opportunity of being heard with reference to the altered charge. In view of the above submission and having regard to the facts and circumstances of the case, I am of the opinion that all witnesses need not be recalled and examined suo motu and an opportunity shall be given to the accused as well as the Prosecutor and to address with reference to the alteration of the charge to the limited question. Do the parties want to examine any of the witnesses? and if the parties are desirous of recalling and reexamining any of the witnesses with reference to such alteration, that witnesses alone need be called and examined. Therefore, the learned Sessions Judge is directed to give an opportunity to address to the above limited question and proceed in accordance with the stand which they will take at that time. If the parties are not desirous of re-examining any of the witnesses, judgment can be pronounced forthwith. It is also made clear that if the party is not desirous of recalling and re-examining the witnesses, they will be precluded from raising the contention that alteration of charge prejudiced their rights. If the parties are not desirous of re-examining any of the witnesses, judgment can be pronounced forthwith. It is also made clear that if the party is not desirous of recalling and re-examining the witnesses, they will be precluded from raising the contention that alteration of charge prejudiced their rights. The impugned order is modified to that extent. This revision petition is disposed of accordingly.