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2022 DIGILAW 250 (KER)

Ismail P. M. v. Muhammad Ameer-Ul-Islam S/O. Nizamudheen

2022-03-15

C.JAYACHANDRAN, K.VINOD CHANDRAN

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ORDER : Jayachandran, J. This application is preferred under Rule 129 of the Kerala High Court Rules by a stranger seeking issuance of certified copies of the judgment and other documents in S.C No.662 of 2016 of the Sessions Court, Ernakulam. The petitioner claims that his name was included in the list of defence witnesses, but was not examined. The purpose stated in the application is to prefer a criminal revision petition challenging the judgment of conviction dated 12-12-2017 in the above sessions case, on the premise that the convicted accused is not the real culprit, that he was made a scapegoat in order to save the real culprits and that a de-novo investigation is to be conducted. 2. Heard Sri.C.Rajendran, learned counsel for the petitioner and Smt.S.Ambika Devi, learned Special Government Pleader (Women and Children), who filed an objection and opposed the application seriously. Perused the records. 3. Section 129 of the Rules of the High Court of Kerala, 1971 is extracted hereunder : “129. Application for copies by Strangers.- Application for copies for records by persons not parties to the proceeding shall be allowed only by order of the Court, obtained on a duly verified petition, setting forth the purpose for which the copy is required. But copies of judgments and decrees can be granted to all persons prepared to pay the prescribed fees for the supply of such copies.” (underlined for emphasis) 4. Rule 226 of the Criminal Rules of Practice, Kerala, 1982 is also extracted hereunder : “226. Application for copies by strangers.- Except in the case of judgments, applications for the grant of copies of any proceedings or documents by a stranger to the proceeding shall be allowed only by order of the Court obtained on a petition duly verified setting forth the purpose for which the copy is required.” (underlined for emphasis) 5. It is clear from the Rules extracted above that, insofar as strangers are concerned, their entitlement for copies of records, except judgments, is subject to an enabling order by the court, on a verified petition setting forth the purpose for which the copy is required. The word “only” occurring in Rule 129 of the High Court of Kerala and Rule 226 of the Criminal Rules of Practice, Kerala extracted above underscores the rigour in the matter of issuing certified copies to strangers. The word “only” occurring in Rule 129 of the High Court of Kerala and Rule 226 of the Criminal Rules of Practice, Kerala extracted above underscores the rigour in the matter of issuing certified copies to strangers. Besides, both the rules speak of the requirement to set forth the purpose for which copy is required, which implies that the court which makes an order directing issuance of copy should be satisfied of the purpose for which certified copy is sought for. 6. Coming to the facts, the purpose stated by the petitioner to seek certified copies of the judgment and other records in S.C No.662 of 2016 is that he proposes to prefer a criminal revision petition to set aside the judgment of conviction, since the accused convicted is not the real culprit and he was made a scapegoat to save the real culprits. The petitioner would specifically state that he seeks a de-novo investigation. To add force to his locus, the petitioner also avers that he was witness no.2 in the list of defence witnesses, but was not examined in the court. 7. Having heard the learned counsel, we are neither convinced of the reason set forth in the petition; nor of the petitioner's locus. We take note that an appeal has already been preferred by the convicted accused challenging the judgment of conviction. While espousing his cause/innocence in the said appeal, the accused can also point out the serious flaws, if any, in the investigation, leading to an innocent person being prosecuted, at the cost of the real culprit and can seek further investigation. The appellant/accused does not stand in need of any aid/assistance in this regard from the petitioner/stranger. That apart, upon hearing the appeal, if this Court is satisfied that a further investigation is required in the matter, an order to that effect is well-nigh within our powers. 8. As regards petitioner's locus also, we are not in the least convinced. Admittedly, the petitioner is a stranger. Section 372 Cr.P.C stipulates that no appeal shall lie from any judgment, except as provided for by the Code or by any other law for the time being in force. 8. As regards petitioner's locus also, we are not in the least convinced. Admittedly, the petitioner is a stranger. Section 372 Cr.P.C stipulates that no appeal shall lie from any judgment, except as provided for by the Code or by any other law for the time being in force. The right of appeal of the accused is provided in Section 374 and an appeal against a judgment of acquittal is provided for in Section 378 Cr.P.C. Appeal by the State Government against a sentence is provided in Section 377 Cr.P.C. There was no vested right even for the victim to prefer an appeal, until 2009 when the Proviso to Section 372 was inserted by Act 5 of 2009. As is trite, the remedy of appeal is the creation of statute, sans which, no one has a vested right of appeal. The legal position being thus, it cannot so easily be contemplated that a stranger can prefer an appeal in disguise, titled as a revision. Ample indication in this regard is available in the judgments of the Hon'ble Supreme Court in Janata Dal v. H.S.Chowdhary and Others [ (1991)3 SCC 756 ] and Simranjit Singh Mann v. Union of India and Another [ (1992) 4 SCC 653 ]. In Janata Dal (supra), an FIR was sought to be quashed by strangers, under the garb of public interest litigation. The Hon'ble Supreme Court held thus : “26. Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants. ” 9. In Simranjit Singh Mann (supra), the specific issue of locus standi of a stranger to challenge a conviction and sentence by a petition under Article 32 of the Constitution of India is considered by the Hon'ble Supreme Court. It was inter alia held in paragraph 7 of the judgment as follows : “7 …........The two convicts could, if so minded, have raised the contention in the earlier proceedings but a third party, a total stranger to the trial commenced against the two convicts, cannot be permitted to question the correctness of the conviction recorded against them. It was inter alia held in paragraph 7 of the judgment as follows : “7 …........The two convicts could, if so minded, have raised the contention in the earlier proceedings but a third party, a total stranger to the trial commenced against the two convicts, cannot be permitted to question the correctness of the conviction recorded against them. If that were permitted any and every person could challenge convictions recorded day in and day out by courts even if the persons convicted do not desire to do so and are inclined to acquiesce in the decision.................................................. .............................................................. We are, therefore, satisfied that neither under the provisions of the Code nor under any other statute is a third party stranger permitted to question the correctness of the conviction and sentence imposed by the Court after a regular trial...........” 10. In the context of a revision preferred by a private party, the three Judges Bench of Hon'ble Supreme Court held in Thakur Ram and others v. The State of Bihar ( AIR 1966 SC 911 ) that, in a case which has proceeded on a police report, a private party has really no locus standi. The Hon'ble Supreme Court further held that barring a few exceptions, in criminal matters, the party who is treated as the aggrieved party, is the State, which is the custodian of the social interests of the community at large, and so it is for the State to take all the steps necessary for bringing the person, who had acted against the social interests of the community to book. 11. Finally, we find merit in the objection of the learned Special Government Pleader that the issuance of copies of records of the subject Sessions case may invade the privacy and dignity of the victim, though 'no more', this being a case of brutal rape, followed by murder. We prefer to believe that privacy and dignity of individual outlives his/her life. In the light of the above discussion, we are not inclined to allow the instant criminal miscellaneous application, except in respect of the copy of the impugned judgment (serial No.1 in the documents specified in the petition), which is specifically seen saved in Rule 129 of the Kerala High Court Rules and Rule 226 of the Criminal Rules of Practice, both. Crl.M.A is allowed to the limited extent indicated above.