Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 1684 (KER)

Saneer v. State Of Kerala

2025-06-18

GOPINATH P.

body2025
JUDGMENT : Gopinath P., J. This appeal has been filed challenging the conviction and sentence imposed on the appellant in S.C.No.167 of 2018 on the file of the Additional District and Sessions Court-VII, Ernakulam. 2. The learned counsel appearing for the appellant submits that, apart from the contentions taken on the merits of the matter, the appeal is liable to be allowed on a short point. It is submitted that the proceedings before the trial Court will indicate that on 06.03.2025, CWs 2 and 8 were examined as PWs 3 and 4, and evidence for the prosecution was closed and the case was posted on 11.03.2025 for examination u/s 313 Cr.PC. It is submitted that on 11.03.2025, the prosecution had filed a petition for reopening the evidence and on 19.03.2025, the matter was posted to 24.03.2025 for the examination of the additional witness cited for the prosecution. It is submitted that on 24.03.2025, the additional witness was not present and the matter was adjourned to 28.03.2025. It is submitted that on 28.03.2025, the appellant/accused was present and PW6 (additional witness) was examined, and the accused was also further questioned u/s 313 Cr.PC. It is submitted that on 28.03.2025, the Court records that there is no ground to acquit the accused u/s 232 Cr.PC and thereafter proceeded to record that the counsel for the accused had submitted that there is no evidence for the defence and that he is ready for arguments in the case, and thereafter the Court heard the case and posted the matter for judgment on 03.04.2025. It is submitted that on 03.04.2025, the judgment was pronounced finding the appellant/accused guilty of the offence punishable u/s 22(c) of the NDPS Act and convicting him for the offence u/s 235(2) Cr.PC. It is submitted that on the same day, the matter was posted at 2.30 p.m. for hearing the accused on the matter of sentence, and the appellant/accused was sentenced to rigorous imprisonment for 10 years and to a fine of Rs. 1 lakh. It is submitted that the learned counsel for the appellant/accused has not made any submission before the trial Court that there is no defence evidence. It is submitted that going by the provisions of s.233 Cr.PC, after the prosecution evidence was closed, the Court ought to have posted the case for defence evidence. 1 lakh. It is submitted that the learned counsel for the appellant/accused has not made any submission before the trial Court that there is no defence evidence. It is submitted that going by the provisions of s.233 Cr.PC, after the prosecution evidence was closed, the Court ought to have posted the case for defence evidence. It is submitted that the failure to post the case for defence evidence and taking the matter as heard on the date on which the last prosecution witness was examined was not proper. 3. The learned Public Prosecutor submits that no relief can be granted to the appellant on the above ground, now projected before the Court. The learned Public Prosecutor submits that a perusal of the proceedings sheet in SC No.167/2018 does not indicate that the Court had posted the matter for defence evidence. It is submitted that though to ensure a fair trial and to ensure that no complaints of this nature are made at a later stage, it would always be appropriate that the Court had posted the case for defence evidence and had then recorded that there is no defence evidence. It is submitted that in the facts of the present case, it appears that on the day on which the last prosecution witness was examined as PW6, the Court recorded that there is no defence evidence and proceeded to hear the matter finally. The learned Public Prosecutor, however, has pointed out that a Full Bench of this Court in Moidu K. v. State of Kerala ; 2009(3) KHC 89 has taken the view, though the provisions of s. 232 Cr.PC are mandatory; the failure to comply does not ipso facto vitiate the trial. It is submitted that only where serious and substantial prejudice has been demonstrated would failure to comply with the provisions in s. 233 Cr.PC vitiate the trial. 4. The learned counsel for the appellant submits that in Satbir Singh v. State of Haryana ; 2021 (3) KLT Online 1111 (SC) , the Supreme Court has observed that where the Court concludes that there is no ground to acquit the accused u/s. 232 Cr.PC, it must move on to fix the date for defence evidence, and since that has not been done in the facts of the present case, the trial was vitiated. 5. 5. Having heard the learned counsel for the appellant and the learned public prosecutor and having perused the records, I am of the view that the appeal is to be allowed by way of remand. A perusal of the proceedings before the trial Court in S.C.No.167/2018 will indicate that on 28.03.2025, the last witness on behalf of the prosecution was examined and the accused was also further questioned u/s. 313 Cr.PC. The Court also concluded that there was no ground to acquit the accused u/s. 232 Cr.PC. A reading of the provisions of s. 233 Cr.PC will indicate that the Court should have at that stage, proceeded to fix a date for the defence evidence. However, the proceedings do not indicate that the Court fixed any date for defence evidence and instead proceeded to record that there was no defence evidence and also proceeded to hear and reserve the case for judgment. The decision of the Full Bench of this Court in Moidu (supra) indicates that the provisions of s. 233 are mandatory. The conclusions of the Full Bench in Moidu (supra) read as follows: “49. Having considered the question of law with the help of principles and precedents, we come to the conclusion that the correct position of law has to be stated as follows: (i) S.232 and 233 of the Cr.PC are mandatory in the sense that all Sessions Courts are expected to comply with those provisions strictly and earnestly and the compliance should be reflected in the proceedings. (ii) However, non-compliance of the said provisions does not, ipso facto, vitiate the proceedings. (iii) If it is shown that the omission to comply with the provisions has resulted in serious and substantial prejudice against the accused and consequent failure of justice, such omission vitiates the proceedings from that stage and superior Courts will be justified in setting aside the final order and directing the Sessions Court to continue trial from the state afresh. (iii) If it is shown that the omission to comply with the provisions has resulted in serious and substantial prejudice against the accused and consequent failure of justice, such omission vitiates the proceedings from that stage and superior Courts will be justified in setting aside the final order and directing the Sessions Court to continue trial from the state afresh. (iv) If there be substantial compliance and if there be no serious and substantial prejudice against the accused and no resultant failure of justice flowing from the inadequacy in compliance, such inadequacy/irregularity is curable under S.465 Cr.PC and such inadequacy /non compliance will not vitiate the proceedings or lead to invalidation of the subsequent proceedings.” Though this Court in Moidu (supra) holds that non- compliance with the provisions of s.233 may not, ipso facto, vitiate trial, this Court cannot be oblivious to the fact that the accused in this case is facing a charge u/s. 22(c) of the NDPS Act, which exposes him to a minimum sentence of 10 years and a minimum fine of Rs.1 lakh. Therefore, it was incumbent on the part of the trial Court to ensure that the proceedings also demonstrate that a fair chance was given to the accused to adduce evidence in defence, if any. From the proceedings in this case, I am unable to conclude that such a fair chance was given to the accused. In Satbir Singh (supra), the Supreme Court observed as follows: “21. Section 232, Cr.PC assumes importance, which reads as, “If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232, Cr.PC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under Section 233 Cr.PC, which is also an invaluable right provided to the accused. Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232, Cr.PC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under Section 233 Cr.PC, which is also an invaluable right provided to the accused. Existence of such procedural right cohesively sits with the rebuttable presumption as provided under Section 113 B, Evidence Act.” The decision in Satbir Singh (supra), in my view, forti the case of the appellant/accused that the case should have been posted for defence evidence to a particular date, and on that day, possibly the Court could have recorded, if at all, that there was no defence evidence. Since that has not been done in the facts of the present case, this appeal is allowed, and the conviction and sentence imposed on the appellant in S.C.No.167/2018 will stand set aside. S.C.No.167/2018 shall stand restored to the file of the VIIth Additional District and Sessions Court, Ernakulam for proceeding further from the stage of s. 232 Cr.P.C. Since the appellant/accused is in custody, it is directed that the appellant/accused shall be forthwith released from custody on the same bail bonds executed by him, pending trial of SC No.167/2018. The appeal is thus allowed by way of remand. The Registry shall forthwith transmit the records in S.C.No.167/2018 to the trial Court. The trial Court shall fix a date for the appearance of the accused after the accused is released from custody. Since the appeal is allowed on a short point that the provisions of Section 233 Cr.P.C have not been complied with, it is made clear that I have not expressed any opinion on the merits of the matter.