- P.Gopalakrishnan @ Dileep vs State Of Kerala (9th March, 2020)
- (The petitioner has challenged the order rejecting his application for discharge before the Apex Court in a pending Special Leave Petition)
- Bench:JUSTICE P.B.SURESH KUMAR
- Appellant:P.GOPALAKRISHNAN
- Respondent: STATE OF KERALA
Issue
I) It was noted that,Appunni, stated to be the driver of the petitioner, was absconding. The mobile phone used for recording the sexual abuse and the original memory card in which it was recorded were not recovered, which posed a potential threat to the victim and the investigation
II) It was also noted that the petitioner being a prominent film actor, distributor and producer of films, and also a theater owner, must be wielding considerable command in the film industry and possibility of the petitioner influencing or threatening the witnesses, who were also mainly from the same industry, could not be ruled out.
III) After the committal proceedings, when the case was taken up by the Sessions Court, the petitioner preferred an application for discharge. The Court of Session framed charges in the case against the petitioner and other accused, after rejecting the application preferred by the petitioner for discharge.
IV) The petitioner has challenged the order rejecting his application for discharge before the Apex Court in a pending Special Leave Petition namely SLP(Crl.) 244 of 2020 by way of an interlocutory application therein
Facts
- The petitioner is the eighth accused in the case which arose from Crime No.297 of 2017 of Nedumbassery Police Station. The accusation against the accused in Annexure A final report is that accused Nos.1 to 6 hatched a criminal conspiracy on 11.02.2017 and on other days to abduct CW1, a cine actress, rape her and videograph its visuals to extort money from her by putting her in fear of publicizing thevisuals. It is also alleged in the final report that on 17.02.2017, in prosecution of the said common object, while CW1 was on her way from Thrissur to Ernakulam in a vehicle driven by the second accused, accused Nos.1 and 3 to 6 abducted her, raped her and videographed the sexual assault in a mobile phone.
- On 10.04.2017, the petitioner submitted a complaint by mail and later, in writing to the Director General of Police alleging that some persons are trying to extort money from him in connection with the occurrence made mention of in the final report. It is alleged that the said complaint was though forwarded by the Director General of Police to the Officer in charge of investigation in Crime No. 297 of 2017 of Nedumbassery Police Station, no further action was taken.
- On 22.11.2017, Annexure B additional final report was filed in the case arraying the petitioner as the eighth accused. The gist of the accusation in the additional final report is that due to the enmity of the petitioner towards CW1, he conspired with the first accused and offered to the first accused a sum of Rs.1.5 crores to commit sexual assaulton CW1 and to videograph its visuals.
Appellant's Contentions
- Learned senior counsel for the petitioner contended that there was absolutely no material to connect the petitioner herein with the first accused or his involvement in any conspiracy and that he himself was a prey to a conspiracy hatched by few persons inimical to him, to defeat and destroy him
- It was preposterous to contend that, conspiracy was hatched on various dates commencing from 2013, but executed only in 2017.
- It was argued by the petitioner that he had submitted a complaint on 20/4/2017 to the Director General of Police alleging that, someone, on behalf of the first accused, was blackmailing him for financial gain by threatening to falsely implicate him in the present crime. But, this complaint was not properly considered by the police.
- Now they are relying solely on the alleged confession made by the first accused, who is a known criminal, to implicate the petitioner in the case. It was further contended that the confession of the co-accused cannot be the sole basis for incriminating another.
- The learned Public Prosecutor submitted that the Crl.M.C. is not maintainable. It was pointed out by the learned Public Prosecutor that the Crl.M.C is one instituted virtually challenging Annexure-C charge. According to the learned Public Prosecutor, the petitioner is not entitled to challenge Annexure C charge after moving the Apex Court for the very same purpose. As regards the merits of the matter, it was argued by the learned Public Prosecutor that if the charges framed are not proper, the court has the power to alter the charges at any time.
Judgment
The Court held that no merit was found in the criminal M.C. and was thus dismissed, considering the fact and circumstances of the case.
Relevant Paragraphs
1. It was held that though the contentions would appear to be attractive at the first blush, on a close scrutiny, one does not find any substance in it.
2. It was further seen that one of the grounds on which the petitioner sought discharge in the case is that the alleged criminal conspiracy hatched by accused Nos.1, 9 and 10 at the District Jail, Kakkanad and the various illegal acts committed by them in furtherance thereof, in order to extort money from the petitioner are not part of the transaction made mention of in the final reports and the aforesaid charges cannot, therefore, be tried in a case in which the petitioner is an accused. The said ground was repelled in terms of the order passed by the court below on the application preferred by the petitioner. The said order has not been successfully challenged by the petitioner. Further, the petitioner who is entitled to challenge the charge in a revision under Section 397 of the Code has also not preferred any revision petition challenging the charges framed against him. In the circumstances, according to me, this proceedings under Section 482 of the Code challenging indirectly charges 14, 15 and 16 is not maintainable.
3. No merit was found in the various contentions raised in the Criminal M.C. In the light of Clause (d) of Section 223 of the Code, there cannot be any doubt that persons accused of different offences committed in the course of the same transaction can be tried together.223(a) (d). The following persons may be charged and tried together, namely--
(a) persons accused of the same offence committed in the course of the same transaction.
(d) persons accused of different offences committed in the course of the same transaction
4. For several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences "committed in the course of the same transaction".
5. The materials on record indicate that after the first accused was arrested in connection with the case and remanded to the District jail, Kakkanad, there was a meeting of mind between him, accused Nos 9 and 10 and one Vipin Lal, for the purpose of getting the money allegedly assured to them by thepetitioner, the eighth accused. It is seen that in the light of the said materials that charges 14, 15 and 16 have been framed by the court below. The aforesaid materials indicate that the meeting of mind between accused Nos.1, 9 and 10 at the District Jail, Kakkanad and the various acts committed by the accused thereupon are related to the conspiracy made mention of in the final reports in which the petitioner is one of the conspirators, in point of purpose. If that be so, in so far as the petitioner has no case that the aforesaid charges were unnecessary, accused Nos.1, 9 and 10 who are charged for the said criminal conspiracy to extort money from the petitioner can be tried jointly with other accused including the petitioner who are charged for the remaining offences committed in the course of the same transaction.
6. The conspiracy referred to in charges 14, 15 and 16 has nothing to do with the conspiracy which the petitioner is stated to have pointed out to the Director General of Police, for, going by the pleadings, the said conspiracy is anindependent conspiracy which has nothing to do with the conspiracy referred to in the final reports of which the petitioner is one of the conspirators. In the said view of the matter, the petitioner cannot be heard to contend that he would be put to prejudice, if charges 14, 15 and 16 are not tried separately.
7. The Court held that no merit was found in the criminal M.C. and was thus dismissed, considering the fact and circumstances of the case.
Click here to download the original copy of the judgment
