Kerala High Court Quashes Proceedings Against KPCC President K Sudhakaran In CPM Leader P Jayarajan's Attempt To Murder Case

Justice Ziyad Rahman A.A. observed that the proceedings initiated against K Sudhakaran (1^st accused) and Rajeev (3^rd accused) based on FIR No. 148/1997 cannot be permitted to continue since it is a second FIR filed against the parties by E P Jayarajan raising the same allegations based on the same incident itself.

The incident relates to a meeting of persons including petitioners at Thycaud Guest House in Thiruvananthapuram for allegedly planning the crime. The Court thus found that the contents of both FIRs center around an allegation of criminal conspiracy and proceedings cannot be allowed to continue in the second FIR.

“In this case, I have already found that, there is a legal bar in proceeding against the petitioners herein, in view of the fact that, the FIR based on which the entire prosecution case is built, amounts to a second FIR in respect of the very same transactions covered by the FIR and final report in Crime No.14/1995 of Chirala Railway Police Station.. Hence the invocation of the Revisional Powers of this Court is justified”, stated the Court.

The Criminal Revision petition was filed by accused 1 (K Sudhakaran) and 3 (Rajeev) against the order of the Sessions Judge rejecting the prayer to discharge the case. The Case is pending on the file of the Court of the Additional Sessions Judge-IV, Thiruvananthapuram and the offences alleged were under section 120B (punishment for criminal conspiracy) and section 307 (attempt to murder) of the IPC.

Senior Advocate S Sreekumar, Counsel for the petitioners argued that this was a second FIR filed alleging the commission of the same offences and was not maintainable. It was submitted that the role of petitioners was not established in the first FIR and this finding was upheld in the appeal also.

Special Government Pleader S U Nazar contended that petitioners were never charge-sheeted and faced the trial in an earlier crime which was registered as the first FIR. It was argued that Section 120B was not added in the first FIR and the petitioners could be separately tried by registering another FIR. It was argued that the police did not investigate into the involvement of the petitioners in conspiring to commit the crime and fresh investigation has to be conducted.

Senior Advocate C P Udayabhanu, appearing on behalf of E P Jayarajan submitted that the Court has limited power while exercising revisional powers, especially while challenging an order refusing to discharge the accused. It was also submitted that the Court may not rely upon documents produced by petitioners/accused that relate to previous prosecution of the case based on the first FIR by another investigating agency, and subsequent orders passed in it.

The Court stated that the documents relied upon by the petitioners, the first FIR, charge sheet (part of prosecution records) and judgments rendered in the first FIR are relevant documents. It relied upon the Apex Court decision in Rukmini Narvekar v. Vijaya Satardekar and others (2008), wherein it was held that Court in exceptional circumstances can consider defence materials.

The Court stated that the first FIR was filed alleging sections 120B, 307 of IPC, section 25(1) (b) (a) and section 27 of the Arms Act. Charge sheet was filed against the petitioners under sections 120B and 307 read with 34 of the IPC, and section 7 read with section 27 of the Arms Act. The Court found that the Trial Court found that the prosecution failed to establish conspiracy against the petitioners.

The Court further stated that the second FIR was registered based on a private complaint filed by E P Jayarajan wherein some additional witnesses were produced and there was also an allegation of conspiracy to do away with some more persons. The Court stated that this by itself was not a reason to register a second FIR

On analyzing a catena of decisions, the Court ruled that a second FIR based on the very same incident and forming part of the same transactions cannot be registered under normal circumstances except when the second FIR is a counter case. It stated that a second FIR cannot be registered even with respect to the incident which occurred as a consequence of the first incident. The Court stated that a second FIR can be registered if it pertains to a conspiracy and if the conspiracy was not part of the first FIR. It thus said, “The second FIR can be registered if the incident in the subsequent crime is beyond the scope and ambit of the first FIR.”

In the facts of the case, the Court stated that proceedings cannot be permitted to continue in the second FIR since both FIR's were filed alleging conspiracy. 

The Court thus set aside the order of the Sessions Court to the extent it declined the prayer to discharge petitioners and discharged the petitioners.

Counsel for Petitioner: Senior Advocate S Sreekumar, Advocates M Meena John, Viju Thomas

Counsel for Respondents: Special Government Pleader S U Nazar, Senior Advocate C P Udayabhanu

Citation: 2024 LiveLaw Ker 296

Case Title: K Sudhakaran v State of Kerala

Case Number: Crl.Rev.Pet 989/2016

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