State of Kerala Vs. Suresh @ Subhash and ors. - Court Judgment

Excerpt:
criminal - fir - delay - ) - respondents were charge sheeted for alleged offences under sections 109, 147, 148, 302 and 449 of ipc - trial court as well as high court passed order of acquittal of respondents from all charges - hence, present appeal - held, in instant case prosecution could not explain delay in reaching copy of fir to concerned magistrate - further one day before lodging fir informant was in icu of hospital - therefore lodging of fir by such serious patient was highly improbable - accordingly veracity of informant was doubtful - hence, acquittal order did not suffer from any infirmity - appeal accordingly dismissed - constitution of india articles 136 & 245; [h.k. sema & markandey katju, jj] powers of court recommendation of court for restoration of deleted statutory provision is not binding on state government/ state legislature, but still it should be seriously considered, and not simply ignored. court usually makes recommendation when it feels that public is facing some hardship and such recommendation should, therefore, be given respect and serious consideration. (obiter) (per markandey katju, j.) -- karnataka shops & commercial establishments act, 1961.[k.a. no. 8/1962]. sections 3(1) (h) & 30: person in management exclusion from applicability of act apparent conflict between section 30 and section3(1)(h) held, section3(1)(h) of the act require amendment. court cannot fill up a casus omissus. matter left open. -- 25 & 30(1): accused charged for offence under - order taking cognizance of offence by magistrate no infirmity found by high court held, order is not liable to be interfered with.-- section 438: anticipatory bail deletion of provision under section 438 cr.p.c. by section 9 of u.p. act 16/1976 - entailed filing of thousands of writ petitions and section 482 cr.p.c. applications in allahabad high court for stay of petitioners arrest and/or quashing fir deletion causing hardship to public, and overcrowding in jails problem will be obviated by restoring provision for anticipatory bail in state of u.p. court made strong recommendation to u.p. government to immediately issue ordinance to restore provision for anticipatory bail further, decision in amarawati & anr v state of u.p.,2005cri lj 755 (all) (fb) directed to be implemented in letter and spirit.(obiter)(per markandey katju, j.). arijit pasayat, j.1. heard learned counsel for the parties.2. the kerala high court by the impugned order dismissed the appeal filed by the state questioning acquittal of five accused persons who faced trial in the court of additional sessions judge, pathanamthitta. the trial court acquitted them of the charges relatable to sections 143, 147, 148, 109, 449 and 302 read with section 149 of the indian penal code, 1860 ( in short 'ipc').3. the basic reason which weighed with the trial court to direct acquittal was the unexplained delay relating to the fir reaching the concerned magistrate. added to that the authenticity of the report given by pw1 was doubtful. the high court found that the evidence of pw1 was not believable. there was doubt about the authenticity of ex.p1 and the unexplained delay in fir reaching the magistrate court. because of the aforesaid factors the high court found that there was no scope for any interference, learned counsel for the appellant submitted that pw1 was an injured witness and merely because the investigation was not done in proper manner, the acquittal should not have been directed. learned counsel for the respondent supported the judgment.4. we find that both the trial court and the high court have analysed the evidence in great detail to find the prosecution version to be not cogent and credible. according to pw1 she gave ext. p1 fir before asi pw17 at 2.30 a.m. on 6.9.1996. according to pw17 he recorded at 3.00 a.m. on 6.9.1996. but ext. p1 reached the ilaga magistrate at 10.30 a.m. on 7.9.1996. the investigating officer has not explained the delay. further the trial court found if impossible physically for giving a lengthy report (ext. p1) while in intensive care unit. the occurrence is stated to have taken place on 5.9.1996 at 8.15 p.m. according to pw5, he examined the injured and deceased at 9.30 p.m. if that be so, it has not been explained as to how the fir came to be lodged at 2.30 a.m. on 6.9.1996. that being so, we find no scope for interference in this appeal which is accordingly dismissed.