Anil Kumar K and Minirani M. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945** **CRL.REV.PET NO. 939 OF 2023** **AGAINST THE ORDER DATED 09.03.2023 IN CMP NO.2090 OF 2022 IN CC NO.935 OF 2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,KOZHIKODE** ## **REVISION PETITIONERS:** **1 ANIL KUMAR K AGED 61 YEARS S/O.ACHUTHAN.K., ACHUTHAM HOUSE, SRAMBIKKAL PARAMBA, PUTHIYARA P 0. KASABA AMSOM, KOZHIKODE, PIN – 673004. 2 MINIRANI M., AGED 51 YEARS, W/O. ANIL KUMAR.K, ACHUTHAM HOUSE, SRAMBIKKAL PARAMBA, PUTHIYARA P 0., KASABA AMSOM, KOZHIKODE, PIN – 673004. BY ADVS. MOHAN JACOB GEORGE P.V.PARVATHY REENA THOMAS NIGI GEORGE ANANTHU V.LAL** ## **RESPONDENT:** **STATE OF KERALA STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA REPRESENTING DEPUTY SUPERINTENDENT OF POLICE CBCID OCW IV SUB UNIT, KOZHIKODE CRIME NO.49/CR/EOWIII/KKD/2015 (TOWN POLICE STATION CRIME NO.634/12), PIN – 682031. SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR** **FINAL HEARING ON 05.12.2023, THE COURT ON 05.01.2024 DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.939 of 2023 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.R.P.No.939 of 2023 ----------------------------------------------------------Dated this the 5[th] day of January, 2024 O R D E R** The petitioners are the accused in C.C.No.935 of 2019 on the files of the Judicial Magistrate of the First Class-I, Kozhikode. They are charged with the offences punishable under Sections 454, 461, 381 and 414 read with Section 34 of the Indian Penal Code, 1860 (IPC). They have filed C.M.P.No.2090 of 2022 under Section 239 of Code of Criminal Procedure, 1973 (Code). The learned Magistrate dismissed that petition as per the order dated 09.03.2023. Aggrieved by the order, they have filed this revision under Section 397 read with Section 401 of the Code. 2. Heard the learned counsel for the petitioners and the learned Public prosecutor. 3. The accusations against the petitioners is as follows: The 1[st] petitioner was working as a sub-staff at the main branch of Punjab National Bank, Kozhikode, which is situated 3 Crl.R.P.No.939 of 2023 on the western side of K.P.K.Menon Road. He had knowledge about the interchange of the locks fitted to the lockers installed in that bank. Locker No.80 was hired to witness Nos.1 and 2. They kept their gold ornaments and gold coins in that locker. During the period between 23.07.2010 and 17.12.2012, the 1[st] petitioner after illegally gaining entry to the area where the lockers in the said bank building were installed, opened locker No.80 using some method, which is known to him alone, stole 80 sovereigns of gold kept by witness Nos.1 and 2 in that locker. The 2[nd] petitioner with the knowledge that the articles were stolen, received and pledged such gold ornaments at the main branch of Punjab National Bank, Kozhikode. 4. The petitioners would contend that evidence proposed by the prosecution itself would show that the petitioners are innocent and they were falsely implicated in the crime. No gold ornaments allegedly stolen has been recovered from the possession of the petitioners. The case of the prosecution is that 8 gold coins were pledged by the 2[nd] 4 Crl.R.P.No.939 of 2023 petitioner belonging to witness Nos.1 and 2. On the basis of that evidence, the petitioners are implicated after a longdrawn investigation. From the statements of witnesses cited by the prosecution, particularly, witness Nos.35, 36, 37, 38 and 48, pledging of 8 gold coins on the behest of the 1[st] petitioner even prior to the alleged theft and purchase of such coins by the 1[st] petitioner are evident. Neither witness No.1 nor witness No.2 identified even the gold coins recovered from the possession of the petitioners as their own. Witness No.2 deposed only that the said gold coins were similar to their stolen gold coins. Pointing out the said circumstances, it is submitted by the learned counsel for the petitioners that the charge against them would only be groundless and hence they are entitled for a discharge. The learned counsel places reliance in this respect on the decision of the Apex Court in **Vishnu Kumar Shukla and another v. State of Uttar Pradesh and another [(2023) SCC OnLine SC 1582 : 2023 (7) KHC SN 18]** . The learned counsel emphasises the following observations of the Apex Court: 5 Crl.R.P.No.939 of 2023 “23. The protection against vexatious and unwanted prosecution and from being unnecessarily dragged through a trial by melting a criminal proceeding into oblivion, either through quashing a FIR/Complaint or by allowing an appeal against an order rejecting discharge or by any other legally permissible route, as the circumstances may be, in the deserving case, is a duty cast on the High Courts. The High Court should have intervened and discharged the appellants. But this Court will intervene, being the sentinel on the _qui vive_ .” 5. In **State of Bihar v. Ramesh Singh [AIR 1977** **SC 2018]** the Apex Court held that at the stage of framing charge, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage, the truth, veracity and effect of the evidence, which the prosecution proposes to adduce, are not to be meticulously judged. It is also unnecessary to weigh the probable defence of the accused. The view taken by the Apex Court in **Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and another [(1989) 1 SCC 715]** is that the court need not conduct an elaborate enquiry in sifting and weighing of 6 Crl.R.P.No.939 of 2023 the evidence at the time of framing charge. It is also not necessary to delve into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. In **Union of India v. Prafulla** **Kumar Samal and another [(1979) 3 SCC 4]** the Apex Court held that where the materials disclosed grave suspicion against the accused, which has not been properly explained, the court would be justified in framing a charge against the accused. In **Soma Chakravarty v. State through CBI [(2007) 5 SCC 403]** the Apex Court reiterated the said view by holding that when there exists a strong suspicion, a charge can be framed. It was also cautioned that a mere suspension as distinguished from grave suspicion is not enough to frame a charge. 6. In **Vijayan P. v. State of Kerala and another [(2010) 2 SCC 398]** the Apex Court held that the judge who considers a question where a charge is liable to be framed is not a mere Post office to frame the charge at the behest of the 7 Crl.R.P.No.939 of 2023 prosecution. The judge is expected to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In **State of Gujarat v. Dilipsinh Kishorsinh Rao (MANU/SC/1113/ 2023]** , the Apex Court held that at the stage of considering an application for discharge, the court shall proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate such materials in order to determine whether the facts emerging from the materials taken on its face value disclosed the existence of the ingredients necessary of the offences alleged. 7. The case of the witnesses Nos.1 and 2, who are husband and wife, is that on 17.12.2012 they have verified their gold ornaments kept in locker No.80 in main branch of Punjab National Bank. Locker No.80 was allotted to them when their earlier locker had to be broken open owing loss of its key from their possession. They realised that 44.5 sovereigns of their gold ornaments were stolen. They have described the nature of the ornaments, which include 10 gold 8 Crl.R.P.No.939 of 2023 coins they brought from the Gulf. It is seen that the gold ornaments, including 8 gold coins, which were pledged by the 2[nd] petitioner and recovered by the investigating officer from the bank were shown to the said witnesses. But those witnesses stated that none of the said ornaments belonged to them. He, however, stated that the 8 gold coins were similar to the coins lost from their locker. Various circumstances such as the 1[st] petitioner went to the area were the lockers are installed as evident from the visuals in the CCTV installed in the bank, he leads a luxury life although he hails from a poor family, he has constructed a palatial residential house; although, he is a last grade servant drawing a monthly salary of Rs.15,000/- alone and so on and so forth are also relied by the prosecution to prove the charge against the petitioners. 8. The only tangible evidence to prove the charge is the recovery of 8 gold coins, which were pledged in the name of the 2[nd] petitioner. The prosecution relies essentially on that evidence to establish the charge against the petitioners. None 9 Crl.R.P.No.939 of 2023 of the gold ornaments allegedly lost has been recovered. No evidence to prove any connection for the petitioners with such stolen gold ornaments is suggested by the prosecution. Therefore, the consideration shall be whether the evidence proposed to prove that the aforesaid 8 gold coins are stolen articles is sufficient to frame a charge against the petitioners. Unless the said facts is not proved, the other circumstances mooted by the prosecution do not have any importance. 9. As stated, witness Nos.1 and 2 could not positively assert that the gold coins which were pawned by the 2[nd] petitioner in the bank were the stolen ones. They only stated that the said gold coins were similar to the stolen ones. Obviously, the gold coins may not have any identifying feature for, all gold coins manufactured by the same process would be similar. Therefore, the said witnesses cannot be found fault with for not assertively identify the recovered gold coins as the stolen ones. The prosecution, however, is bound to adduce evidence to prove that the said coins are really stolen ones. 10 Crl.R.P.No.939 of 2023 10. Witness No.35 is the proprietor of Mangalya Jewellery at Melepalayath, Kozhikode. He stated before the investigating officer that about 15 years before the 1[st] petitioner had purchased 8 gold coins from his shop. Witness No.36 is the brother-in-law of the 1[st] petitioner. He stated before the investigating officer that in 1999, he gave 2 gold coins to the daughter of the 1[st] petitioner, which he had purchased from Muscat where he was working. CW37 is the husband of the 2[nd] petitioner's sister. He stated that in 2009, the 1[st] petitioner gave him a gold necklace and 10 gold coins for pledging. Witness No.40 was the Head Cashier of Punjab National Bank, Main Branch, Kozhikode. He stated that among the gold ornaments pledged by the 2[nd] petitioner in that bank, there were 8 gold coins and the same were produced before the police on 10.07.2015. The gold ornaments so pledged by the 2[nd] petitioner were 13 gold coins, one coin with a hook, two bangles and a jhumka ( _kammal_ ). Eight among the said gold coins were identified as similar to the stolen ones. The other gold ornaments were stated by witness Nos.1 and 2 not 11 Crl.R.P.No.939 of 2023 to be of them. From the evidence of witness Nos.37 and 38, it is seen that the aforesaid gold coins were pledged in their name as early as in 2009. After redeeming the said gold coins by the said witnesses by repaying the loan, they returned it to the 1[st] petitioner. The claim of the petitioners is that the said gold coins belong to them and the said fact is quite evident from the evidence proposed by the prosecution itself. 11. From the aforementioned facts, the probable view is that the petitioners had gold coins in question with them from 2009 onwards. The charge is specific to the effect that the theft had occurred between 23.07.2010 and 17.12.2012. When the evidence suggested by the prosecution itself establishes the fact that the gold coins in question were in the possession of the petitioners even before the alleged theft, it cannot be said that the case alleged against the petitioners is a probable one. So, the materials relied on by the prosecution is insufficient to make out a _prima facie_ case enabling the framing of a charge against the petitioners for the alleged offences. In the circumstances, this revision petition is 12 Crl.R.P.No.939 of 2023 allowed and on setting aside the impugned order dated 09.03.2023, C.M.P.No.2090 of 2022 in C.C.No.935 of 2019 before the Judicial Magistrate of the First Class-I, Kozhikode is allowed. The petitioners are discharged. Sd/- **P.G. AJITHKUMAR, JUDGE** pv/dkr 13 Crl.R.P.No.939 of 2023 ## **APPENDIX OF CRL.REV.PET 939/2023** **PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE AFORESAID FINAL REPORT IN FIRNO.49/CR/BOW-ILL/KKD/2015 WHICH WAS TAKEN ON FILE BY THE JFCM -I, KOZHIKODE AS C C NO.935/2019 ANNEXURE A2 THE ORIGINAL FIR IN CRIME NO. 634/2012 OF KOZHIKODE TOWN POLICE STATION ANNEXURE A3 THE CERTIFIED COPY OF THE STATEMENT UNDER SECTION 161 OF CW-1 TO CW -69 GIVEN TO THE ACCUSED UNDER SECTION 207 OF CR.P.C.** **ANNEXURE A4 TRUE COPY OF THE EXPLANATION SOUGHT FOR BY THE BANK FROM THE ACCUSED 1ST PETITIONER AS PER LETTER 07.03.2013 ANNEXURE A5 TRUE COPY OF THE EXPLANATION SOUGHT FOR BY THE BANK FROM THE ACCUSED 1ST PETITIONER AS PER LETTER 19.03.2013 ANNEXURE A6 THE REPLY DATED 27.03.2013 SUBMITTED BY THE 1ST PETITIONER**