Babu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942** **Crl.Rev.Pet.No.603 OF 2020** **AGAINST THE PROCEEDINGS DATED 27.07.2020 IN CRL.M.P.2614/17 IN CC 3/2017 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM** ## **REVISION PETITIONER/PETITIONER:** **BABU, S/O C.K. NARAYANAN, AGED 61, KANAKAN HOUSE, WARD NO.4, CHERTHALA ALAPPUZHA.** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031** ## **SRI B JAYASURYA-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.02.2021, THE COURT ON 11.02.2021 PASSED THE FOLLOWING:** Crl.R.P.No.603/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.603 of 2020 ---------------------------------------------Dated this the 11[th] day of February, 2021 ## **O R D E R** The revision petitioner is the first accused in the case C.C.No.3 of 2017 pending in the Court of the Enquiry Commissioner and Special Judge, Kottayam. 2. The offences alleged against the accused in the case are punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and under Sections 409, 468, 471, 477A and 120B of the Indian Penal Code. 3. The prosecution case, as far as the petitioner is concerned, is as follows. The petitioner was the Taluk Supply Officer, Cherthala during the period from 25.08.2006 to 10.12.2007. The accused M.Abdul Samad was the Rationing Inspector, Cherthala South during the period from 16.04.2007 to Crl.R.P.No.603/2020 3 30.11.2007. The accused K.S.Santhosh was the licensee of the ration shop ARD No.129. The petitioner and the other two accused mentioned above entered into a conspiracy and pursuant to such conspiracy, with the intention of allowing the accused Santhosh to get pecuniary gain, the petitioner and the accused Abdul Samad allotted excess quantity of rice to the accused Santhosh in the Andyodaya Anna Yojana (AAY) scheme and thereby caused loss to the Government. It is alleged that the accused Santhosh had made unauthorised indents for rice on the basis of ration cards which were really not included in the AAY scheme. It is alleged that the petitioner and the accused Abdul Samad, without verifying the indents and without preparing the quarterly abstracts, allotted the rice. It is also alleged that the accused had forged and fabricated records relating to the ration shop ARD No.129 for allotment of excess rice to the licensee of the shop. 4. The petitioner filed an application as Crl.M.P.No.2614/2017 in the trial court under Section 239 of the Code of Criminal Procedure, 1973 (for short 'the Code') seeking Crl.R.P.No.603/2020 4 discharge. 5. The application for discharge filed by the petitioner was considered by the trial court along with the application for the same relief filed by another accused. As per the order dated 27.7.2020, the trial court dismissed both applications. 6. The petitioner has filed this revision petition challenging the legality and propriety of the order passed by the trial court, dismissing the application for discharge filed by him. 7. Heard learned counsel for the petitioner and the learned Public Prosecutor. 8. Learned counsel for the petitioner has made available, a copy of the application for discharge filed by the petitioner in the trial court, for perusal of this Court. The prayer for discharge is made in this application on the following grounds. (1) The charge does not contain the alleged amount misappropriated by the petitioner. (2) The petitioner took charge as Taluk Supply Officer at Cherthala only during October, 2006. He has not committed any act as alleged by the prosecution. (3) The entire materials produced by the prosecution, prima facie, do not make Crl.R.P.No.603/2020 5 out a case to frame charge against the petitioner. 9. There is no allegation against the petitioner that he misappropriated money. Therefore, there was no question of mentioning any such amount in the charge filed by the Vigilance and Anti-Corruption Bureau against him. Misappropriation was made of the rice allotted in the AAY scheme. It was allegedly committed by the licensee of the ration shop. The allegation against the petitioner is that he allowed the licensee of the ration shop to commit such misappropriation and it was done pursuant to the conspiracy hatched by the accused. 10. It is stated that the petitioner took charge as Taluk Supply Officer, Cherthala only during October, 2006. The prosecution case, as far as the petitioner is concerned, is with regard to the acts or omissions on his part during the period from 25.08.2006 to 10.12.2007. This period covers the period during which the petitioner was the Taluk Supply Officer at Cherthala. 11. The only other contention raised by the petitioner is that the materials produced by the prosecution, _prima facie_ , do not make out a case against him. The trial court has referred to Crl.R.P.No.603/2020 6 the statements of the witnesses CW6, CW9 and CW20 to CW38 and on the basis of such statements found that, _prima facie_ , the materials would show that by the act of the petitioner and the other accused in the case, the accused Santhosh, the licensee of the ration shop, could manage misappropriation of rice thereby causing loss to the Government. Learned counsel for the revision petitioner has not made any attempt before this Court to refer to the statements of the aforesaid witnesses and to show that such statements do not form sufficient basis for the allegations raised against the petitioner, attracting the ingredients of the offences alleged against him. 12. The attempt made by the petitioner in the revision petition filed before this Court is to show that it was the duty and the responsibility of the Rationing Inspectors concerned to prepare the list of persons who were eligible to get rice in the AAY scheme and to include the ration cards of such persons in that scheme and to prepare the necessary documents in that regard. It is also the contention of the petitioner that the conversion of the ration cards to the AAY scheme had taken place Crl.R.P.No.603/2020 7 before he took charge as Taluk Supply Officer at Cherthala and that his predecessors-in-office had already approved such conversion and that he had no occasion to check the same as there was no conversion of ration cards during his tenure as Taluk Supply Officer. 13. None of the above contentions finds a place in the discharge application filed by the petitioner in the trial court. The impugned order does not show that such contentions had been advanced before the trial court by the petitioner even during the hearing of the application for discharge. 14. While considering the application for discharge filed by the petitioner, along with the application for the same relief which was filed by another accused, the trial court failed to consider the specific allegations against the petitioner separately to find out whether there are materials produced by the prosecution to show his involvement in the conversion of the ration cards to AAY scheme and allotment of excess rice to the licensee of the ration shop ARD No.129 and also preparation of the relevant documents in that regard. Paragraph 11 of the impugned order would show Crl.R.P.No.603/2020 8 that the trial court found the petitioner as well as the other accused who filed the application for discharge, _prima facie_ , liable for the misappropriation of rice made by the licensee of the ration shop. 15. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence (See **State v. Hiremath : AIR 2019 SC 2377** ). At that stage, the Court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is ground for presuming that the offence has been committed and not whether any ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence Crl.R.P.No.603/2020 9 alleged would justify the framing of charge against the accused in respect of the commission of that offence (See **Onkar Nath Misra v. State : (2008) 2 SCC 561** ). 16. In the instant case, the trial court has not specifically considered whether the materials produced by the prosecution, if accepted as true, would attract the ingredients of the offences alleged against the petitioner. It is incumbent upon the trial court to evaluate the materials produced by the prosecution on the premise that they are true and to find out whether they bring out or disclose the ingredients of the offences alleged against the accused. The trial court has not undertaken such an exercise. The trial court has not stated whether all the offences or only some of the offences alleged against the petitioner are, _prima facie_ , made out against him. 17. It is not necessary for an accused to file an application seeking the relief of discharge (See **State v. Mohanachandran : 2017 (4) KHC 297** ). Therefore, inspite of the fact that the application for discharge filed by the petitioner does not contain the contentions raised before this Court, I find Crl.R.P.No.603/2020 10 that another opportunity can be granted to him to raise all his contentions before the trial court with regard to the plea for discharge made by him. The matter has to be remanded to the trial court especially for the reason that the trial court has not considered whether the materials produced by the prosecution, _prima facie_ , attract the ingredients of all the offences alleged against the petitioner. 18. Consequently, the revision petition is allowed. The impugned order, as far as it relates to the dismissal of the application for discharge filed by the petitioner, is set aside. The trial court shall consider afresh the application for discharge filed by the petitioner and pass appropriate orders in accordance with law. The petitioner is at liberty to raise before the trial court all his contentions with regard to his plea for discharge, including contentions which are not specifically raised or mentioned by him in the discharge application filed by him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** **jsr** Crl.R.P.No.603/2020 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE ORDER DATED 27.7.2020 IN CRL M.P 2615/17 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOTTAYAM TRUE COPY OF THE ORDER DATED 15.12.2017 IN M.C. 165/15.** **ANNEXURE A2 TRUE COPY OF THE ORDER OF THE FOOD AND CIVIL SUPPLY DEPARTMENT DATED NIL. ANNEXURE-A3 TRUE COPY OF THE RELEVANT PORTION OF THE CIVIL SUPPLIES MANUAL. ANNEXURE A4 TRUE COPY OF THE CIRCULAR DATED 6.6.1976.** **RESPONDENTS' EXHIBITS : NIL** TRUE COPY PS TO JUDGE