Brajith Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945 CRL.REV.PET NO. 1057 OF 2023** **AGAINST THE COMMON ORDER IN CRL.MP 173/2019 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, THALASSERY** **CC 1/2018 OF COURT OF ENQUIRY COMMNR. & SPECIAL JUDGE, THALASSERY** ## **REVISION PETITIONER/PETITIONER/ACCUSED NO.2:** BRAJITH JOSEPH , AGED 44 YEARS, S/O. JOSEPH, KADALIKANDATHIL HOUSE, KONNACHAL(P.O) ERUMAD VILLAGE, THALOOR, NEELA GIRI DISTRICT, TAMIL NADU, PIN - 643239 BY ADV E.VIJIN KARTHIK ## **RESPONDENT/RESPONDENT/RESPONDENT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 BY ADV REKHA,SR PUBLIC PROSECUTOR RAJESH A SPL GP VIGILANCE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.R.P No.1057 of 2023 2 ## K.BABU, J. -------------------------------------- Criminal.R.P No.1057 of 2023 --------------------------------------Dated this the 5[th] day of December, 2023 ## O R D E R The petitioner, accused No.2 in C.C No.1/2018 on the file of the Court of the Enquiry Commissioner and Special Judge, Thalassery, challenges the order dated 07.07.2023, dismissing his application seeking discharge. He faces charges under Sections 7, 8 and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of the Indian Penal Code. 2. The prosecution case is as follows: The petitioner is a Commercial Tax Practitioner. Accused No.1 was a Commercial Tax Officer at Sulthan Bathery Division. Accused No.1 hatched a criminal conspiracy with the petitioner/accused No.2, and in pursuance of the criminal conspiracy, he demanded an illegal gratification of Rs.1 Lakh from T.Murukesh, the defacto complainant, through accused No.2/the petitioner to rectify the irregularities in the accounts and returns of M/s. Asian Agencies, a business concern run by the defacto complainant. Pursuant to the Crl.R.P No.1057 of 2023 3 conspiracy, the petitioner collected Rs.10,000/- on 29.12.2014 at 11:00 hrs from the defacto complainant and handed over the same to accused No.1. He accepted it. Accused Nos.1 and 2 persistently demanded Rs.90,000/- more to evade the legal fine that may come up to Rs.3 Lakhs. To mount pressure on the complainant, accused No.1 issued a demand notice to produce the accounts. Accused No.2 prompted the complainant to pay the remaining amount of illegal gratification to escape from the lawful fine. In pursuance of the said demand, accused No.1 accepted Rs.25,000/- on 07.01.2015 at 4.00 p.m. at his office in the presence of the petitioner as a motive or reward to avoid legal proceedings against him. The Vigilance had arranged a trap, and at the time of receipt of the amount by accused No.2, the Vigilance arrested accused No.1 and the petitioner. 3. The Vigilance and Anti-Corruption Bureau conducted the investigation in the matter and submitted the final report before the Court. In response to the summons, the petitioner and the other accused appeared. The petitioner filed CMP No.613/2019 under Section 239 Cr.P.C seeking discharge. The Trial Court dismissed the application, holding that the prosecution could prima facie Crl.R.P No.1057 of 2023 4 establish the charges against the petitioner. The Trial Court, as per order dated 07.07.2023, framed charges against the petitioner and the other accused. 4. Heard Sri.E.Vijin Karthik, the learned counsel appearing for the petitioner/accused No.2 and Smt.Rekha.S, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that it was when the defacto complainant called the petitioner over mobile phone he came to the office of accused No.1, and he had no intention to give bribe to accused No.1 at any point of time. The learned counsel further submitted that the materials relied on by the prosecution do not prima facie reveal the offences alleged. 6. The learned Senior Public Prosecutor, relying on the FIS and other circumstances, submitted that the prosecution could prima facie establish the offences alleged against the petitioner and the other accused. The trap was laid based on the statement given by the defacto complainant. In the FIS, the defacto complainant stated that on 29.12.2014, the petitioner collected a sum of Rs.10,000/- from him and handed over the same to accused No.1. The defacto complainant further stated in the FIS that there was Crl.R.P No.1057 of 2023 5 persistent demand from the side of the petitioner and accused No.1 to give Rs.90,000/- as bribe to evade the legal fine that may come up to Rs.3 Lakhs. His specific case is that to exert pressure on him a demand notice was issued to him and the petitioner, who is his Tax Practitioner, prompted him to pay the remaining amount of illegal gratification. 7. The petitioner was present in the room when the decoy notes were allegedly handed over to accused No.1 by the defacto complainant. The phenolphthalein test conducted in the hands of accused No.1 turned positive. This is one of the circumstances pointing towards the credibility of the version given by the defacto complainant in the FIS. The statement of the victim is that the petitioner, being a Tax Practitioner whom he approached to submit accounts relating to his firm, persistently demanded him to pay Rs.90,000/- more to evade legal fine. 8. Sections 239 and 240 of the Code of Criminal Procedure deal with discharge and framing of charge. 9. The obligation to discharge the accused under Section 239 Cr.P.C. arises when “the Magistrate considers the charge against the accused to be groundless.” Crl.R.P No.1057 of 2023 6 10. The primary consideration at the stage of framing charge is the test of the existence of a prima facie case. The probative value of materials on record is not to be gone into at this stage. 11. The Apex Court in Onkar Nath Mishra and others v. State (NCT of Delhi) and another [(2008) 2 SCC 561] while considering the nature of evaluation to be made by the Court at the stage of framing of charge held thus:- “11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. 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 a ground for presuming that the offence has been committed and not a 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 alleged would justify the framing of charge against the Accused in respect of the commission of that offence.” ## 12. In State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC ## 659] , while dealing with the question of framing charge or discharge the Apex Court held thus: “32...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the Accused might have Crl.R.P No.1057 of 2023 7 committed the offence it can frame the charge, though for conviction the conclusion is required to be that the Accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” ## 13. In State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338] the Apex Court held thus:- “7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the Accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the Accused.” ## 14. In Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another [(2013) 11 SCC 476] , the Apex Court observed that while framing charges the Court is required to evaluate the materials and documents on record to decide whether the facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. It was further held that the Court cannot speculate into the truthfulness or falsity of the allegations, contradictions and inconsistencies in the statement of witnesses at the stage of discharge. 15. Section 239 envisages a careful and objective consideration of the question whether the charge against the Crl.R.P No.1057 of 2023 8 Accused is groundless or whether there is ground for presuming that he has committed an offence. What Section 239 prescribes is not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the Accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is "ground for presuming" that the Accused has committed the offence triable under the chapter, he is required by Section 240 to frame in writing a charge against the Accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the Accused is not entitled to discharge Under Section 239, that there is, on the other hand, ground for presuming that he has committed an offence triable under Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea, or face the trial {See: V.C. Shukla v. State through CBI (AIR 1980 SC 962) }. 16. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja [(AIR 1980 SC 52)] the Apex Court stated thus: Crl.R.P No.1057 of 2023 9 “At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.” ## 17. In State by Karnataka Lokayukta, Police Station, Bengaluru ## v. M.R.Hiremath [(2019) 7 SCC 515] the Apex Court held thus: “25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 Cr.P.C. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. 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. In State of T.N. v. N. Suresh Rajan (2014) 11 SCC 709), adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) 29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the Accused has been made out. To put it differently, if the court thinks that the Accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the Accused has committed the law does not permit a Crl.R.P No.1057 of 2023 10 mini trial at this stage.” 18. In State through Deputy Superintendent of Police v. R. Soundirarasu and Ors. (AIR 2022 SC 4218) the Apex Court while dealing with the scope of Section 239 Cr.P.C. held thus: “61. Section 239 of the Code of Criminal Procedure lays down that if the Magistrate considers the charge against the Accused to be groundless, he shall discharge the Accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the Accused has committed the offence. The word 'groundless' used in Section 239 of the Code of Criminal Procedure means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the Accused. …...................... 73. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the Accused can be said to be "groundless". 74. The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the Accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.” 19. Therefore, the obligation to discharge the accused under Section 239 Cr.P.C. arises when the Magistrate/Special Judge considers the charge against the accused to be groundless that is, Crl.R.P No.1057 of 2023 11 there is no legal evidence or when the facts are such that no offence is made out at all and no detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken. 20. I have gone through the materials placed before this Court. I am of the view that there are factual ingredients constituting the offences alleged and there is nothing to show that the charges levelled against the petitioner are groundless. 21. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 Cr.P.C is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to Crl.R.P No.1057 of 2023 12 be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. {Vide: Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [(2015) 3 SCC 123], Munna Devi v. State of Rajasthan & Anr [(2001) 9 SCC 631)] and Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation [(2018) 16 SCC 299)] }. 22. In Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation [(2018) 16 SCC 299)] the Apex Court held that interference in the order framing charges or refusing to discharge is called for in the rarest of rare cases only to correct a patent error of jurisdiction. 23. Yet another aspect that requires consideration is that the Trial Court has already framed charges against the petitioner. In Minakshi Bala v. Sudhir Kumar [(1994) 4 SCC 142] , the Apex Court has considered the jurisdiction of the High Court under Section 482 Cr.P.C to quash criminal proceedings in which charges are framed Crl.R.P No.1057 of 2023 13 in accordance with Section 240 Cr.P.C on a finding that prima facie case had been made out. In Minakshi Bala v. Sudhir Kumar , the Apex Court in paragraph 7 of the judgment held thus: “If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out – as has been done in the instant case – the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Section 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.” 24. The finding of the Court below that it came to the conclusion that the commission of the offences alleged against the petitioner is a probable consequence, requires no interference in this revisional jurisdiction. 25. This Court is of the view that the order impugned is not affected with any patent error of jurisdiction. All the challenges in this revision petition therefore fail. This Crl.R.P No.1057 of 2023 14 Court fails to find that the impugned order is untenable in law or grossly erroneous or unreasonable. The Criminal Revision Petition stands dismissed. Sd/K.BABU, JUDGE KAS