Crl.R.P. Nos. 828 & 829/2018 (PRADEESH CHACKO S/O CHACKOCHAN; RAJU JOSEPH S/O N.T. JOSEPH v. STATE OF KERALA)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** **Crl.Rev.Pet.No. 828 of 2018** **AGAINST CRL.M.P.984/2018 IN SC 118/2018 of SESSIONS COURT, ERNAKULAM DATED 27-06-2018** **REVISION PETITIONER/ACCUSED NO.11:** **PRADEESH CHACKO S/O. CHACKOCHAN, CHERUPARAMBIL HOUSE, CHUNANGAMVELI, ALUVA, ERNAKULAM.** **BY ADV. SRI.S.SREEKUMAR (SR.) ADV. SRI.P.MARTIN JOSE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY DY. S.P OF POLICE, PERUMBAVOOR REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.SUMAN CHAKRAVARTHY, SR.PUBLIC PROSECUTOR** Crl.R.P. 828 & 829/18 **-:2:-** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.12.2018, ALONG WITH Crl.Rev.Pet.829/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **-:3:-** Crl.R.P. 828 & 829/18 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** **Crl.Rev.Pet.No. 829 of 2018** **AGAINST CRL.M.P.982/2018 IN SC 118/2018 of SESSIONS COURT, ERNAKULAM DATED 27-06-2018** **CRIME NO. 297/2017 OF NEDUMBASSERY POLICE STATION , Ernakulam** ## **REVISION PETITIONER/PETITIONER/12TH ACCUSED:** **RAJU JOSEPH AGED 45 YEARS, S/O N.T.JOSEPH ADVOCATE, PANTHAPLACKAL HOUSE THOPPIL LANE, BROADWAY ERNAKULAM** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.SHIJU VARGHESE SRI.S.KRISHNAKUMAR** ## **RESPONDENT/RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682 031** **SRI.SUMAN CHAKRAVARTHY, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.12.2018, ALONG WITH Crl.Rev.Pet.828/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P. 828 & 829/18 ## **-:4:-** ## **“C.R.”** ## **-----------------------------------------Crl.R.P. Nos.828 & 829 of 2018 ------------------------------------------** ## **ORDER** Petitioners are two among the twelve accused in S.C. No.118 of 2018 pending in the court of the Sessions Judge, Ernakulam. In the final report the offences alleged are under Sections 120B, 201, 212, 342, 366, 376(D) and 506 IPC and Sections 66E and 67A of the Information Technology Act. 2. The incident on the basis of which the case was registered was the result of a conspiracy allegedly entered into between the first and eighth accused to commit rape on the victim and video the incident. As a consequence of it a conspiracy later took place involving the first accused and others excluding the petitioners, pursuant to which they abducted the victim and ravished her in a vehicle. They also recorded the incident on a mobile phone. In the final report initially filed by the investigating officer the petitioners were not arraigned as Crl.R.P. 828 & 829/18 ## **-:5:-** accused. According to the prosecution, in the further investigation involvement of the petitioners was revealed. Accordingly, a supplementary final report was filed. The petitioner in Crl.R.P. No.828 of 2018 is the 11[th] accused and the petitioner in Crl.R.P. No.829 of 2018 is the 12[th] accused in the case. The former is an Advocate practicing in this court and the latter an Advocate attached to the office of the former. They are charged with having harboured accused 1 and 4 with intent to screen the latter from legal punishment. According to the prosecution the first accused entrusted to the 11[th] accused the mobile phone which he used to record the incident, and a memory card; the first accused also entrusted to him a bag containing the dress he was wearing during the incident; the 11[th] accused handed over the phone and the memory card to the 12[th] accused; they concealed the articles with the knowledge that they were material evidence in the case. Later, the 12[th] accused broke up the mobile phone into pieces and threw them into the backwaters of Kochi with the intention of destroying the evidence; the police seized the bag and its contents and the memory card. The 11[th] and 12[th] accused filed applications under Crl.R.P. 828 & 829/18 **-:6:-** Section 227 Cr.P.C. for discharge. By the impugned order the learned Sessions Judge dismissed the applications. Its correctness is under challenge. 3. The case of the petitioners stands on a different footing from the case of the other accused and so the case of the former has to be considered independent of the case of the latter. 4. Sections 227 and 228 Cr.P.C. Should be read together. They are extracted below: S.227 Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. S.228 Framing of charge. (1) if, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may **-:7:-** Crl.R.P. 828 & 829/18 be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 5. Section 227 Cr.P.C. directs that before a decision is taken whether charge should be framed or whether the accused should be discharged, the court shall consider the records of the case and the documents submitted along with it and the court should hear the submissions of both parties. The expression “hearing the submissions” means hearing the submission of the accused on the record of the case as filed by the prosecution and the documents submitted therewith as held by the Supreme Court in **Ajay Kumar Parmar v. State of Rajasthan** (AIR 2013 SC 633). 6. In **P.Vijayan v. State of Kerala and Another** (AIR Crl.R.P. 828 & 829/18 ## **-:8:-** 2010 SC 663) the Apex Court has observed that the words “not sufficient ground for proceeding against the accused” appearing in Section 227 Cr.P.C. show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has 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 and in assessing this fact it is not necessary for him to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really, the function of the court, after the trial starts. 7. The learned Senior Public Prosecutor has brought to my notice the decisions of the Supreme Court in **State of Bihar v. Ramesh Singh** (AIR 1977 SC 2018) and **Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and Another** (1989) 1 SCC 715). In **State of Bihar v. Ramesh Singh** (supra) the Supreme Court has observed that “reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously Crl.R.P. 828 & 829/18 ## **-:9:-** judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S.227 or S.228 of the Code. At that stage 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.” In **Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and Another** (Supra) the Supreme Court has observed that “the court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep 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. No more need be enquired into.” At the same time the following observation of the Apex Court in **State of** Crl.R.P. 828 & 829/18 **-:10:-** **Karnataka v. L.Muniswamy and Others** (AIR 1977 SC 1489) also is relevant. “For the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses, comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.” 8. It is well settled that if materials relied on by the prosecution establish a prima facie case a charge has to be framed against the accused and he cannot be discharged. There have been several decisions of the Supreme Court as to what a prima facie case is. The learned Senior Public Prosecutor relies on the decision of the Supreme Court in **Om Wati (SMT) and Another v. State, Through Delhi Admn and Others** (2001) 4 SCC 333) wherein it is held that “at the stage of passing the order in terms of Section 227 of the Code, the court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to Crl.R.P. 828 & 829/18 ## **-:11:-** frame charge in terms of Section 228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the court can discharge the accused. The court is not required to enter into meticulous consideration of evidence and material placed before it at this stage. This court in Sree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia cautioned the High Courts to be loath in interfering at the stage of framing the charges against the accused. Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the court in the face. The opinion on many matters can differ depending upon the person who views it. There may be as many opinions on a particular point, as there are courts but that would not justify the High Court to interdict the trial. Generally, it would be appropriate for the High Court to allow the trial to proceed.” 9. Yet another decision upon which the learned Senior Public Prosecutor relies is **State of Maharashtra Etc. Etc. v.** Crl.R.P. 828 & 829/18 **-:12:-** **Som Nath Thapa Etc. Etc.** (AIR 1996 SC 1744). The three Judge Bench has held: “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 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 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.” 10. The court is not to seek independent corroboration at the stage of framing charge. ( **State of Maharashtra v. Priya Sharan Maharaj and Others** (AIR 1997 SC 2041). 11. The learned Senior Public Prosecutor would further submit that for the court to frame charge grave suspicion is sufficient. The Supreme Court has held in **Union of India v. Prafulla Kumar Samal & Another** (AIR 1979 SC 366): “where the materials disclose grave suspicion against the accused which Crl.R.P. 828 & 829/18 ## **-:13:-** has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.” This has been reiterated in **Soma Chakravarty v. State Through CBI** (2007) 5 SCC 403) wherein the court has said: “Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. Suspicion cannot alone, without anything more, it is trite, form the basis therefor or held to be sufficient for framing charge.” For this purpose the court should accept as true the materials brought on record by the prosecution. It cannot go into the probative value of the materials on record. (See paragraph 10). The following observation of the Supreme Court in **Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Others** (AIR 1980 SC 52) deserves notice: “At the stage of framing charge even a strong suspicion founded upon material, and presumptive opinion, would enable the court in framing charge against the accused.” 12. At the stage of framing a charge the court has the undoubted power to sift and weigh evidence. But that sifting Crl.R.P. 828 & 829/18 ## **-:14:-** and weighing of the evidence does not allow it to appreciate the evidence. In **Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and Others** (AIR 1990 SC 1962) the Supreme Court has observed: “At this stage the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken on their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.” The court is not supposed to weigh the evidence in a sensitive balance ( **State of Bihar v. Ramesh Singh** (1977) 4 SCC 39). The probative value of the materials on record cannot be gone into ( **State of Maharashtra v. Som Nath Thapa** (supra). 13. It is true that for a court to frame charge grave suspicion is sufficient. But the objectivity, which is the essence of a judicial order, cannot be given a go by. The grave suspicion should arise from the materials produced by the prosecution in Crl.R.P. 828 & 829/18 **-:15:-** support of the Final Report. That apart, only those materials which are admissible in evidence can be taken into consideration. Materials like confession of an accused cannot be taken into account. 14. Learned Senior Counsel appearing for the petitioners submits that the evidence the prosecution proposes to adduce does not reveal a prima facie case. 15. What are the materials the prosecution relies on to prove its accusation against the 11[th] and 12[th] accused? Are they sufficient to make out a prima facie case? 16. The prosecution has cited CWs 143, 144, 174, 175, 176, 216, 217, 292, 311, 349, 352, 354 and 356 to establish its allegation against accused 11 and 12. 17. One of the two offences with which the petitioners are charged falls under Section 212 IPC. They harboured the 1[st] and 4[th] accused though they knew that the latter were offenders in a rape case; their intention was to screen the said accused from legal punishment: This is the prosecution case. 18. To prove the above allegation the prosecution mainly relies on the statement of CW356, who was a staff of accused 11 Crl.R.P. 828 & 829/18 ## **-:16:-** and 12, who are advocates. He has been cited to prove that at about 6 p.m. on 22.2.2017 the first accused came to the office of accused 11 and 12. When he came, accused 11 and 12 were not in their office. The 1[st] accused contacted the 11[th] accused on the mobile phone of CW356. The 1[st] accused waited there till 6.30 p.m., when the 11[th] accused came to the office. CW356 does not know when the 1[st] accused left the office. But the office was closed at 7.50 p.m. At about 9.45 a.m. on the next day CW356 reached his office. The 11[th] accused told him that accused 1 and 4 were upstairs. The advocates left the office by 10.00 in the morning. Thereafter, at about 1.00 in the afternoon the 11[th] accused asked CW356 to send the 1[st] and 4[th] accused to the court so that they might surrender before the Magistrate, CW356 allegedly told the police. 19. Admittedly, the first accused met the 11[th] accused at his office and consulted him to engage him as the counsel of himself and the 4[th] accused. He spent only a few hours in the office of the Advocates. The 11[th] accused filed vakalath for the 1[st] and 4[th] accused in the criminal court in which they wanted to surrender. It was in discharge of his professional duties the Crl.R.P. 828 & 829/18 **-:17:-** 11[th] accused met the 1[st] and 4[th] accused. By no stretch of imagination it can be said that the 11[th] accused, or for that matter the 12[th] accused, harboured the 1[st] and 4[th] accused with the intention of screening them from legal punishment. 20. The second offence the 11[th] and 12[th] accused are alleged to have committed is the one under Section 201 IPC. They are said to have caused disappearance of evidence of the commission of the offences by the other accused. Their intention was allegedly to screen the other accused from legal punishment. 21. According to the prosecution the 1[st] accused entrusted to the 11[th] accused at his (advocate) office a bag containing certain things including the dress the 1[st] accused was wearing at the time of the incident. The mobile phone used to record the incident along with a memory card also came into the custody of the 11[th] accused. The 11[th] accused, thereafter, gave custody of those articles to the 12[th] accused and the SIM card of the mobile phone which was used during the incident. 22. The investigating officer (CW352) seized the bag and its contents from the office of the 11[th] and 12[th] accused. CW143 Crl.R.P. 828 & 829/18 ## **-:18:-** and CW144 are witnesses in the mahazar. The 12[th] accused later handed over to the investigating officer the memory card. CW175, CW176 and CW311 have been cited to prove this fact and the fact they saw the contents of the memory card. CW349 Inspector of Police produced the 12[th] accused and the memory card before the Dy.S.P. (CW354). So all the articles except the mobile phone the 1[st] accused allegedly entrusted to the 11[th] accused were seized by the investigating officer. The prosecution cannot be heard to say that accused 11 and 12 caused disappearance of these articles. Section 201 IPC is not attracted so far as these articles are concerned. 23. The definite case of the prosecution is that the mobile phone which was used to record the incident of rape was entrusted to the 11[th] accused by the first accused and the 11[th] accused in his turn entrusted it to the 12[th] accused and the 12[th] accused broke it up and threw off the pieces into the backwaters of Kochi. 24. The only evidence the prosecution proposes to adduce to prove that the 12[th] accused destroyed the mobile phone is the mahazar prepared by the investigating officer describing the spot Crl.R.P. 828 & 829/18 **-:19:-** at which the 11[th] accused allegedly threw off the pieces of the mobile phone. CW174 and CW292 have been cited to prove preparation of the mahazar. This mahazar will not prove the prosecution case that the 11[th] accused broke up the mobile phone and threw the broken pieces into the backwaters. 25. In the final report it is shown that attempt is still being made to recover the mobile phone. This is inconsistent with the prosecution case that it was destroyed. 26. The prosecution would say that the 11[th] accused pointed out to the investigating officer the place at which he threw away the broken pieces of the mobile phone. The alleged pointing out of the place by the 11[th] accused is a statement. But no object could be recovered pursuant to the information allegedly given by the 12[th] accused. It was allegedly in pursuance of the information conveyed by the 12[th] accused in the course of the statement made by him under Section 161 Cr.P.C. the police accompanied by him went to the above spot. The prohibition contained in Sections 25 and 26 of the Evidence Act and the embargo created by Section 162 Cr.P.C. become lifted only when the object is recovered pursuant to the information Crl.R.P. 828 & 829/18 **-:20:-** given by the accused. In **State of Rajasthan v. Bhup Singh** (1997) 10 SCC 675) the Supreme Court held that discovery becomes complete only on recovery of the object. The information allegedly given by the 12[th] accused is inadmissible in evidence since no object was recovered. In **Udai Bhan v. The State of Uttar Pradesh** (AIR 1962 SC 1116) and **Himachal Pradesh Administration v. Om Prakash** (AIR 1972 SC 975) the Apex Court has held: “A discovery of a fact includes the object found, the place from which it is procured and the knowledge of the accused as to its existence.” The information allegedly given by the 12[th] accused is inadmissible in evidence. The mahazar of the place at which the 12[th] accused allegedly threw away the broken pieces of the phone will not prove anything which the prosecution is required to prove to establish its allegation of destruction of the phone. 27. Thus, none of the materials the prosecution proposes to rely on to prove that the 12[th] accused destroyed the mobile phone are sufficient to prove its allegation. 28. The police seized the car bearing registration No.TN 10 AE 4118 which was being used by the 12[th] accused. This has Crl.R.P. 828 & 829/18 **-:21:-** been sought to be proved by CW216, CW217 and CW311. The car has no evidentiary value. 29. CW352 searched the office and CW354 the house of the 11[th] accused. 30. The above facts which are sought to be proved through CW216, CW217, CW311, CW352 and CW354 are not at all relevant and they will not prove any of the ingredients of the offence under Section 201 IPC. 31. A question may arise whether the 11[th] or 12[th] accused attempted to destroy the memory card which was allegedly produced by the 12[th] accused before the police. What is the evidentiary value of the memory card. It only contains the photograph of some of the accused, which has been sought to be proved through CW175 and CW176. The prosecution would say that it was accessed for the last time two days after the incident. The memory card has no evidentiary value so far as the case against the petitioner is concerned. 32. The impugned order is liable to be set aside. The petitioners are entitled to be discharged. Crl.R.P. 828 & 829/18 ## **-:22:-** In the result, these Criminal Revision Petitions are allowed. The impugned order is set aside. The petitioners are discharged. ## **Sd/-** **K.ABRAHAM MATHEW JUDGE** vps Crl.R.P. 828 & 829/18 **-:23:-** ## **APPENDIX IN CRL.R.P. 829/2018** ## **PETITIONER'S/S' EXHIBITS:** ## **ANNEXURE A** **TRUE COPY OF THE FURTHER FINAL REPORT SUBMITTED BY THE INSPECTOR OF POLICE, PERUMBAVOOR DATED 22.11.2017 IN CRIME NO.197/2017 OF NEDUMBASSERY POLICE STATION, ERNAKULAM DISTRICT ALONG WITH A REPORT ADDRESSED TO THE JURISDICTIONAL MAGISTRATE** **ANNEXURE B TRUE COPY OF THE OBJECTION PREFERRED BY THE PROSECUTION TO CRIMINAL M.P. NO.982 OF 2018 IN S.C. NO.118 OF 2018 ON THE FILES OF THE COURT OF SESSION, ERNAKULAM** ## **RESPONDENT'S/S' EXHIBITS:** ## **NIL** **/TRUE COPY/** **VPS PS TO JUDGE**