Crl.R.P.No.1603 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945 CRL.REV.PET NO. 1603 OF 2018** **AGAINST THE ORDER DATED 03.09.2018 IN CRL.MP.749A/2017 IN SC 429/2012 OF ASSISTANT SESSIONS COURT, THALASSERY CRIME NO.175/2007 OF MATTANNUR POLICE STATION, KANNUR** ## **REVISION PETITIONER/ACCUSED NO.3:** ## **AJITHKUMAR,** **AGED 43 YEARS, S/O KRISHNAN NAIR, DRIVER, P.C.5417, AIR CAMP, KANNUR (NOW RESIDING AT IRIKKUR POLICE STATION).** **BY ADVS. JAYASREE K.P. SHRI.BABU P.P.** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** ## **SHO MATTANNUR** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **SMT SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 15.11.2023, THE COURT ON 23.11.2023 DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.1603 of 2018 ## **P.G. AJITHKUMAR, J.** **---------------------------------------------------** **Crl.R.P.No.1603 of 2018** **---------------------------------------------------Dated this the 23[rd] day of November, 2023** ## **O R D E R** The petitioner is the 3rd accused in S.C.No.429 of 2012 pending before the Additional Assistant Sessions Judge, Thalassery. He along with accused Nos.1 and 2 filed a petition for discharge under Section 239 (sic. Section 227) of the Code of Criminal Procedure, 1973 (Code). As per the order dated 03.09.2018 the court below dismissed that petition. Aggrieved by that order, this revision petition under Section 397 read with Section 401 of the Code is filed by the petitioner. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. S.C.No.429 of 2012 arose on a private complaint. The complaint was filed alleging that the police jeep driven by the petitioner had hit at the back of motorcycle bearing Reg.No.KL-13Q-1696 ridden by Ejas with another on the pillion, resulting in both of them falling down and Sri.Ejas succumbing to the injuries he sustained in that incident. After necessary inquiry, the Magistrate 3 Crl.R.P.No.1603 of 2018 committed the case for the offence punishable under Section 304 read with Section 34 of the Indian Penal Code, 1860 (IPC). Before the Assistant Sessions Court, the petitioner along with accused Nos.1 and 2 filed Crl.M.P.No.749A of 2017 contending that even on accepting that the entire allegations are true, the offence that would be constituted is under Section 304A of the IPC alone and not under Section 304 of the IPC. They further contended that being police officers on duty, sanction as contemplated in Section 197 of the Code was mandatory to take cognizance of the offence and in the absence, the prosecution is bad in law. 4. The defacto complainant opposed that petition by filing a counter. He contended that the statement of nine witnesses recorded by the committal Magistrate sufficiently substantiated commission of the offence punishable under Section 304 of the IPC and since the petitioner caused to hit at the back of the motorcycle purposefully and the other accused available in the jeep were also privy to do so, the act can never be described as one done in discharge of their duty or purported duty as public servants. Therefore, he pleaded that no sanction was required. 4 Crl.R.P.No.1603 of 2018 5. The learned counsel for the petitioner would submit that a totally false story was set out by the complainant and in fact the deceased sped away in his motorcycle disregarding the direction of the police personnel to stop for checking and in that course, his motorcycle hit against a mini lorry. Regarding that incident, crime No.107 of 2006 was registered and it was closed as abated owing to his death. It was thereafter the father of the deceased filed the complaint with false allegations. The learned counsel invited my attention to a copy of the accident registercum-wound certificate concerning examination of the deceased Sri.Ejas following the incident. It is stated therein that the motorcycle hit at the back of a TATA-407 vehicle. The learned counsel urges that the said fact would falsify the allegations levelled against the petitioners. 6. Such an accident register-cum-wound certificate is not part of the prosecution records. Section 227 of the Code says that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submission of the accused and the prosecution, the judge considers that there is no sufficient ground for proceeding 5 Crl.R.P.No.1603 of 2018 against the accused, he shall discharge the accused. The said provisions do not allow to consider the documents produced by the accused in order to decide whether there is sufficient ground or not to proceed against the accused (See: **State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568]** ). Therefore, the copy of the accident register-cum-wound certificate made available for the perusal cannot be looked into. 7. After considering the statements of the complainant and witnesses, the court below recorded a _prima facie_ satisfaction that there is sufficient ground to proceed against the accused. What is required at this stage is not appreciation of evidence but, sifting and weighing of the evidence for the limited purpose of deciding whether there is ground for proceeding against the accused. The criteria is, if the proposed evidence is taken on its face value, would that be sufficient to establish the case of the prosecution. 8. 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. 6 Crl.R.P.No.1603 of 2018 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 the material 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. 7 Crl.R.P.No.1603 of 2018 9. 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 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 existence of the ingredients necessary of the offences alleged. 10. Viewed in the light of the law laid down in the aforesaid decisions, it cannot be said that the findings recorded by the court below that there was sufficient ground to proceed against the petitioners and the co-accused is incorrect, illegal or perverse. 8 Crl.R.P.No.1603 of 2018 11. The learned counsel for the petitioner by placing reliance on **Sankaran Moitra v. Sadhna Das and another [(2006) 4 SCC 584]** contended that the alleged act of the petitioner falls within the protective umbrella of Section 197 of the Code and therefore the prosecution launched without obtaining sanction is illegal. No doubt, if the case is one requiring sanction, the petitioner has every right to claim discharge for, the charge would be groundless if prosecution was launched without obtaining sanction. 12. The facts emerged from the materials on record are that while the 1st accused, the Assistant Sub Inspector and his colleagues were on duty, the motorcycle ridden by the deceased despite giving a signal, proceeded without stopping and therefore, the accused chased him in the police jeep. The allegation of the prosecution is that as encouraged by accused Nos.1 and 2, the petitioner, who drove the jeep intentionally, caused the jeep to hit at the back of the motorcycle. That resulted in the deceased and the pillion rider falling down and sustaining injuries. The injuries resulted in the death of Sri.Ejas. When the learned counsel for the petitioner contends that such 9 Crl.R.P.No.1603 of 2018 an act is undoubtedly part of his duty, the learned Public Prosecutor asserted that the intentional hit at the back of the motorcycle by the jeep can never be treated as in discharge of or purported discharge of the official duty as police personnel. 13. In **Sankaran Moitra** (supra) the victim died in a police action. It was on an election day. There occurred violent clashes between two groups and in the consequent action by the police, the husband of the complainant sustained fatal injury. The Apex Court in the majority judgment took the view that since the lathi charge took place near a polling booth on an election day and the lathi charge was necessitated in order to disperse the crowd when there were attempts for booth capturing the police action was held to be a part of their duty. Accordingly, it was held that sanction under Section 197(1) of the Code was required to prosecute the accused therein. 14. In the instant case, the petitioner and the co-accused did have every authority to chase the deceased if he disobeyed the direction to stop. But when the materials show that hitting the motorcycle by the jeep was a purposeful act, the same cannot be brought within the protective umbrella under Section 10 Crl.R.P.No.1603 of 2018 197 (1) of the Code. At this stage, it is not able to hold that the offending act was part of the duty. Therefore, the contention of the petitioner that he is entitled for a discharge is not able to be accepted. The impugned order is not suffering from any error, illegality or irregularity. 15. This revision petition is accordingly dismissed. However, it is made clear that the petitioner will have every right to raise the contention of the requirement of leave under Section 197(1) of the Code at the trial stage. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr