CRL.R.P.No.545 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 10[TH] DAY OF JULY 2024 / 19TH ASHADHA, 1946 CRL.REV.PET NO. 545 OF 2022** **SC NO.462 OF 2019 ON THE FILE OF SESSIONS COURT,PATHANAMTHITTA** ## **REVISION PETITIONER/ACCUSED NOS.1 TO 6:** - **1 GOPIKRISHNA AGED 48 YEARS** **S/O.RADHAKRISHNAN NAIR, OCHUVELIL POIKAYIL HOUSE, VALLAMKULAM PADINJAREMURI, VALLAMKULAM WEST P.O, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689541** - **2 SUDHEESH KUMAR @ RAJEEV AGED 43 YEARS** - **S/O.PRASADHANA PILLAI, PULIMPALLIL HOUSE, VAIKATHILLAM, NEDUMPURAM VILLAGE, NEDUMPURAM P.O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689578** - **3 VISHNU VIJAYAN AGED 30 YEARS** - **S/O.VIJAYAN, KUNNAPPADU HOUSE, KAVUMKALPADI, VALLAMKULAM PADINJAREMURI, VALLAMKULAM WEST P.O, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689541** - **4 RADHAKRISHNAN NAIR AGED 83 YEARS** - **S/O.KRISHNAPILLAI, OCHUVELIL POIKAYIL HOUSE, VALLAMKULAM PADINJAREMURI, VALLAMKULAM WEST P.O, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689541** - **5 SREERAJ @ ANIKUTTAN AGED 28 YEARS** **2** Crl.R.P.No.545 of 2022 **S/O.RADHAKRISHNAN, THAZHATHETHIL HOUSE, VALLAMKULAM PADINJAREMURI, NANNOOR, VALLAMKULAM WEST P.O, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689541** - **6 SHYAM MOHAN @ PRABATH** - **AGED 29 YEARS S/O.MOHANANPILLAI, VALIYAPARAMBIL HOUSE, KAVUMKALPADI, VALLAMKULAM PADINJAREMURI, VALLAMKULAM WEST P.O, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689541** **BY ADVS. JOSEPH GEORGE P.A.REJIMON** ## **- RESPONDENTS/STATE, DE FACTO COMPLAINANT & INJURED:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** - **2 SANTHAMMA P.A** - **AGED 56 YEARS** - **W/O.RAJU T, PATHIPARAMBIL HOUSE, VALLAMKULAM PADINJAREMURI, NANNOOR, VALLAMKULAM WEST P.O, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN - 689541** - **3 ANJITHA AGED 21 YEARS** - **D/O.RAJU T, PATHIPARAMBIL HOUSE, VALLAMKULAM PADINJAREMURI, NANNOOR, VALLAMKULAM WEST P.O, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PIN - 689541** - **4 VASU AGED 71 YEARS** - **S/O.AZHAKAN, KUZHIKALA THADATHIL HOUSE,** **3** Crl.R.P.No.545 of 2022 **VALLAMKULAM PADINJAREMURI, VALLAMKULAM WEST P.O, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK, PATHAMANTHITTA DISTRICT, PIN - 695541** **BY ADVS. MANU RAMACHANDRAN M.KIRANLAL(K/963/2009) R.RAJESH (VARKALA)(K/78/2000) T.S.SARATH(K/257/2012) SAMEER M NAIR(K/000481/2017) HARSHA SUSAN SAM(K/000880/2019) GEETHU KRISHNAN(K/001199/2021)** **SMT.SEENA.C – PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARED ON 10.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **4** Crl.R.P.No.545 of 2022 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------Crl.R.P.No.545 of 2022 -----------------------------------------------------Dated this the 10[th] day of July, 2024** ## **O R D E R** The petitioners are aggrieved of the order of the Sessions Court, Pathanamthitta in Crl. M.P No.1158 of 2022 which is dated 14.07.2022. The petitioners who are the accused filed the said petition seeking discharge under Section 227 of the Code of Criminal Procedure, 1973. That petition was dismissed. 2. Heard the learned counsel for the petitioners, the learned Public Prosecutor and the learned counsel for respondent Nos.2 to 4. 3. Sessions Case No.462 of 2019 arose on a police report. The petitioners filed Crl.M.C No.4099 of 2020 before this Court seeking to quash the final report and the proceedings in Sessions Case No.462 of 2019. This Court did not accept the plea for quashment, but gave liberty to the petitioners to move the Court of Sessions for a discharge. Thus the petitioners filed Crl MC No.1158 of 2022. **5** Crl.R.P.No.545 of 2022 4. The learned Sessions Judge did not assign any reason for deciding to frame a charge and reject the plea for a discharge. Why the court did not assign any reason is reflected in paragraph No.5 of the impugned order which is extracted below: “5. If an order is taken out from its context, that will lead to disastrous situations. There are certain orders which could not be speaking orders and the entire reasons have to be found out from the context at which the order was passed. Say for example the court taking cognizance of an offence. Taking cognizance is a serious mental process involving the study of entire facts brought before the court but still even without passing an express order, it is taking cognizance even without using the word cognizance. Cognizance is evidenced by the conduct of the court in issuing process to compel the attendance of the accused. A complaint or a final report is the basis for taking cognizance. It is not proper to file a petition asking the court to take cognizance/ not to take cognizance of a certain complaint. Likewise it is not reasonable to ask the court to acquit/convict a person by filing a petition. Likewise it is also not reasonable to ask the court to discharge a person which **6** Crl.R.P.No.545 of 2022 is the consequence of the procedure being followed in the court. Accused will get opportunity to argue for a discharge at the time of preliminary hearing (hearing for framing charge/discharge).” 5. Except stating further that “after going through the entire records, if the court finds there are materials to frame a charge, the court shall frame a charge, otherwise the result is discharge”, the learned Sessions Judge did not state any reason to reject the plea for discharge. The order does not reflect that the learned Judge ventured to consider the materials in order to decide whether there is sufficient ground for proceeding against the accused. Section 227 of the Code insists on the Judge to record his reasons if he decides to discharge the accused. That does not mean that the Judge is not obligated if he decides not to discharge. Once an accused claims discharge for which he points out reason/s, the Judge deciding to reject that plea shall assign reasons for doing so. It is especially so since such an order is prone to challenge in revision. 6. What worried the learned Sessions Judge was that a venture to analyse whole evidence in black and white, while **7** Crl.R.P.No.545 of 2022 deciding a plea of discharge, would be a pre-judgment judgment. The said view is incorrect. When Section 227 of the Code instructs the court to consider the record of the case and the documents submitted therewith and also hear the accused as well as the prosecution before finding whether or not there is sufficient ground to proceed against the accused, the court is obliged to have a an assimilative exercise to take a decision on the plea for discharge. 7. 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 the material at the time of **8** Crl.R.P.No.545 of 2022 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. 8. 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 the existence of the ingredients necessary of the offences alleged. **9** Crl.R.P.No.545 of 2022 9. The learned Trial Judge ought to have considered the plea for discharge in the light of the principles of law laid down by the Apex Court in the aforementioned decisions. But, there is no such consideration at all while dismissing Crl.M.P.No.1158 of 2022 and deciding to frame a charge against the petitioners. The said order therefore becomes one unsustainable in law. The order is liable to be set aside. The matter has to go back for a fresh consideration by the learned Sessions Judge. Accordingly, this petition is allowed and on setting aside the order dated 14.07.2022, the Sessions Court, Pathanamthitta is directed to consider the plea of the petitioner for a discharge in the light of the procedure prescribed in Section 227 of the Code and the law laid down in the aforesaid decisions. Till a decision is taken in that regard, personal appearance of the petitioners shall not be insisted. Sd/- **P.G. AJITHKUMAR, JUDGE** PV **10** Crl.R.P.No.545 of 2022 ## **APPENDIX OF CRL.REV.PET 545/2022** |**PETITIONER**|**ANNEXURES**|**ANNEXURES**| |---|---|---| |**Annexure1**||**PHOTOCOPY OF FIR IN CRIME NO: 585/2015**| |||**OF THIRUVALLA POLICE STATION**| |**Annexure-A**|**2**|**PHOTOCOPY OF ORDER DATED 17-03-2022 IN**| |||**CRL.M.C 4099/2020 OF THIS HON'BLE**| |||**COURT**| |**Annexure-A**|**3**|**PHOTOCOPY OF THE PETITION IN CRL.M.P**| |||**1158/2022 IN S.C 462/2019 OF THE**| |||**SESSIONS COURT PATHANAMTHITTA**|