K. M. Nagaraj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941** **Crl.MC.No.1189 OF 2020(G)** **AGAINST THE ORDER IN CRL.M.P.NO.2388/2018 IN S.C No.183/2014 DATED 06-11-2019 OF ADDITIONAL SESSIONS COURT-VII, ERNAKULAM** ## **PETITIONER/ACCUSED No.7:** **K.M.NAGARAJ AGED 51 YEARS S/O. K.M. KOTTORAYAPPA, NO.134, EMBASSY HERITAGE APARTMNET, 8TH MAIN, MALLESWARA, BANGALORE, KARANATAKA - 560 003** **BY ADV. SRI.V.JOHN SEBASTIAN RALPH** **SRI.JOHN THOMAS.V** **SRI.VISHNU CHANDRAN SRI.KEERTHANA SUDEV SRI.RLAPH.R.JOHN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN 682 031** ## **SMT K K SHEEBA- FOR ADGP.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 Crl.M.C No.1189 of 2020 “ **CR** ” ## **O R D E R** The petitioner is the 7[th] accused in the case S.C No. 183/2014 on the file of the Court of the Additional Sessions Judge-VII, Ernakulam. 2. The offences alleged against the accused in the case are under Sections 8(1) read with 8(2) and 55(a) of the Abkari Act, 1077. 3. The prosecution case is that, on 10.11.2006, at about 20.00 hours, the Excise Inspector of Tripunithura Excise Range and party intercepted the lorry KL-13-M-5485 at the road in front of the High School at Irimpanam and then it was found that 10590 litres of spirit was being transported in that vehicle. 4. The petitioner filed an application (Annexure-3) under Section 227 of the Code of Criminal Proceedure, 1973 (hereinafter referred to as 'the Code') for discharging him from 3 Crl.M.C No.1189 of 2020 the case. As per Annexure-1 order, learned Additional Sessions Judge dismissed the aforesaid application. 5. This petition is filed under Section 482 Cr.P.C challenging Annexure-1 order passed by the learned Additional Sessions Judge. 6. Heard learned counsel for the petitioner and also the learned Public Prosecutor. 7. Section 227 of the Code provides that, 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. 8. The words “not sufficient ground for proceeding against the accused” in Section 227 of the Code clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution. The Judge has to exercise his judicial mind to the fact of the case in order to determine whether a case for trial has been made out by the prosecution. 4 Crl.M.C No.1189 of 2020 In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities. But, the Judge has to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which _ex facie_ disclose that there are suspicious circumstances against the accused so as to frame a charge against him (See **Union of India v. Prafulla Kumar Samal : AIR 1979 SC 366** ). 9. At the time of framing the charge, the probative value of the material on record cannot be gone into. But, before framing a charge, the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. The court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence (See **Sajjan Kumar v.** 5 Crl.M.C No.1189 of 2020 ## **Central Bureau of Investigation: (2010) 9 SCC 368** ). 10. It is settled that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a _prima facie_ case against the accused has been made out. Where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge. By and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 of the Code, it is expected from the trial Judge to exercise judicial mind to determine as to whether a case for trial has been made out or not. But, the court is not supposed to hold a mini trial by marshalling the evidence on record (See **Asim Shariff v. National Investigation Agency: AIR 2019 SC 3083** ). 6 Crl.M.C No.1189 of 2020 11. The relevant portion of Annexure-1 order passed by the learned Additional Sessions Judge reads as follows: “(5) Heard both sides. (6) I am unable to subscribe the view for the reason this is not a fit case to discharge the accused at this stage. Learned AGP argued that Petitioner is involved in the case as spoken to by 5th accused who arranged vehicle for the smuggling of illegal spirit from Karnataka to Kerala. (7) In the light of the rival contentions petitioner has to face trial and discharging him at this stage would not be a safer course. Thus petition fails and it is dismissed.” 12. Learned Additional Sessions Judge has not considered the materials produced by the prosecution to decide whether a case for trial against the petitioner has been made out by the prosecution. There was no application of mind by the learned Additional Sessions Judge. The entire approach to the matter by the trial court was very casual and it is reflected from the impugned order which states that “ in the light of the rival contentions petitioner has to face trial and discharging him at this stage would not be a safer course.” The impugned order shows that the learned Additional 7 Crl.M.C No.1189 of 2020 Sessions Judge did not apply his judicial mind to the materials produced by the prosecution. There was no evaluation or sifting of the materials produced by the prosecution to find out whether a _prima facie_ case against the petitioner was made out or not. 13. In the aforesaid circumstances, the impugned order passed by the learned Additional Sessions Judge cannot be sustained in law. The application filed by the petitioner for discharge is liable to be remitted to the trial court for fresh consideration and disposal. 14. Consequently, the petition is allowed. Annexure-1 order is set aside. The application for discharge filed by the petitioner (Annexure-3) is remitted to the trial court for consideration and disposal afresh in accordance with law. ## **R. NARAYANA PISHARADI** ## **JUDGE** **rpk** 8 Crl.M.C No.1189 of 2020 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE 1 CERTIFIED COPY OF THE ORDER CMP NO:2388/2018 ON THE FILE OF ADDITIONAL SESSIONS COURT VII, ERNAKULAM DATED 06.11.20198** **ANNEXURE 2 TRUE COPY OF THE FINAL REPORT DATED 19.10.09 ANNEXURE 3 TRUE COPY OF THE DISCHARGE PETITION FILED BY THE PETITIONER 11.09.2018** **ANNEXURE 4 TRUE COPY OF THE ORDER IN CRL.M.P. NO.122/2007 IN CRIME NO.28/2006 OF EXCISE RANGE THRIPOONITHURA DATED 04.01.2007** RESPONDENTS' EXHIBITS : NIL TRUE COPY PA TO JUDGE