Krishnakumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945** **CRL.REV.PET NO. 469 OF 2018** **AGAINST THE ORDER DATED 24.10.2017 IN CMP NO.219/2016 IN CC 2062/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,** ## **ETTUMANOOR** ## **REVISION PETITIONER/PETITIONER:** **KRISHNAKUMAR AGED 30 YEARS AGED 30 YEARS, S/O.SANKARANUNNI, RAMATTU HOUSE, MULAVUKAD PO, MULAVUKAD VILLAGE, ERNAKULAM DISTRICT.** **BY ADV SRI.S.MANU** ## **RESPONDENT/RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 20.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.469 of 2018 ## **P.G. AJITHKUMAR, J.** **--------------------------------------------------Crl.R.P.No. 469 of 2018 ---------------------------------------------------Dated this the 20[th] day of November, 2023** ## **O R D E R** The petitioner is aggrieved by the order dated 24.10.2017 of the Judicial Magistrate of First Class-I, Ettumanoor dismissing his application for discharge. 2. The petitioner is the sole accused in C.C.No.2062 of 2014. The offences alleged are punishable under Sections 465, 468 and 471 of the Indian Penal Code, 1860 (IPC). The final report was filed by the investigating officer with the allegation that the three among the six mark lists submitted by the petitioner on 22.07.2013 before the M.G.University contained false entries regarding the marks awarded to the petitioner. It is alleged that as per his B.Com. decree certificate issued from the University on 30.09.2010, he obtained Third Class; whereas he claimed in his application dated 22.07.2013 that he obtained Second Class and in support of that claim, he had submitted the mark lists alleged to be forged. 3 Crl.R.P.No.469 of 2018 3. The petitioner filed C.M.P.No.219 of 2016 contending that the final report and the materials produced therewith did not make out any offence and that he was innocent. He further contended that the offence of forgery was not stated to have been committed within the territorial limits of the court below and for that reason also he was entitled for a discharge. 4. The court below, after considering the averments in the petition and the prosecution records, dismissed that application. The reason for dismissal contained in paragraph No.3 of that order reads,- “3. Heard both sides. On perusal of prosecution records, 161 statement of witnesses, documents etc, it is revealed that the case of the prosecution is that the accused has forged the mark list alleged to be issued by MG University. In a case of forgery, it is meaningless to contend that the prosecution will not be successful for the sole reason that the place of forgery was not within the jurisdiction of this court. In a case of forgery, the Court in whose local jurisdiction the forged document is produced has got jurisdiction to try such case. In order to overcome such unwanted defences, chapter XIII of CrPC is very meticulously drafted. Therefore, I find that the difficulty of the Investigating Officer in not clearly specifying the place 4 Crl.R.P.No.469 of 2018 of forgery of mark list by the accused is not a ground for discharging him. Therefore I am not inclined to allow this petition.” 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 6. The learned counsel by placing reliance on **Asim Shariff v. National Investigation Agency [(2019) 7 SCC 148]** contended that the court below did not apply its mind to the facts of the case before dismissing his application for discharge. After adverting to the principles laid down in the said decision, the learned counsel would submit that had there been a proper consideration, the petitioner would have been discharged. It is pointed out that the petitioner has submitted the original mark lists before the University along with a request dated 22.07.2013 and no prudent man would submit mark lists in the University, if they are forged. That apart, the prosecution did not produce any document in order to prove the actual marks obtained by the petitioner. It is stated that the original tabulation sheet or the statements of officials, who prepared the original tabulation register, were not produced 5 Crl.R.P.No.469 of 2018 along with the final report. In the view of the learned counsel for the petitioner, even if the entire prosecution records are taken on its face value, a probable case requiring to frame a charge against the petitioner for the offences alleged against him has been made out. Accordingly, the learned counsel canvassed for setting aside the impugned order and to allow the petition for discharge. 7. The learned Public Prosecutor, on the other hand, would submit that the tabulation register containing the marks originally awarded to the petitioner and the mark lists produced by the petitioner along with his application dated 22.07.2013 are enough to establish the factum of forgery and using of the forged documents. When the marks entered in the questioned mark lists are different from the marks entered in the tabulation register, no much evidence is required to prove the guilt of the accused. On such grounds, the learned Public Prosecutor takes a stand that the materials on records are sufficient to proceed against the petitioner. 6 Crl.R.P.No.469 of 2018 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. 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 of the evidence 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 7 Crl.R.P.No.469 of 2018 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. 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 the existence of the ingredients necessary of the offences alleged. 8 Crl.R.P.No.469 of 2018 10. The law concerning the nature of consideration while a petition for discharge is considered is settled. From the principles laid down in the aforesaid decisions, the court is required to apply the judicial mind to the materials produced by the prosecution and sift and weigh the materials for the limit purpose of deciding whether a grave suspicion is made out against the accused. The impugned order does not reflect any such explanation. The sole reason stated is that only on the ground of dispute raised by the petitioner regarding the territorial jurisdiction, he is not entitled to get a discharge; whereas the petitioner raised more serious contentions that the charges levelled in the final report against him was baseless and that he did not commit any offence. That created an obligation on the court below to consider the materials produced by the prosecution in order to decide whether such materials _prima facie_ would be sufficient to constitute the offence alleged against him warranting framing of a charge. In the absence of such consideration, it can only be said that the impugned order is erroneous. It is therefore liable to be set aside. Since the court below did not consider the plea for discharge in its proper perspective, the matter is required to be remitted to that 9 Crl.R.P.No.469 of 2018 court for fresh consideration, in the light of the principles of law referred to herein before. Accordingly, the revision is allowed. The order dated 24.10.2017 is set aside. The Judicial Magistrate of First Class-I, Ettumanoor is directed to consider C.M.P.No.2062 of 2014 afresh after affording an opportunity of being heard to both sides. **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr