M.N. Balakrishnan @ Baluu S/O Narayana Menon v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 CRL.REV.PET NO. 892 OF 2018** **AGAINST THE ORDER DATED 09.05.2018 IN CMP NO.1000 OF 2017 IN CC NO.59 OF 2017 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, TRIPUNITHURA** **CRIME NO.1493/2015 OF HILL PALACE POLICE STATION,** ## **ERNAKULAM** ## **REVISION PETITIONER/ACCUSED NO.7:** **M.N. BALAKRISHNAN @ BALU S/O. NARAYANA MENON, PARAMBATH HOUSE, JAYANTHI ROAD, MARADU, ERNAKULAM DISTRICT.** **BY ADVS. SRI.SALIM V.S. SRI.H.NUJUMUDEEN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA THROUGH SUB INSPECTOR OF POLICE HILL PALACE POLICE STATION, ERNAKULAM DISTRICT, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.** **SMT.MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.892 of 2018 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.R.P.No.892 of 2018 ----------------------------------------------------------Dated this the 4[th] day of December, 2023** ## **O R D E R** This revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code) is filed by accused No.7 in C.C.No.59 of 2017 on the files of the Judicial Magistrate of the First Class, Thrippunithura. He along with eight others stand charged for the offences punishable under Sections 120B, 420, 465, 468, 471, 383, 388, 389, 171 and 171 read with Section 34 of the Indian Penal Code, 1860 (IPC) and Section 27 of the Arms Act, 1959. The petitioner on entering appearance filed C.M.P.No.1000 of 2017 seeking discharge. As per the order dated 09.05.2018 the learned Magistrate dismissed that petition. The said order is under challenge in this revision petition. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3 Crl.R.P.No.892 of 2018 3. Allegations against the petitioner and his coaccused in the final report are the following:- “With the motive of cheating CW1 Ajay Gosh, accused Nos.1 to 7 committed conspiracy at the house of the 1 st accused at Nadama and enticed Ajay Gosh to go to Bangalore. As a part of their plot, they devised to trap Ajay Gosh in a fake narcotics case. The 3rd accused took Ajay Gosh to Bangalore on the pretext of a BMW car Launch ceremony. Accused Nos.3 and 4 and Ajay Gosh boarded flight from Nedumbashery International Airport on 06.10.2015 and went to flat No.301 at Commandos Manitos Apartment, Yellahanka, Bangalore, that was availed on rent by the 1st accused. On 06.10.2015 at 9.00 am accused Nos.2 and 5 impersonated public servants from Narcotic Bureau carrying the forged ID cards. The 1st accused in the uniform of DIG of Police and accused Nos.8 and 9 impersonating as police officers acted as arresting accused Nos.3 and 4 and Ajay Gosh, for them possessing narcotics drugs for peddling. They made Ajay Gosh believed that the packets with white powder seized from the flat were narcotic drugs worth Rs.3.5 crores. Ajay Gosh was threatened that he would be implicated in offences punishable with imprisonment for life. Accused Nos.1 and 2 extorted Rs.50,000/- from Ajay Gosh then and there and they had directed Ajay Gosh to give Rs.2 crores to which he agreed. On 07.10.2015 at 3.10 pm at Thiruvamkulam Junction, the 4 Crl.R.P.No.892 of 2018 2nd accused was given Rs.10,000/- making him believed that it was Rs.5 lakhs. The 1st accused was keeping dangerous weapons for committing similar offences.” 4. The learned counsel for the petitioner would submit that other than in an additional statement given by the defacto complainant, nothing has been mentioned about the involvement or role of the petitioner in any part of the offence, namely, the conspiracy, execution of the plot of extortion of money or in the matter of search and seizure. It is submitted that in the additional statement of the defacto complainant, what is stated is that the petitioner introduced accused Nos.8 and 9 to the 1st accused. Even accepting the said statement as true, the complicity of the petitioner to the offence cannot be established. Accordingly, the learned counsel seeks to set aside the impugned order and allow the plea for discharge. 5. The learned Public Prosecutor would submit that there are indications about the involvement of the petitioner in the statement given by witness Nos.14 and 15, who are husband and wife. The flat belonging to them in Bangalore 5 Crl.R.P.No.892 of 2018 was availed on rent by accused Nos.1 and 3 for the purpose of executing their plot of extracting money by false implication of the de facto complainant in a crime. Accordingly, it is submitted that the role of the petitioner in the conspiracy part of the offences can be established with the aid of evidence of the defacto complainant and witness Nos.14 and 15. 6. Going by the provisions of Section 10 of the Evidence Act, 1872, if there is a reasonable ground to believe that two or more persons have conspired together to commit an offence; anything said, done or written by anyone of such persons in reference to their common intention, after the time when such intention was first entertained by anyone of them, is a relevant fact. Therefore, if the prosecution is able to prove that the petitioner has contacted others, and was found in the company of any of the other accused, participated in any of the offending acts, the prosecution can certainly canvas for framing a charge against the petitioner. 7. The incident of fake search and seizure had occurred on 06.10.2015. The flat where the incident occurred 6 Crl.R.P.No.892 of 2018 was taken on rent on 05.10.2015. The submission of the learned Public Prosecutor is that witness Nos.14 and 15 stated that at the time of receiving the advance amount and handing over the key, “they” were present. The said statement indicates presence of the 7th accused, who is the brother of the 1st accused and therefore his presence along with the coaccused can be found. But from the statement of witness Nos.14 and 15, which are identical, it cannot be assumed at all that the word “they” refers to the 1st accused and his brother; because, nowhere in their statement, presence of the petitioner has been mentioned. From their statements there cannot have even an inference that the petitioner was also present at the time when the key of the flat was received by accused Nos.1 and 3. The rest of the evidence is additional statement of the defacto complainant. His statement is “ബ�ലവ�ണ� ദ�ല�പ�ന�യ� സഞവ�ന�യ� ��ര�യണദ�സ�ന� അടത�ക� പറഞവ�ടന�ന� മ�സ�ല�യ�". The petitioner is Balu. Dileep and Sanju are accused Nos.8 and 9. Narayana Das is the 1st accused. Even the version that it was the petitioner, who sent 7 Crl.R.P.No.892 of 2018 accused Nos.8 and 9 to the 1st accused, is an information he received and not his direct knowledge. Therefore, the said evidence proposed by the prosecution is also not an admissible item of evidence. With the help of aforesaid evidence, the prosecution will not be able to prove any role of the 7th accused in the alleged conspiracy or the subsequent acts committed in consequence of the conspiracy. 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 8 Crl.R.P.No.892 of 2018 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 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 9 Crl.R.P.No.892 of 2018 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. 10. Viewed in the light of the law laid down in the aforesaid decisions, the materials produced by the prosecution and which are adverted to above are insufficient to make out a grave suspicion that the petitioner was also a privy to the alleged offences. The view taken by the court below is therefore incorrect and the impugned order is liable to be set aside. Hence, the revision is allowed and on setting aside the impugned order dated 09.05.2018, C.M.P.No.1000 of 2017 is 10 Crl.R.P.No.892 of 2018 allowed. The petitioner, who is the 7th accused in C.C.No.59 of 2017, is discharged. Sd/- **P.G. AJITHKUMAR, JUDGE** dkr