Pradeep Kumar V.P v. Deputy Superintendent of Police, National Investigation Agency, Kochi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 CRL.MC NO. 3926 OF 2022 AGAINST THE ORDER/JUDGMENTSC 2/2013 OF SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM** **PETITIONER:** **PRADEEP KUMAR V.P AGED 53 YEARS S/O GOVINDAN, AGED 53 YEARS, VADAKKEPURAYIL HOUSE, ANI COTTAGE, PILATHARA P.O, KANNUR DISTRICT PIN: 670 501 PIN - 670501 BY ADV O.V.MANIPRASAD** **RESPONDENT:** **DEPUTY SUPERINTENDENT OF POLICE NATIONAL INVESTIGATION AGENCY, KOCHI, REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR FOR NIA, HIGH COURT OF KERALA, ERNAKULAM. PIN : 682 011. PIN - 682011** **OTHER PRESENT:** **SRI.S. MANU, ASG** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.M.C No.3926/2022** 2 **K. VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ---------------------------------------------Crl.M.C No.3926 of 2022 ---------------------------------------------Dated this the 10[th] August, 2022** **O R D E R** **Vinod Chandran, J.** **The petitioner herein is the first accused in SC 2/2013/NIA. The challenge is against the charge framed on 23.09.2011 against the accused which is produced as Annexure A7. The challenge against framing of charge is on the ground that the case is fabricated. It is also contented that there is no enquiry as contemplated under Section 227 & 228 of the Cr.P.C conducted and there is no ground to presume that the accused had committed the offence.** **2. The learned Counsel appearing for the petitioner Sri.O.V Maniprasad takes us through Annexure A3, the charge sheet, to point out that on 13.09.2011 the petitioner was taken into custody, then taken to Mumbai so as to identify A2 and brought back to Kerala on 16.9.2011. Even according to the final report the petitioner was** **Crl.M.C No.3926/2022** 3 **let free, but later was arrested, allegedly when a car was intercepted in which A1 to A3 were travelling and from which fake Indian currency (FICN) totalling Rs.8,91,000/- was recovered. It is the specific allegation that after being taken into custody on 13.09.2011 the petitioner was never released and after returning from Mumbai he was kept in confinement in a lodge. The car owned by the petitioner was taken possession of by the Police for the purpose of foisting the above case. Annexure A10 order, in an appeal filed against the rejection of bail, is also pointed out wherein it is categorically stated that NIA is unable to take a definite stand on the criticism levelled regarding the arrest on 18.11.2011. The learned ASG, Sri.S.Manu, however points out that an application for discharge was rejected, under the offences charged under the IPC, as per Annexure A6 against which there is no challenge. The natural consequence of rejecting an application under S.227 of Cr.PC is the framing of the charge which** **Crl.M.C No.3926/2022** 4 **need not be preceded by an enquiry and requires only a** _**prima facie**_ **consideration. The discharge as per Annexure A6 was confined to the provisions of Unlawful Activities (Prevension) Act, 1966 [for brevity 'UA(P)A'].** **3. We have to immediately notice that the petitioner does not challenge Annexure A6 order. By Annexure A6 the Special Court for Trial of NIA Cases, Kerala, Ernakulam considered the prayer for discharge and relied on** _**Abdul Salam v. NIA 2018(3) KLT 93(FB)**_ **to find that the provisions under the UA(P)A cannot be levelled since the offence involving counterfeit notes was committed before the Amendment Act, 2012. However the offences under IPC were found to be properly charged and the charges framed, which as submitted by the learned ASG, was the necessary consequence.** **4. In** _**State of Bihar v. Ramesh Singh 1977 (4) SCC 39**_ **, the considerations to be applied in ordering a discharge under Section 227 or proceeding with trial under Section 228 was laid** **Crl.M.C No.3926/2022** 5 ## **down:** **4...** The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage 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. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. ................................ ... If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227. **5. It was held in** _**Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722**_ **that while exercising power under Section 228 Cr.P.C, the Judge is not required to record his reasons for framing the charges against the accused.** _**Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460**_ **found that:** _**'There is a fine distinction between the**_ **Crl.M.C No.3926/2022** 6 _**language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court, while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.'(sic) Dinesh Tiwari v. State of U.P. (2014) 13 SCC 137**_ **held that for framing charge under Section 228 Cr.P.C, the Judge is not required to record detailed reasons as to why such charge is framed.** _**Bhawna Bai v. Ghanshyam (2020) 2 SCC 217**_ **followed the above precedents to set aside an order of the High Court interfering with the framing of charges carried out by the trial Court.** **6. We notice now, the final report, which specifically speaks of A1 having passed on FICN to fish vendors at Thaliparambu which was detected and the accused detained by the fish vendors. A1 is also said to have been coerced into withdrawing** **Crl.M.C No.3926/2022** 7 **an amount of Rs.5000/- from an ATM which he handed over to the fish vendors in lieu of the FICN. It was on information received, that A1 was apprehended by the Police and having disclosed the source in Mumbai, he was also taken to Mumbai by the Police party. The alleged source was questioned and no incriminating evidence having been received, the police party returned and dispersed. There was a surveillance maintained on A1 and A2 which led to the subsequent interception of a car owned by A1 from which a huge cache of foreign currency was recovered. A1 to A3 were also present in the car who were arrested. True at the time of bail, as seen from Annexure A10, the NIA was unable to answer the questions regarding the arrest, obviously since the allegations were not against the NIA, but the local police. The NIA had taken over the investigation only later.** **7. The petitioner had filed an application for discharge which was partly allowed and on the basis of the part rejection, the charges were** **Crl.M.C No.3926/2022** 8 **framed. We reiterate that no challenge is made to the order which partly allowed the claim of the petitioner for discharge, as against the provision under the UA(P)A but rejected it in so far as the provisions of the I.P.C is concerned. There is no scope to challenge the charges framed in that context and we find no valid grounds to entertain the challenge, the only challenge being a story set up by the petitioner without any substantiation, which according to the prosecuting agency is a distortion of the actual facts. The Crl.MC stands dismissed.** **Sd/-** **K. VINOD CHANDRAN, Judge** **Sd/C.JAYACHANDRAN, Judge** **jma**