Veliyam K.S. Rajeev v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945 CRL.REV.PET NO. 440 OF 2021 ``` ``` [AGAINST THE ORDER DATED 28.04.2021 IN C.M.P. NO.1931 OF 2020 IN C.C.NO.12/2013 PENDING ON THE FILES OF THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-II, KOLLAM] ``` ``` REVISION PETITIONER/PETITIONER/ACCUSED NO.9 ``` ``` VELIYAM K.S.RAJEEV AGED 62 YEARS S/O. SUKUMARAN (LATE), CHAKKALAKONATH HOUSE, 115, VIKAS NAGAR, PATTATHANAM CHERI, VADAKKEVILA VILLAGE, KOLLAM,PIN-691021 BY ADVS. P.VIJAYA BHANU (SR.) AJEESH K.SASI P.M.RAFIQ POOJA PANKAJ SRUTHY N. BHAT M.REVIKRISHNAN ``` ## `RESPONDENT/COUNTER PETITIONER/COMPLAINANT:` ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT P.O., ERNAKULAM-682 031 ``` ``` BY SHRI.GRASHIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF PROSECUTION ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19.12.2023, THE COURT ON 21.12.2023 PASSED THE FOLLOWING: ``` CRL.RP No.440 of 2021 2 ## **ORDER** ``` The Revision Petitioner herein is the 9[th] accused in C.C.No.12/2013 pending before the Judicial First Class Magistrate Court-II, Kollam. The said case arises from Crime No.1597/2010 of Eravipuram Police Station, which was registered for the offences punishable under sections 417, 419, 420, 448, 468, 471, 379, 120B, 201, 212 r/w. Section 34 of the Indian Penal Code (IPC) and Sections 66 r/w.43(a) and (g) of the Information Technology Act, 2000. Altogether, 16 persons were implicated as accused in the said case. ``` ``` 2.The prosecution case is as follows: the ``` ``` Kerala Public Service Commission conducted an examination for filling up the post of Sub Inspector trainee (General Executive Branch) on 12.10.2010. Accused persons hatched a criminal conspiracy to commit malpractices in the said ``` CRL.RP No.440 of 2021 3 ``` examination. As part of the same, accused Nos.4 to ``` ``` 6 and 11 obtained hall tickets for appearing in the said examination fraudulently and on ``` ``` the strength of the same, they got entry into theGovernmentHigherSecondarySchool, ``` ``` Sankaramangalam, which was one of the examination centres, as candidates. It is alleged that some ``` ``` hall tickets were obtained by the 1st accused by giving a false address, and one hall ticket was obtained by stealing the same from one of the witnesses from his letter box. Thereafter ``` ``` manipulations were made in the said tickets and ``` ``` through impersonation the candidates entered into the examination hall. After the commencement of the examination, the 8th accused, who was ``` ``` attending the examination in Centre No.129 in hall ``` ``` number 7, threw away the question paper, which ``` ``` contained Alpha code ‘A’, through the window of the hall. The 3[rd] accused, who was waiting outside, ``` CRL.RP No.440 of 2021 4 ``` collected the same and, by travelling on the motorcycle ridden by the 2nd accused, handed over the said question paper to the 1st accused, who was waiting in a car bearing registration No. KL/02-AE-7424. Thereafter, the petitioner, who is a lawyer practising at Kollam with 35 years of experience at the bar, conveyed the answers of the question paper relating to the legal subjects to the 1[st] accused who in turn conveyed the same to the 7[th] accused who was attending examination through a mobile phone concealed on the body of the 7[th] accused connected with an ear-phone, thereby committed the malpractices in the examination. Thus, the primary allegation against the petitioner is that he conspired with the 1[st] ``` ``` accused and other persons to commit malpractices in the examination conducted by the Public Service Commission. It was also alleged that, on the previous day of the examination, as part of the ``` CRL.RP No.440 of 2021 5 ``` conspiracy, the 1st accused and the petitioner herein had a telephone conversation. Besides the same, it is also alleged that, after the crime was registered, when the police were taking steps to find out the whereabouts of the 1[st] accused, the petitioner interfered with the investigation by clandestinely arranging an interview of the 1[st] ``` ``` accused in a building in possession of the petitioner, conducted by CW16 who was a reporter of Kairali T.V, a malayalam news channel. ``` ``` Initially, the petitioner was not implicated as an ``` ``` accused, but later, during the course of the ``` ``` investigation, he was made as the 9[th] accused. The mobile phone with the sim card of the petitioner was seized. After completing the investigation, the police submitted the final report, and ``` ``` thereupon, cognizance was taken by the Judicial ``` ``` First Class Magistrate Court-II, Kollam, as C.C.12/2013. ``` CRL.RP No.440 of 2021 6 ``` 3.Initially, the petitioner approached this Court by filing Crl.M.C.No.5951/2016 to quash the final report and all further proceedings pursuant to the same which resulted in Annexure-A order. As per the said order, Crl.M.C was disposed of granting liberty to the petitioner to approach the trial Court for discharge. Consequently, an application viz.C.M.Appl.No.1931/2020 was submitted by the petitioner seeking discharge. However, the said application was dismissed as per order dated 28.04.2021, which is impugned in this Revision Petition. ``` ``` 4.Heard Sri.P.Vijayabhanu, the learned ``` ``` Senior Counsel for the petitioner and Sri. Grashious Kuriakose, the learned Senior Counsel and Additional Director General of Prosecution for ``` ``` the respondent-State. ``` ``` 5.The specific contention raised by the learned Senior Counsel appearing for the ``` CRL.RP No.440 of 2021 7 ``` petitioner is that the materials available on record and the allegations contained in the final report are not sufficient to make out any of the offences against the petitioner herein. According to the learned Senior Counsel, the petitioner is a senior member of the Bar and apart from the fact ``` ``` that he has given a legal opinion to the questions asked by the 1st accused, there is no involvement of the petitioner in the acts alleged. As regards the allegation of harbouring the offenders, it is pointed out that the allegations are not sufficient to implicate him as an accused, particularly because he was a lawyer by profession who had to provide legal aid to the persons accused of the offences. Therefore, under no ``` ``` circumstances, he should have been implicated as an accused. ``` ``` 6.On the other hand, the learned A.D.G.P stoutly opposes the contentions raised by the ``` CRL.RP No.440 of 2021 8 ``` learned Senior Counsel for the petitioner. It was pointed out that, there is scientific evidence for implicating the role of the petitioner in the form ``` ``` of call data records and based on the analysis of ``` ``` the sim card and mobile phone recovered from the ``` ``` possession of the petitioner. Moreover, the ``` ``` learned A.D.G.P. also contends that a detailed ``` ``` evaluation of the materials is not necessary at this stage. The materials produced by the prosecution evoke a grave suspicion as to the ``` ``` involvement of the accused, and hence, the trial court was bound to frame the charge. Therefore, the learned A.D.G.P. seeks for dismissal of the Crl.R.P. ``` ``` 7. I have carefully gone through the rival ``` ``` contentions raised from both sides. The question that arises is regarding the matters to be considered at the time of framing the charge. The position of law in this regard is clearly settled ``` CRL.RP No.440 of 2021 9 ``` by the Hon’ble Supreme Court in various decisions. InUnion of India v. Prafulla Kumar Samal and Another [(1979)3 SCC 4],after elaborately ``` ``` discussing the principles relating to the matters to be taken into consideration at the time of discharge, the following observations were made in paragraph 10. ``` ``` “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: ``` ``` (1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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. ``` ``` (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. ``` ``` (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. ``` ``` (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic ``` CRL.RP No.440 of 2021 10 ``` infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” ``` ``` In Kuriachan Chacko and Others v. State of Kerala ``` ``` [2007(3) KLT 843], after discussing the various judicial precedents in this regard, it was observed by this Court that a discharge under ``` ``` Sec.239 of the Cr.P.C. is possible only when the court entertains the satisfaction that the ``` ``` allegations/charge against the accused is groundless. No detailed evaluation of the ``` ``` materials or meticulous consideration of the ``` ``` possible defences needs to be undertaken at this stage. The exercise of weighing materials in golden scales is certainly not to be undertaken at this stage and has to be postponed to a later date. Is the allegation/charge groundless? That alone needs to be considered at the stage of Sec.239/240 of the Cr.P.C. ``` CRL.RP No.440 of 2021 11 ``` 8.Thus, it is evident from the aforesaid ``` ``` observations that, even though the court has the power to weigh the evidence, the same is only for ``` ``` the limited purpose of finding out whether a prima facie case is made out. An inquiry by ``` ``` meticulously examining the legal sustainability of the materials placed on record and finding out answers to the possible defences of the accused is not necessary. Therefore, the contentions raised by the petitioner in this case have to be ``` ``` considered in that perspective. ``` ``` 9.Thus, when coming to the facts of this ``` ``` case, it is to be noted that the allegations raised against the petitioner are twofold. The ``` ``` first allegation is that he provided answers to the questions in the question paper relating to the legal subjects to the 1st accused, who, in turn, passed on the said answers to the 7[th] ``` ``` accused. There is also a specific allegation of ``` CRL.RP No.440 of 2021 12 ``` criminal conspiracy between the petitioner and the other accused in providing the same. The fact that the petitioner had contacts over the phone with the 1st accused on the previous day of the examination and when the examination was going on is prima facie evident from the materials relied on by the prosecution. The contention raised by the learned counsel for the petitioner is that merely because certain phone conversations took place between parties, it cannot lead to the inference that the petitioner had conveyed the answers to the 1[st] accused. It is also contended that even if it is assumed that he conveyed the answers, that by itself cannot lead to the conclusion that while giving answers to the 1[st] accused, the petitioner was aware that the 1[st] accused was eliciting such answers from the petitioner to pass on the same to the other accused who was attending the examination. ``` CRL.RP No.440 of 2021 13 ``` However, the said question is a defence available to the petitioner in the trial. The questions such as what were the contents of the conversation or whether that conversation was with the knowledge of the petitioner as to the manipulation proposed to be conducted in the examination, etc., are the matters to be considered during the course of trial being the questions of fact. No conclusion regarding the same can be reached at this stage of the proceeding. Here, as of now, there is a specific allegation that a criminal conspiracy was ``` ``` hatched between the petitioner and the other accused, particularly the 1st accused, to cause manipulation in the examination in the manner referred to above. In support of the same, the ``` ``` prosecution relies on scientific evidence in the ``` ``` form of call data records from the mobile phone seized from the possession of the petitioner. ``` CRL.RP No.440 of 2021 14 ``` 10.The involvement of the petitioner is not confined to conveying the answers of the questions to the 1[st] accused alone. There is also evidence that the 1st accused made arrangements by contacting CW16, a reporter of Kairali T.V., to air an interview of the 1st accused on a news channel while the 1st accused was absconding, and the police were behind him to secure his arrest. Therefore, this is also a matter that creates suspicion regarding the allegations against the petitioner. It is a well settled position of law that at the time of framing charges the probative value of the material on record has to be considered, to find out whether a prima facie case is made out. The court is not expected to go deep into the matter and hold that the material would not warrant a conviction. The only question to be considered is whether a prima facie case is made out or ``` CRL.RP No.440 of 2021 15 ``` materials in the final report evoke a grave suspicion as to the involvement of the petitioner. The learned Senior Counsel raised a contention as to the high improbability of the allegations against the petitioner being correct in view of the fact that being an experienced lawyer with 35 years of practice at the Bar, it is highly unlikely that he would use a mobile phone registered in his name if he intended to commit such an act. However, it is a question that need not be answered at this stage of proceedings. The evaluation of the materials based on the possibility of the defences raised by the petitioner is not possible at this stage. What is relevant is whether a prima facie case is made out from the evaluation of the materials placed on record. While doing the said exercise, the court has to assume that the allegations raised are ``` CRL.RP No.440 of 2021 16 ``` correct, but even if that be so, the offences are ``` ``` not be made out. ``` ``` 11. Similarly, it was also contended by the learned Senior Counsel that, considering the duration of the call between the petitioner and the 1[st] accused, it is highly doubtful as to whether it would be possible to enter into a criminal conspiracy for committing a manipulation of this nature and also to convey the answers to the question. Yet again this is another aspect which is required to be considered during the ``` ``` course of trial and that question cannot be answered at the time of framing charge. ``` ``` 12. Thus, after carefully going through the ``` ``` entire materials placed before me, I am of the ``` ``` view that the materials do indicate a prima facie case against the petitioner, which evokes a grave suspicion against him. Therefore, this is not a ``` CRL.RP No.440 of 2021 17 ``` case in which the petitioner can be discharged ``` ``` under section 239 of Cr.PC. ``` ``` In such circumstances, I find no merits in this Crl.RP, and accordingly, it is dismissed. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` CRL.RP No.440 of 2021 18 ## `APPENDIX OF CRL.REV.PET 440/2021` |`PETITIONER’S`|`ANNEXURES`| |---|---| |`ANNEXURE A`|`TRUE COPY OF THE ORDER DATED 19.06.2019 IN`| ||`CRIMINAL M.C NO.5951 0F 2016 PASSED BY THIS`| ||`HONOURABLE COURT`| |`ANNEXURE B`|`TRUE COPY OF THE MAHAZAR PERTAINING TO THE`| ||`SEIZURE OF THE MOBILE HANDSET OF THE REVISION`| ||`PETITIONER WITH THE DUAL SIM CARDS PRODUCED`| ||`AS PART OF RECORDS BY THE PROSECUTION DATED`| ||`28.01.2011`| |`ANNEXURE C`|`TRUE COPY OF THE COMMUNICATION ISSUED BY THE`| ||`REVISION PETITIONER TO THE GENERAL MANAGER,`| ||`BSNL, KOLLAM DATED 14.01.2011 REQUESTING`| ||`SUSPENSION OF SERVICE OF THE MOBILE NUMBER`| ||`BELONGING TO THE REVISION PETITIONER`| |`ANNEXURE D`|`TRUE COPY OF THE REQUISITION ISSUED BY THE`| ||`REVISION PETITIONER TO THE GENERAL MANAGER,`| ||`BSNL, KOLLAM REQUESTING FOR ISSUE OF`| ||`DUPLICATE SIM OF THE MOBILE NUMBER BELONGING`| ||`TO THE REVISION PETITIONER DATED 24.01.2011`|