2010 Supreme(SC) 104

2010 (2) Supreme 199
SUPREME COURT OF INDIA
P. Sathasivam and H.L. Dattu, JJ.
P. Vijayan — Appellant
versus
State of Kerala & Anr. — Respondents
Criminal Appeal No. 192 of 2010
(Arising out of S.L.P. (Crl.) No. 4708 of 2007)
Decided on : 27-1-2010

IMPORTANT POINT
Section 227 of Code of Criminal Procedure Code,1973 confers special power on the Judge to discharge an accused at the threshold if upon consideration of records and documents, he find that “there is not sufficient ground” for proceeding against the accused.

Headnote:Criminal Procedure Code,1973-Section 227-Encounter by special police team killing Naxalite Varghese a prominent leader of the CPI (ML) in Kerala who was accused in cases relating to murder of landlords as well as attack on policemen- In the year 1998, reports appeared in various newspapers in Kerala that the killing of Varghese in the year 1970 was in a fake encounter and that senior police officers were involved in the said fake encounter-Pursuant to said news reports, several writ petitions were filed by various individuals and organizations before High Court of Kerala with a prayer that investigation may be transferred to Central Bureau of Investigation (CBI)- In the said writ petition, Constable filed a counter affidavit in which he made a confession that he had shot Naxalite Varghese on the instruction of the then Deputy Superintendent of Police (DSP)- He also stated that appellant was present when the incident occurred- Registration of FIR against appellant and two others by CBI for an offence under Section 302 IPC read with Section 34 IPC.-Appellant filed a petition under Section 227 of CrPC for discharge- Trial Judge dismissed said petition and passed an order for framing charge for offence under Sections 302 and 34 IPC- Revision Petition thereagainst – Dismissed by High Court –Appeal- Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of records and documents, he find that “there is not sufficient ground” for proceeding against the accused- In other words, his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused- If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused- Instantly though, Trial Judge had not assigned detailed reasons for dismissing discharge petition filed under Section 227, it was clear from his order that after consideration of the relevant materials charge had been framed for offence under Section 302 read with Section 34 IPC and because of the same, he dismissed the discharge petition- After evaluating materials produced by the prosecution and after considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against appellant and another accused framed a charge-Whether materials at the hands of the prosecution are sufficient or not are matters for trial- At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only remedy-Further, whether the trial will end in conviction or acquittal was also immaterial- All these relevant aspects had been carefully considered by High Court and it rightly affirmed order passed by Trial Judge dismissing discharge petition filed by A3-appellant-Appeal dismissed. (Paras 21 to 24)

        Criminal Procedure Code,1973-Sectiion 227 –Scope and ambit of- If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal- Further, the words “not sufficient ground for proceeding against the accused”clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has 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 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 which is really the function of the Court, after the trial starts- At the stage of Section 227, Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused- In other words, the sufficiency of ground would take within its fold the nature of 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. (Para 10)

       Facts of the Case :

        Naxalite Varghese a prominent leader of the CPI (ML) in Kerala who was accused in cases relating to murder of landlords as well as attack on policemen was killed in an encounter by police herein in the instant case. In the year 1998, reports appeared in various newspapers in Kerala that the killing of Varghese in the year 1970 was in a fake encounter and that senior police officers were involved in the said fake encounter.Pursuant to said news reports, several writ petitions were filed by various individuals and organizations before High Court of Kerala with a prayer that investigation may be transferred to Central Bureau of Investigation (CBI). In the said writ petition, Constable present in the encounter filed a counter affidavit in which he made a confession that he had shot Naxalite Varghese on the instruction of the then Deputy Superintendent of Police (DSP). He also stated that appellant was present when the incident occurred. FIR was registered against appellant and two others by CBIfor an offence under Section 302 IPC read with Section 34 IPC.Appellant filed a petition under Section 227 of CrPC for discharge. Trial Judge dismissed said petition and passed an order for framing charge for offence under Sections 302 and 34 IPC. Revision Petition thereagainst was Dismissed by High Court.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of records and documents, he find that “there is not sufficient ground” for proceeding against the accused. In other words, his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused.If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge accused. Instantly though, Trial Judge had not assigned detailed reasons for dismissing discharge petition filed under Section 227, it was clear from his order that after consideration of the relevant materials charge had been framed for offence under Section 302 read with Section 34 IPC and because of the same, he dismissed the discharge petition. After evaluating materials produced by the prosecution and after considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against appellant and another accused framed a charge. Whether materials at the hands of the prosecution are sufficient or not are matters for trial. At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only remedy.Further, whether the trial will end in conviction or acquittal was also immaterial.All these relevant aspects had been carefully considered by High Court and it rightly affirmed order passed by Trial Judge dismissing discharge petition filed by A3-appellant.Appeal held liable to be dismissed.

       Result : Appeal dismissed.