In this revision filed under Section 397 read with Sec. 401 Cr.P.C., the petitioner who is the 3rd accused in S.C. 455 of 2003 on the file of the IV Addl. Sessions Court, (Court of Special Judge SPE/CBI-II) Ernakulam assails the order dated 8-6-2007 passed by the Special Judge dismissing CrI.M.P. 2439 of 2007 filed by the petitioner herein seeking his discharge under Sec. 227 Cr.P.C.

2. I heard Advocate Sri Raja Vijayaraghavan, the learned counsel appearing for the revision petitioner, Sri P. G. Thambi, the learned Director General of Prosecutions and Sri S. Sreekumar, the learned Standing Counsel for the C.B.I.

ARGUMENTS FOR DISCHARGE

3. The learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:

The prosecution case is that one Naxalite Varghese who was allegedly killed in a police encounter on I8-2-1970 was shot dead by the first accused, a C.R.P.F. Constable by name Ramachandran Nair who is now no more and that the said Ramachandran Nair was given orders to shoot Naxalite Varghese by the then Dy.S.P., Lakshmana and the then D.I.G. Northern Range, P. Vijayan (the petitioner herein) who had questioned Naxalite Varghese from the Thirunelli forest area. An affidaivit filed by deceased first accused as the 4th respondent in a Writ Petition filed before this court admitting that he fired the fatal shot at Naxalite Varghese, an extra judicial confession of the said first accused and taken down by C.W.32 (Jayadevan–a police constable and a friend of the first accused), the 161 statement of the said C.W.32, the statement of C.W21 (Muhammed Haneefa), a C.R.P.F. Constable who is alleged to have been present with A-I at the time of incident, the statement of C. W.31 to whom A-I is alleged to have disclosed the incident of the fake encounter and the statement of C.W.6 (Vasu, a Naxalite) to whom A-I is alleged to have disclosed the fake encounter are inter alia the materials relied on by the prosecution to rope in the petitioner. A close reading of the 1 61 statements of the aforementioned witnesses would not reveal the presence or participation of the petitioner herein. There is nothing in their statements even to suggest the presence of the petitioner herein in the Thirunelli forest area on 18-2-1970 when Naxalite Varghese was allegedly shot dead. The affidavit allegedly sworn to by the first accused also does not implicate the petitioner herein. Even if it does, it is the weekest piece of evidence which cannot be relied on unless corroborated in material particulars. Moreover, since the first accused is no more, there is no question of his confession being relied on as a piece of evidence against the petitioner herein because it is now impossible for the prosecution to jointly try the first accused along with the petitioner herein in which case alone the confession of the first accused becomes admissible under Sec. 30 of the Evidence Act. That apart, such a confession by a co-accused is a very week piece of evidence. Moreover, the affidavit furnished by the first accused was the basis of which the police registered the crime and therefore, it is the first information statement in the case. Such a statement is not a substantive piece of evidence and can be used only to corroborate the statement of the maker or to contradict him provided the maker is alive. Here, the maker is not only not alive, but also was made an accused in the case and, therefore, no useful purpose could be derived from the said affidavit. A trial on such material will be an exercise in futility. The leaned Judge while considering the question of framing the charge under Sec. 227 Cr.P.C. 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. Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will