Kerala HC Affirms SP's Discharge: Prosecution-Disowned Approver Testimony Insufficient to Frame Charges (S.227 CrPC) - 2025-05-19

Kerala High Court Upholds Discharge of SP N.Abdul Rasheed , Cites Unreliable Approver Testimony

Ernakulam: The Kerala High Court, in a significant ruling, has upheld the discharge of N.Abdul Rasheed , a then Superintendent of Police (SP), in a case concerning an attack on journalist V.B.Unnithan . Justice G. Girish dismissed three criminal revision petitions filed by the Central Bureau of Investigation (CBI), the de facto complainant Unnithan , and a third-party journalist, G.Vipinan. The petitions challenged a 2019 order by the Special Judge (SPE/CBI), Thiruvananthapuram, which discharged Rasheed , the fifth accused, under Section 227 of the Code of Criminal Procedure (Cr.PC).

The High Court affirmed the Special Judge's finding that there was insufficient material to proceed against Rasheed , primarily because the sole evidence linking him to the crime – the statement of an approver named "Container Santhosh " – had been disowned by the CBI itself due to its perceived falsehood.

Case Background: Attack on Journalist and Twists in Investigation

The case dates back to 2011 when V.B.Unnithan , a Mathrubhumi staff reporter, was brutally attacked and sustained serious injuries. The prosecution alleged that the attack was a result of a criminal conspiracy hatched by certain police officers, including Dy.SP Santhosh Nair (Accused No. 4) and N.Abdul Rasheed (Accused No. 5, then Dy.SP), due to Unnithan 's investigative reports exposing their alleged "nefarious activities."

One key incident cited was Unnithan 's report about Rasheed allegedly pulling the chain of the Rajdhani Express to deboard at Kollam, which purportedly intensified Rasheed 's motive for revenge.

The investigation initially handled by local police and then the CBCID (where Rasheed was a Dy.SP at the time) was eventually transferred to the CBI. During the CBI probe, "Container Santhosh ," allegedly involved in executing the attack, was made an approver. However, the CBI later conducted further investigation and, in a supplementary final report, stated that Container Santhosh had not made full and true disclosures and had given false statements. The agency even approached the High Court to quash the pardon granted to him.

The Special CBI Judge, in his order dated April 24, 2019, discharged Rasheed , noting the CBI's own stance against their approver and the lack of other credible evidence to link Rasheed to the conspiracy or the attack.

High Court's Scrutiny: Insufficiency of Discredited Evidence

The High Court meticulously examined the Special Judge's order and the arguments presented. Justice G. Girish observed that the "only material to link the fifth accused with the crime alleged...is the statement given by approver Container Santhosh ."

The Compromised Approver

The Court heavily relied on the CBI's own submissions in Crl.M.C.No.1544/2016, where the agency sought to revoke Container Santhosh 's approver status. The CBI had stated: > "Annexure-A1 order tendering pardon to accused respondent is established to be on the basis of the false and deceptive disclosure statements... He had deceptively refrained from making a full disclosure of the crime occurrences, with a mala fide intention to exculpate himself... The respondent has per se deceived the investigating agency and the court."

Given this, the High Court questioned how the prosecution could insist on relying on such a "tainted statement" for framing charges. "Insisting on placing reliance upon the statement of the above person for framing charges would thus amount to urging the Court to rely on the statement of the co-accused to frame charges against the fifth accused," the Court reasoned.

Legal Position on Approver Evidence and Co-Accused Statements

The judgment extensively discussed the legal principles governing approver testimony and the use of co-accused statements:

* Citing State of Maharashtra v. Abu Salem Abdul Kayyum Ansari [(2010) 10 SCC 179] , the Court reiterated that once an approver's pardon is withdrawn or forfeited for non-compliance with conditions, "he is reverted to the position of an accused and liable to be tried separately and the evidence given by him, if any, has to be ignored in toto."

* Referencing Dipakbhai Jagdishchandra Patel v. State of Gujarat [(2019) 16 SCC 547] and Haricharan Kurmi v. State of Bihar [AIR 1964 SC 1184] , the Court emphasized that a co-accused's confession "cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusions."

The Court found that if charges were framed against Rasheed based on Container Santhosh 's statement, and Santhosh was later tried as an accused (as desired by the CBI), Rasheed would be unfairly facing trial based solely on a co-accused's statement, which is impermissible.

Other Evidence Deemed Insufficient

The High Court agreed with the Special Judge's assessment that statements from other prosecution witnesses (CW8, CW38, CW61, CW74 & CW157) were "devoid of any indications capable of creating even an inference that the fifth accused was involved in the conspiracy." For instance, the de facto complainant (CW8) had no direct knowledge of Rasheed 's involvement, and other statements were found to be too remote or inconclusive.

Standard for Framing Charges

The Court underscored that mere "surmises and conjectures cannot form the basis for framing charges." It cited:

* Satish Mehra v. State (NCT of Delhi) [(2012) 13 SCC 614] : "A criminal trial cannot be allowed to assume the character of a fishing and roving enquiry."

* L. Krishna Reddy v. State [(2014) 14 SCC 401] : The court has a "bounden duty...to sift through the material to ascertain whether a prima facie case has been established."

The High Court also noted the Special Judge's consideration of evidence (CW50, CW52, CW154) suggesting Container Santhosh had a motive to falsely implicate Rasheed for not yielding to pressure to hush up the case during the initial CBCID investigation.

Final Decision: Discharge Upheld

Concluding that the Special Judge had correctly applied legal parameters and scrutinized all relevant materials, the High Court found "absolutely no reason to conclude that the impugned order passed by the learned Special Judge is vitiated by any illegality, impropriety or mistake."

The revision petitions were dismissed, and the discharge of N.Abdul Rasheed was confirmed. The trial court records were directed to be transmitted for the trial against the other accused to commence. This judgment reinforces the principle that the prosecution cannot build a case on evidence it has itself discredited, particularly when such evidence is the primary basis for implicating an accused.