A. Badharudeen, J
1. This Revision petition has been filed under Section 397 r/w 401 of the Code of Criminal Procedure (for short ‘Cr.P.C.’ hereinafter) and the revision petitioner is the 5th accused in SC.No.438/2015 on the files of Additional Sessions Court, Ernakulam.
2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor in detail. Perused the order impugned and the relevant documents, including final report and statement of the witnesses.
3. The prosecution allegation is that accused Nos.1 and 2 abducted CW1, a minor, engaged her in prostitution against her will with intention of monetary gain and during April, 2011 vacation after SSLC examination, she was brought by accused Nos.1 and 2 to Thiruvananthapuram, and handed over her to accused Nos.3 and 4 and accused Nos.3 and 4 handed over CW1 to the petitioner/5th accused for a consideration of Rs.75,000/- and the petitioner/5th accused took CW1 to Palunkal Village in a TaTa Safari Car and illegally detained her in a house at Pallunkal Village in Kanyakumari District and raped her three times. Thereby the prosecution alleges commission of offences punishable under Sections 366(A), 372, 373, 376, 342, 506(i) r/w 34 of Indian Penal Code and Section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (`J.J Act’ for short).
4. The petitioner herein filed a petition before the trial court under Section 227 of Cr.P.C seeking discharge on the ground that there are no materials to proceed against him in this matter. The learned counsel for the petitioner reiterated the contentions raised before the trial court mainly thrusting on the submission that no specific date is alleged in the final report disclosing the overt act at the instance of the petitioner. Further, impossibility of committing rape by the petitioner against the victim was raised on the ground that from 13.06.2011 onwards the petitioner was in police custody as an accused in another case, ie. Parur rape case. That apart, the prosecution has a case that the accused was absconding from the second week of May, 2011.
5. The learned Special Prosecutor before the trial court opposed the contentions and placed report of the investigating officer while arguing that this is not a case of discharge as against the petitioner.
6. In paragraph 9 of the order, the learned Additional Sessions Judge considered the rival contentions and observed as under:
“9. I shall analyse the contentions raised by the petitioner in view of the above stated binding legal precedents on the subject. I have anxiously considered the contentions raised by the petitioner in the above petition. It shows that the petitioner is seeking discharge mainly on the basis of some inconsistencies in the statements given by CW1 regarding the period during which the offences alleged in this case are committed. The petitioner also tries to highlight the improbability of commission of the crime by him while he was absconding due to apprehension of arrest in another rape case. The crux of the averments raised in the above petition is that the petitioner was falsely framed in this case by a senior police officer in order to settle his personal score against the petitioner and about the non-availability of proof to establish the prosecution allegation against him and the inconsistencies in the statement of CW1 regarding the instances alleged against the petitioner. But, according to me, at this stage, this court is not concerned about the sufficiency of proof to establish the guilt of the petitioner. As opined by the Hon’ble Supreme Court of India in the above cited decisions, at this stage, this court cannot appreciate the evidence by finding out inconsistencies in the statement of witnesses. I have gone through the final report and documents produced from the side of the prosecution. Having considered the same, I am of the view that they are sufficient for raising a strong suspicion that the petitioner has committed the offences alleged by the prosecution. The improbability of prosecution case and innocence of the accused is a matter that has to be established at the time of trial by cross examination of the witnesses. Hence, I am of the view that the petitioner is not entitled for discharge under Section 227 of the Cr.P.C. The point is decided accordingly.”
7. While opposing discharge, the learned Public Prosecutor would submit that going by the allegations, materials to attract offences under the IPC and J.J Act are made out, prima facie, warranting framing of charge and trial and, therefore, the learned Special Judge rightly dismissed the discharge petition. Therefore, the said order doesn’t require any interference.
8. In so far as the essentials to be considered while considering the petition under Section 227 of Cr.P.C and while framing charge under Section 228 of Cr.P.C, the law is well settled.
9. Coming to the essentials to be considered while considering discharge sought under Section 227 of Cr.P.C and framing charge under Section 228 of Cr.P.C, in the decisions reported in [2024 KHC OnLine 586], Sandeep G. v. State of Kerala, this Court set out the principle as under, following the Apex Court decisions in this regard.
“(i) Matters to be considered at the time of considering discharge and while framing charge are not aimless etiquette. Concomitantly the same are not scrupulous exertion. Keeping an equilibrium in between aimless etiquette and scrupulous exertion, the trial judge need to merely examine the materials placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on the basis of police charge/final report. The trial Judge shall look into the materials collected by the investigating agency produced before the Court, to see, prima facie, whether those materials would induce suspicious circumstances against the accused, so as to frame a charge and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged. But if the court is of the opinion, after such consideration of the materials there are grounds for presuming that accused has committed the offence/s which is/are triable, then necessarily charge shall be framed.
(ii) The trial Judge has to apply his judicial mind to the facts of the case, with reference to the materials produced by the prosecution, as may be necessary, to determine whether a case has been made out by the prosecution for trial on the basis of charge/final report.
(iii) Once the accused is able to demonstrate from the materials form part of the charge/final report at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at this stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr.P.C. is to assist the court to determine whether it is required to proceed to conduct the trial.
(iv) At the stage of considering an application for discharge the court must proceed on an assumption that the materials which have been brought on record by the prosecution are true and evaluate said materials, in order to determine whether the facts emerging from the materials taken on its face value, disclose the existence of the ingredients necessary of the offence/s alleged.
(v) The defence of the accused not to be looked into at the stage when the accused seeks discharge. The expression "the record of the case" used in Section 227 Cr. P.C. is to be understood as the documents and objects, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the prosecution.
(vi) The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record shall not be evaluated.
(vii) At the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.
(viii) 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 are really the function of the trial Judge, after the trial. At the stage of Section 227, the Judge has merely to sift the prosecution materials in order to find out whether or not there are sufficient grounds to proceed with trial of the accused.
(ix) Strong suspicion in favour of the accused, cannot take the place of proof of his guilt at the conclusion of the trial. But at the time of framing charge, if there is 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. In such case also charge needs to be framed to permit the prosecution to adduce evidence.
(x) If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.”
10. It is discernible from Annexure R1(A) judgment in W.P(C).No.19163/2015, produced in Crl.R.P.No.53/2020, that the petitioner moved W.P(c).No.19163/2015 before this Court and in paragraph Nos.4 and 5 of Annexure-R1(A) judgment the contentions raised by the petitioner are stated, which are extracted below:
“4. The petitioner claims that he is innocent and has been falsely implicated at the instance of the 4th respondent. His name was not disclosed in the FIS in both the cases. According to the petitioner, the 4th respondent is a highly corrupt officer involved in several business dealings. He was carrying great clout. Petitioner was falsely implicated in both crimes at the instance of the fourth respondent. Since no action was taken, Ext.P14 complaint was submitted to the Government requesting for CBI investigation.
5. The wife of the petitioner had filed W.P(C).No.1403/2013 before this Court seeking the above relief. In the meanwhile, an enquiry was conducted by the Superintendent of Police and also ADGP (Intelligence) and filed two reports in the above writ petition. It was claimed by the petitioner that both the reports indicated that the petitioner herein was wrongly implicated in the case. The petitioner thereafter approached this court claiming that no action had been taken by the Government on Ext.P7. Earlier W.P(c).No.1403/2013 filed by the wife was hence closed by judgment dated 14.07.2013. The report of the Superintendent of Police and ADGP were directed to form part of the records in the present case. The relief sought in the present writ petition is to direct the first respondent State to order investigation by the CBI. It was requested that the first respondent shall be directed to hand over the investigation of Crime No.346/2011 of North Paravoor Police Station and Crime No.549/2011 of Varapuzha Police Station to the CBI. It was also requested to direct the CBI to conduct investigation into the role of the 4th respondent in implicating the petitioner in the above case.”
11. After having analysed the case put up by the petitioner in extenso, learned Single Judge of this Court dismissed the Writ Petition negativing the contention raised by the petitioner that he had been implicated in this crime by the 4th respondent. The above verdict was challenged before a Division Bench of this Court in W.A.No.2355/2018 and as per Annexure R1(B) judgment dated 05.12.2018, the appeal was dismissed. In paragraphs 6 to 8 of the above judgment, the Division Bench stated as under:
“6. Further, the learned Judge had recorded in paragraphs 27, 28, 29, 33 and 37 that the 4th respondent was not in charge of either of the two crimes and there is nothing to show that the senior police officer had any connection with the investigation of those two cases. The court also referred to the complaint filed by the petitioner’s wife to the Chief Minister, as highlighted by the petitioner’s counsel to establish his innocence, to conclude to the contrary that, the same would not suggest that the petitioner was falsely implicated in the crimes. It was also noted that even before the Ext.P7 complaint was submitted by the accused’s wife to the Chief Minister, levelling allegations against the 4th respondent, the identity of the petitioner and the place of crime was established by the victims themselves, with reasonable precision.
7. Since the accused tried to set up a case of being framed out of vendetta, the court took pain to go through the case diary to observe that both victims in the separate crimes had specifically implicated the petitioner as one of the perpetrator of the crime and enough materials had came up during the investigation, to implicate the accused. The learned Judge accordingly, concluded that there is nothing to suggest that the 4th respondent had anything to do with the arraignment of the accused in the two crimes particularly in the absence of any evidence to suggest that the investigating Officer was influenced by the 4th respondent.
8. We have carefully considered the basis of the impugned judgment and see no reason to take a different view of the matter. Therefore, bearing in mind the fact that the concerned cases are now posted for framing of charges before the trial court and the same was considerably delayed on account of the interim order operating in the writ proceeding, the matter should now be allowed to proceed without any hindrance in accordance with law. The Writ Appeal is dismissed accordingly without admission.”
12. Here, the allegation of prosecution is that the accused herein committed rape on the victim during vacation, after SSLC Examination, ie., during the month of April, 2011. The victim further stated that she was subjected to rape during June, 2011 also. But the date of the second occurrence is not specified apart from the month and year. Though the petitioner was detained in custody from 14.06.2011, it is possible for him to commit offence prior to that and his mere abscondence, if any, is not a reason to disbelieve the allegation that he had committed the offence during the month of April and June, 2011. Since there are specific allegations of the prosecution, as born out from the statement of the victim as well as witness, that the accused herein obtained the custody of the victim from accused Nos.3 and 4 and he had took the victim to Pallunkal Village in a TATA Safari car and illegally detained her at a house in Pallunkal Village in Kanyakumari district and subjected her to rape 3 times, primary materials are in abundance to go for trial after framing discharge. In fact, for the purpose of proving the charge and allegations, the prosecution had furnished many materials such as statements of 18 witnesses and relevant documents. Therefore, discharge plea of the petitioner was found unsustainable by the trial court on justified grounds. Therefore, the said order doesn’t warrant any interference by exercising the power of revision. Accordingly, this Revision Petition stands dismissed.
13. Interim order granted shall stand vacated.
14. Having considered the fact that this is a crime of the year 2015, the trial court is directed to expedite the trial and finish the same at the earliest, at any rate, within a period of four months of receipt of a copy of this order.
Registry shall forward a copy of this order to the jurisdictional court for information and for further steps.
