G.J. KUMAR @ JOSEPH KUMAR S/O GEORGE Vs STATE OF KARNATAKA

Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent - State.

Perused the order impugned in this petition. The petitioners were charged by the police by way of filing charge sheet for the offences under

Section 292(1)(2), 506, 509, 120B R/w Section 34 of IPC as well as Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act, 1989.

The petitioners approached the trial Court after their appearance under Section 227 of Cr.P.C., for their discharge. On perusal of the

application filed for their discharge in detail shows that, they have contended with regard to each and every offences how the alleged offences are

not constituted and how they are entitled for discharge for the above said offences. Whether those contentions are valid or not has to be tested

from the materials available on record i.e., entire charge sheet papers filed by the police. Instead of doing that, the leaned Sessions judge has

proceeded to pass the impugned order in a very cryptic manner. As stated that, the accused No.1 to 4 claimed that they are converted to

Christians and they have produced the copies of same documents. The Court held that the same is matter of evidence which have to be proved

during the course of the trial. Having come to such conclusion only on the offence under Section 3(i)(x) of SC & ST Act the Court has framed the

charges in violating the provision, Section 228 of Cr.P.C., in so far as the Accused No.1, 3 and 4 concerned and not against the accused No.2.

But as already narrated, the application is filed not only for discharge from Section 3(i)(x) but in its entirety the accused have sought for discharge.

Learned Sessions Judge has not at all looked into entire charge sheet papers to ascertain what are the allegations made against the petitioners

and even accepting them on face value whether they constitute any of the offence as alleged against them. It is worth to mention here a decision of

the Apex Court reported in AIR 2010 SC 663 (P.Vijayan /vs./ State of Kerala and another, wherein the Apex Court has categorically observed

that:

The judge should not act as a mere Post Office to frame the charge at the behest of prosecution. But has to exercise his judicial mind to facts of

case in order to determine whether a case for trial has been made out by prosecution. The sufficiency of ground would take within its fold the

nature of the evidence recorded by the police or the documents produced before the Court which ex-facie disclose that there are suspicious

circumstances against the accused. The Apex Court has also observed that Court empowered to discharge accused if two views are possible and

one of them give rise to suspicion only, as distinguished from grave suspicion and whether the trial will end in conviction or acquittal.

Bearing in mind the above said dictum of the Apex Court, the trial Court has to act upon and examine the materials produced by the police in

the charge sheet and on facts whether they are sufficient to proceed against the accused, that is main object of filing of application under Section

227 of Cr.P.C. Even on plain reading of the above said provision indicates that, the Court upon consideration of the record of the case and the

documents submitted and after hearing the submissions of the accused and the prosecution, then only the judge should consider whether there are

sufficient grounds to proceed against the accused.

All these exercise appears to have not been done by the trial Court and it only in superficial manner considered the case only with regard to the

Section 3(i) (x) of the SC & ST Act and even the allegations how it attract is also not stated by the learned Sessions Judge.

Under the above said circumstances, the order is very cryptic and does not comply with the above said directions of the Apex Court. Hence,

the order deserves to be set aside. The application has to be restored to file. Hence, the following:

ORDER

(i) The petition is allowed.

(ii) The order dated 29.11.2017 passed by the LXX Addl. City Civil and Sessions Judge and Spl.

Judge, Bengaluru is hereby set aside.

(iii) Consequently the application filed under Section 227 of Cr.P.C. is restored on the file of the said Court with a direction to comply with the

guidelines as noted above in the body of this order and pass appropriate orders in accordance with law including the offences under Section 3(i)

(x) of the SC & ST Act.