K.G Stephena vs State Of Kerala

R.Narayana Pisharadi, J

The revision petitioner is the first accused in the case C.C.No.6/2015 pending in the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram.

There are three accused in the above case. The first accused was the Block Scheduled Caste Development Officer at Chavara and the second accused was a Clerk in the office of the District Scheduled Caste Development Office at Kollam. The third accused is a private person. He was the Principal of Axis Parallel College.

The prosecution case, in short, is as follows. On 01.12.2003, the third accused submitted 35 forged applications for granting educational concession which was intended for parallel college students who belong to scheduled castes and other eligible communities. The applications were forwarded to the District Scheduled Caste Development Office by the then Chavara Block Scheduled Caste Development Officer. The amount sanctioned was ordered to be distributed to the eligible students. A specific order was given by the District Scheduled Caste Development Officer to the first accused that the amount shall be disbursed to the students only in the presence of a representative from the District Office and that the original eligibility certificate, hall ticket and mark list etc in respect of the students shall be verified at the time of disbursing the amount. However, the first and the second accused, in pursuant to a conspiracy hatched with the third accused, disbursed an amount of Rs.1,55,515/- to the third accused, without verifying the details regarding the students who were eligible to get the amount and without ascertaining their identity. Thus they allowed the third accused to get undue pecuniary advantage. Therefore, it is alleged that the accused committed the offences punishable under Section 13(1)(c) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and also under Sections 420, 468, 471 and 120B of the I.P.C.

The petitioner, who is the first accused, filed application for discharge under Section 239 of the Code of Criminal Procedure (for short 'the Code') in the Special Court. As per the order dated 29.04.2021, the Special Court dismissed that application.

Aggrieved by the aforesaid order passed by the Special Court, the first accused has filed this revision petition.

Heard learned counsel for the petitioner and the learned Public Prosecutor.

Learned counsel for the petitioner has raised the following two contentions: (1) The finding of the Special Court that the defence of the accused and the documents produced by him cannot be taken into account at the time of considering the application for discharge is not correct. (2) The Special Court failed to consider and evaluate the materials produced by the prosecution to find out whether a prima facie case is made out against the petitioner.

A three-Judge Bench of the Supreme Court, in State of Orissa v. Debendra Nath Padhi : AIR 2005 SC 359, has categorically held that, at the time of framing the charge, only the materials produced by the prosecution can be looked into by the Court and the materials produced by the defence cannot be looked into.

It has consistently been held by the Supreme Court that, at the time of framing the charge, the only documents which are required to be considered are the documents submitted by the investigating agency along with the charge-sheet. Any document which the accused wants to rely upon cannot be considered. If such evidence is considered, there would be a mini trial at the stage of framing of charge.

However, learned counsel for the petitioner has invited the attention of this Court to a two-Judge Bench decision of the Apex Court in Rukmini Narvekar v. Vijaya Satardekar : AIR 2009 SC 1013, wherein it has been held as follows:

"Thus in our opinion while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D. N. Padhi's case (supra), there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted".

Even if in a rare case it is permissible to consider the documents or materials produced by the defence, which would convincingly establish that the whole prosecution version is totally absurd, preposterous or concocted, I am not satisfied that the instant case falls in that category.

The second contention raised by the petitioner is that the trial court failed to advert to the materials produced by the prosecution to find out whether a prima facie case against her has been made out or not.

At this juncture, it is advantageous to extract the following passages in the impugned order.

"The records produced by the prosecution would prima facie reveal that educational concession amount of 1,55,515/- intended for 35 Scheduled Caste and OEC students was disbursed on 19.05.2005 i.e., during the period while A1 was the Scheduled Caste Development Officer, Chavara Block. The materials produced by the prosecution would also prima facie reveal that A1 was duty bound to verify the documents viz., the eligibility certificates, hall ticket, mark sheets, attendance register and ID cards prior to distribution of the amount."

Thereafter, the trial court concluded as follows:

"The 161 Cr.P.C statements of the prosecution witnesses coupled with the other materials produced by the prosecution would prima facie indicate that there are grounds for presuming that there is a prima facie case which is triable by this court and this is not a case where the A1 is entitled to get an order of discharge u/s.239 Cr.P.C. Therefore the petition for discharge filed by petitioner/A1 deserves dismissal. I do so."

The above passages in the impugned order would show that there is some force in the contention raised by the learned counsel for the petitioner that the trial court failed to advert to the materials produced by the prosecution to find out whether a prima facie case has been made out against the petitioner.

Under Section 227 of the Code, the trial court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 of the Code can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power of discharge under Section 245(1) of the Code has to be exercised by the Magistrate when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction".

There is difference in the language employed in the above provisions. But, notwithstanding these differences, whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused (See Tarun Jit Tejpal v. State Of Goa : 2019 SCC OnLine SC 1053).

In Union of India v. Prafulla Kumar Samal: AIR 1979 SC 366, the Supreme Court has held that, at the stage of framing charge, the trial court has the power to sift and weigh the evidence to find out whether there is any prima facie case against the accused and if two views are equally possible and the Judge is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. The Supreme Court further observed that the Judge should not act as a mouth-piece of the prosecution but he has to consider the broad probabilities of the case, the total effect of the evidence, any basic infirmities in the case and so on. The Supreme Court clarified that this however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

In State of Maharashtra v. Som Nath Thapa : AIR 1996 SC 1744, the Supreme Court has held that, if there is a ground for presuming that the accused has committed the offence, it can be said that a prima facie case has been made out against the accused but at the stage of framing of charge, the probative value of the materials on record should not be gone into.

In State v. Anup Kumar Srivastava : AIR 2017 SC 3698, the Apex Court has held as follows:

"Framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial..... The legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. The court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction".

(emphasis supplied)

In State v. S.Selvi : AIR 2018 SC 81, it has been held as follows:

"The Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the statements and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial."

(emphasis supplied)

In Asim Shariff v. National Investigating Agency : AIR 2019 SC 3083, the Apex Court has held as follows:

"It is settled that the Judge while considering the question of framing charge under Section 227 Cr.P.C in sessions cases (which is akin to Section 239 Cr.P.C pertaining to warrant cases) 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 material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 Cr.P.C, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not supposed to hold a mini trial by marshalling the evidence on record".

(emphasis supplied)

It is well-settled that at the stage of framing the charge, the trial court is required to evaluate the materials and documents on record with a view to find out whether the facts emerging therefrom, taken at their face value, disclose the existence of the ingredients constituting the offences alleged against the accused (See State v. M.R.Hiremath : AIR 2019 SC 2377).

It is well settled that at the stage of framing charge, the trial court has power to sift the materials produced by the prosecution to find out whether a prima facie case against the accused is made out or not. In order to frame the charge, the trial court has to be satisfied that there is ground for presuming that the accused has committed the offence. Though a roving enquiry or mini trial is not permissible, the court shall consider whether the materials produced by the prosecution, if accepted as true, attract the ingredients of the offences alleged against the accused. If there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then the court shall proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be within its right to discharge the accused. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the materials cannot be gone into at that stage. Sifting and weighing of evidence and evaluation of materials produced by the prosecution have to be undertaken by the trial court only for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and to determine whether the facts emerging from the materials, taken on their face value, disclose the existence of the ingredients necessary to constitute the offence or offences alleged against the accused and not for deciding whether such materials are sufficient to enter a conviction against the accused. As held in Anup Kumar Srivastava (supra), the satisfaction of the court in relation to the existence of the constituents of an offence and the facts leading to that offence is a sine qua non for exercise of the jurisdiction of the trial court at that stage.

It cannot be said that the Court at the stage of framing the charge has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the liberty of a person and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173 of the Code consider it proper to institute the case. The responsibility of framing the charge is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution (See Century Spinning and Manufacturing Company Limited v. State of Maharashtra : AIR 1972 SC 545).

In the present case, the trial court has not specifically considered the merits of any of the contentions raised by the petitioner in the application for discharge filed by her. The trial court did not specifically refer to the statement of any prosecution witness. The trial court also did not evaluate the materials produced by the prosecution to ascertain whether or not the facts emerging from such materials would constitute the offences alleged against the petitioner. The trial court did not consider whether the materials produced by the prosecution are sufficient to indicate that the petitioner did not verify the required documents before disbursing the amount. The trial court has made only a general observation that the statements of witnesses coupled with other materials produced by the prosecution would indicate a prima facie case against the petitioner. The trial court did not specifically refer to any such statement or material. Making such general observations can be no substitute for the exercise to be undertaken by the trial court at that stage.

The discussion above would show that this is a clear case of non-exercise of jurisdiction by the trial court. Therefore, the impugned order cannot be sustained and it is liable to be set aside.

Consequently, the revision petition is allowed and the impugned order is set aside. The application for discharge filed by the petitioner is restored to the file of the trial court. The trial court is directed to consider afresh the application for discharge filed by the petitioner and pass appropriate orders thereon in accordance with law.