Vs. State Of Kerala & ANR.  INSC 63 (27 January 2010.
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 192
OF 2010 (Arising out of S.L.P. (Crl.. No. 4708 of 2007. P. Vijayan ....
Appellant (s. Versus State of Kerala & Anr. .... Respondent(s.
This appeal is directed against the judgment and order of the High
Court of Kerala at Ernakulam dated 04.07.2007 passed in Criminal Revision
Petition No. 2455 of 2007, in and by which, the learned single Judge, after
finding no ground to interfere with the order passed by the Trial Judge
dismissing discharge petition filed by the appellant herein, refused to
interfere in his revision.
According to the appellant, he is a retired IPS officer aged about
85 years. He enjoyed a considerable reputation as an IPS officer and had
retired as the Director General of Police, Kerala. In the course of his tenure
as a senior police officer, he controlled the Naxalite militancy which was
rampant in Kerala in the 1970s. In the 1970s, Naxalites under the banner of
CPI(ML., a militant organization, had taken up the cause of the poor through
armed appraisal and violence. The said organization committed various brutal
murders and dacoities including attacking police stations and murdering
innocent policemen. The State Government which was in power at the relevant
time took serious note of the said atrocities committed by the cadres of CPI
(ML. and took a decision to put an end to the said atrocities.
It is his further case that Naxalite Varghese was a prominent
leader of the CPI (ML. in Kerala during 1970s.
He was an
accused in cases relating to murder of landlords as well as attack on
policemen. Since, he was wanted in many grave criminal offences, he was hiding.
A special team consisting members of the Kerala Police as well as CRPF was
formed to nab Naxalite Varghese. On 18.02.1970, the police received a tip off
that he was present in the hut of one Shivaraman Nair and based on the said
information, the special team rushed to the spot and broke open the door of the
said hut and arrested Naxalite Varghese. However, while he was being taken to
the Mananthavadi police station in a police jeep, he tried to escape and
attacked the policemen resulting in clash between the police party and Naxalite
Varghese. During the said clash, in order to prevent Naxalite Varghese from
escaping, the police had to fire and in the shoot out he was killed. The
capture of Naxalite Varghese was highlighted as one of the achievements of the
Kerala Police at that time and the police personnel involved in the said
operation were given out of turn promotions and increments in appreciation of
being part of the team. The appellant had also received various medals while in
service for his role in tackling the naxalite militancy in Kerala.
It was further pointed out that from 1970 till 1998, there was no
allegation that the said encounter was a fake encounter. Only in the year 1998,
reports appeared in various newspapers in Kerala that the killing of Varghese
in the year 1970 was in a fake encounter and that senior police officers are
involved in the said fake encounter.
to the said news reports, several writ petitions were filed by various
individuals and organizations before the High Court of Kerala with a prayer
that the investigation may be transferred to Central Bureau of Investigation
(CBI.. In the said writ petition, Constable Ramachandran Nair filed a counter
affidavit dated 11.01.1999 in which he made a confession that he had shot
Naxalite Varghese on the instruction of the then Deputy Superintendent of
Police (DSP., Lakshmana. He also stated that the appellant was present when the
incident occurred. By order dated 27.01.1999, learned single Judge of the High
Court of Kerala passed an order directing the CBI to register an FIR on the
facts disclosed in the counter affidavit filed by Constable Ramachandran Nair.
Accordingly, the CBI registered an FIR on 03.03.1999 in which Constable
Ramachandran Nair was named as accused No. 1, Mr. Lakshmana was named as
accused No. 2 and Mr. P. Vijayan, the appellant herein, was named as accused
No. 3 for an offence under Section 302 IPC read with Section 34 IPC. After
investigation, the CBI filed a charge-sheet before the Special Judge (CBI.,
Ernakulam on 11.12.2002 wherein all the above mentioned persons were named as
A1 to A3 respectively for an offence under Sections 302 and 34 IPC.
By pointing out various reasons, his meritorious service and
nothing whispered for a period of twenty years, the appellant filed a petition
on 17.05.2007 under Section 227 of the Code of Criminal Procedure (in short
"CrPC". for discharge. The learned Trial Judge by order dated
08.06.2007, dismissed the said petition and passed an order for framing charge
for offence under Sections 302 and 34 IPC. Aggrieved by the aforesaid order,
the appellant filed a Criminal Revision Petition No. 2455 of 2007 before the
High Court of Kerala. By an impugned order dated 04.07.2007, learned single
Judge of the High Court dismissed the said Criminal Revision Petition.
the said order, the appellant filed the above appeal by way of Special Leave
We have heard Mr. Raghenth Basant, learned counsel for the
appellant and Mr. H.P. Raval, learned Additional Solicitor General for
CBI-second respondent herein.
The questions that arose for consideration in this appeal are (i.
whether the appellant established sufficient ground for discharge under Section
227 of the CrPC, and (ii. whether the Trial Judge as well as the High Court committed
any error in rejecting the claim of the appellant.
Before considering the merits of the claim of both the parties, it
is useful to refer Section 227 of the Code of Criminal Procedure, 1973, which
reads as under:- "227. Discharge.--If, upon consideration of the record of
the case and the documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for proceeding against the
accused, he shall discharge the accused and record his reasons for so
If two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the Trial Judge will be empowered
to discharge the accused and at this stage he is not to see whether the trial
will end in conviction or acquittal. Further, the words "not sufficient
ground for proceeding against the accused" clearly show that the Judge is
not a mere Post Office to frame the charge at the behest of the prosecution,
but has to exercise his judicial mind to the facts of the case in order to
determine whether a case for trial has been made out by the prosecution. 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 is really the function of the Court, after the trial
starts. At the stage of Section 227, the Judge has merely to sift the evidence in
order to find out whether or not there is sufficient ground for proceeding
against the accused. In other words, 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 so as to frame a charge against
The scope of Section 227 of the Code was considered by this Court
in the case of State of Bihar vs. Ramesh Singh (1977. 4 SCC 39, wherein this
Court observed as follows:- "... ... Strong suspicion against the accused,
if the matter remains in the region of suspicion, cannot take the place of
proof of his guilt at the conclusion of the trial. But at the initial stage 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 it is not open to
the Court to say that there is no sufficient ground for proceeding against the
accused. The presumption of the guilt of the accused which is to be drawn at
the initial stage is not in the sense of the law governing the trial of
criminal cases in France where the accused is presumed to be guilty unless the
contrary is proved. But it is only for the purpose of deciding prima facie
whether the Court should proceed with the trial or not. 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. .... "
Court has thus held that whereas strong suspicion may not take the place of the
proof at the trial stage, yet it may be sufficient for the satisfaction of the
Trial Judge in order to frame a charge against the accused.
In a subsequent decision i.e. in Union of India vs.Prafulla Kumar
Samal, (1979. 3 SCC 4, this Court after adverting to the conditions enumerated
in Section 227 of the Code and other decisions of this Court, enunciated the
following principles:- "
the Judge while considering the question of framing the charges under Section
227 of the Code 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.
the materials placed before the Court disclose grave suspicion against the
accused which has not been properly explained the Court will be fully justified
in framing a charge and proceeding with the trial.
test to determine a prima facie case would naturally depend upon the facts of
each case and it is difficult to lay down a rule of universal application. By
and large however if two views are equally possible and the Judge is satisfied
that the evidence produced before him while giving rise to some suspicion but
not grave suspicion against the accused, he will be fully within his right to
discharge the accused.
in exercising his jurisdiction under Section 227 of the Code the Judge which
under the present Code is a senior and experienced court cannot act merely as a
Post Office or a mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence 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 evidence as if he was conducting
The scope and ambit of Section 227 was again considered in
Niranjan Singh K.S. Punjabi vs. Jitendra Bhimraj Bijjaya, (1990. 4 SCC 76, in
para 6, this Court held that)
he marshal the evidence found on the record of the case and in the documents
placed before him as he would do on the conclusion of the evidence adduced by
the prosecution after the charge is framed? It is obvious that since he is at
the stage of deciding whether or not there exists sufficient grounds for
framing the charge, his enquiry must necessarily be limited to deciding if the
facts emerging from the record and documents constitute the offence with which
the accused is charged. At that stage he may sift the evidence for that limited
purpose but he is not required to marshal the evidence with a view to
separating the grain from the chaff. All that he is called upon to consider is
whether there is sufficient ground to frame the charge and for this limited
purpose he must weigh the material on record as well as the documents relied on
by the prosecution. In the State of Bihar v. Ramesh Singh this Court observed
that at the initial stage of the framing of a charge if there is a strong
suspicion-evidence 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. If the evidence which the prosecutor proposes to adduce to prove the
guilt of the accused, even if fully accepted before it is challenged by
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. In Union of India v. Prafulla Kumar Samal this Court
after considering the scope of Section 227 observed that the words `no
sufficient ground for proceeding against the accused' clearly show that the
Judge is not merely a post office to frame charge at the behest of the
prosecution but he has to exercise his judicial mind to the facts of the case
in order to determine that a case for trial has been made out by the
prosecution. In assessing this fact it is not necessary for the court to enter
into the pros and cons of the matter or into weighing and balancing of evidence
and probabilities but he may evaluate the material to find out if the facts
emerging therefrom taken at their face value establish the ingredients constituting
the said offence."
In a recent decision, in the case of Soma Chakravarty vs. State
through CBI, (2007. 5 SCC 403, this Court has held that the settled legal
position is that if on the basis of material on record the Court could form an
opinion that the accused might have committed offence it can frame the charge,
though for conviction the conclusion is required to be proved beyond reasonable
doubt that the accused has committed the offence. At the time of framing of the
charges the probative value of the material on record cannot be gone into, and
the material brought on record by the prosecution has to be accepted as true.
Before framing a charge the court must apply its judicial mind on the material
placed on record and must be satisfied that the commission of offence by the
accused was possible. Whether, in fact, the accused committed the offence, can
only be decided in the trial. Charge may although be directed to be framed when
there exists a strong suspicion but it is also trite that the Court must come
to a prima facie finding that there exist some materials therefor. Suspicion
alone, without anything more, cannot form the basis therefor or held to be
sufficient for framing charge.
We shall now apply the principles enunciated above to the present
case in order to find out whether or not the Courts below were justified in
dismissing the discharge petition filed under Section 227 of the Code.
In the earlier part of our judgment, we have adverted to the
assertion of the appellant that from 1970 till 1998, there was no allegation
that the encounter was a fake encounter. In the year 1998, reports appeared in
various newspapers in Kerala that the killing of Varghese in the year 1970 was
in a fake encounter and that senior police officers are involved in the said
fake encounter. Pursuant to the said news reports, several writ petitions were
filed by various individuals and organizations before the High Court of Kerala
with a prayer that the investigation may be transferred to Central Bureau of
Investigation (CBI.. In the said writ petition, Constable Ramachandran Nair
filed a counter affidavit dated 11.01.1999 in which he made a confession that
he had shot Naxalite Varghese on the instruction of the then Deputy
Superintendent of Police (DSP., Lakshmana. In the same counter affidavit, he
also stated that the appellant was present when the incident occurred. Based on
the assertion in the counter affidavit of Ramachandran Nair dated 11.01.1999 by
order dated 27.01.1999 learned single Judge of the High Court of Kerala passed
an order entrusting an investigation to the CBI. As said earlier, accordingly,
CBI registered an FIR on 03.03.1999 implicating Constable Ramachandran Nair,
Lakshmana and the appellant-Vijayan as accused Nos. 1, 2 and 3 respectively for
an offence under Section 302 read with Section 34 IPC.
The materials relied on by the CBI against the appellant are as
follows:- a. Confessional note dictated by Constable Ramachandran Nair to Shri
M.K. Jayadevan which was handed over to one Mr. Vasu.
161 statement of CW 6, Mr. Vasu, an erstwhile Naxalite in which he stated that
in the year 1977, Constable Ramachandran Nair confessed to him that he had shot
dead Naxalite Varghese.
161 statement of CW 21 Constable Mohd. Hanifa in which he has stated that he
was present along with Constable Ramachandran Nair while he shot dead Naxalite
161 statement of CW 31, Mr. K. Velayudhan in which he stated that Constable
Ramachandran Nair contacted him and stated that he had shot dead Naxalite
161 statement of CW 32, Mr. M.K. Jayadevan who stated that Constable
Ramachandran Nair had dictated his confessional statement to him and he
delivered the same to Mr. Vasu.
counter affidavit dated 11.01.1999 filed by Constable Ramachandran Nair before
the High Court of Kerala in O.P. No. 21142/1998.
Learned counsel for the appellant at the foremost submitted that
even if the alleged confession of Constable Ramachandran Nair is found to be
correct, in view of the fact that the said Ramchandran Nair is no more and died
long ago, in the light of Section 30 of the Indian Evidence Act, 1872 and in
the absence of joint trial, the same cannot be used against the appellant. It
is not in dispute that Constable Ramachandran Nair is not alive and there is no
question of joint trial by the prosecution against the other two accused along
with the said Ramchandran Nair.
30 of the Evidence Act, 1872 reads as:
Consideration of proved confession affecting person making it and other jointly
under trial for same offence.
more persons than one are being tried jointly for the same offence, and a
confession made by one of such persons affecting himself and some other of such
persons is proved, the Court may take into consideration such confession as
against such other person as well as against the person who makes such
as used in this section, includes the abetment of, or attempt to commit the
It was pointed
out that the confession of Constable Ramachandran Nair is inadmissible since
this confession is made by an accused which cannot be used against a co-
accused except for corroboration that too in a case where both accused are
being tried jointly for the same offence.
present case, the accused-Constable Ramachandran Nair is dead and, therefore,
the trial against him has abated, hence there is no question of joint trial of
Constable Ramachandran Nair and the appellant.
further pointed out that in view of the same the said extra judicial confession
is inadmissible by virtue of Section 30. He relied on a three-Judge Bench
decision of this Court in Mohd. Khalid vs. State of West Bengal, (2002. 7 SCC
In Hardeep Singh Sohal & others vs. State of Punjab, (2004. 11
SCC 612, this Court again held that confession cannot be admitted in evidence
against the co- accused under Section 30 of the Indian Evidence Act, 1872,
since, the accused who made the confession was not tried along with the other
Insofar as the admissibility or acceptability of the extra
judicial confession in the form of counter affidavit made by the first accused
before the High Court in the earlier proceedings are all matters to be
considered at the time of trial. Their probative value, admissibility,
reliability etc are matters for evaluation after trial. As rightly pointed out
by Mr. H.P. Raval, learned Additional Solicitor General, apart from the
confession, the statement of Vasu-CW-6, Md. Hanifa-CW-21, Mr. K. Velayudhan-
CW-31 and Mr. M.K. Jayadevan-CW-32 are very well available and cannot be
ignored lightly. We are satisfied that all the above materials require
sufficient scrutiny at the hands of the Trial Judge.
As discussed earlier, Section 227 in the new Code confers special
power on the Judge to discharge an accused at the threshold if upon
consideration of the records and documents, he find that "there is not
sufficient ground" for proceeding against the accused. In other words, his
consideration of the record and document at that stage is for the limited
purpose of ascertaining whether or not there is sufficient ground for
proceeding against the accused. If the Judge comes to a conclusion that there
is sufficient ground to proceed, he will frame a charge under Section 228, if
not, he will discharge the accused. This provision was introduced in the Code
to avoid wastage of public time which did not disclose a prima facie case and
to save the accused from avoidable harassment and expenditure.
In the case on hand, though, the learned Trial Judge has not
assigned detailed reasons for dismissing the discharge petition filed under
Section 227, it is clear from his order that after consideration of the
relevant materials charge had been framed for offence under Section 302 read
with Section 34 IPC and because of the same, he dismissed the discharge
petition. After evaluating the materials produced by the prosecution and after
considering the probability of the case, the Judge being satisfied by the existence
of sufficient grounds against the appellant and another accused framed a
charge. Whether the materials at the hands of the prosecution are sufficient or
not are matters for trial. At this stage, it cannot be claimed that there is no
sufficient ground for proceeding against the appellant and discharge is the
only remedy. Further, whether the trial will end in conviction or acquittal is
also immaterial. All these relevant aspects have been carefully considered by
the High Court and it rightly affirmed the order passed by the Trial Judge dismissing
the discharge petition filed by A3-appellant herein. We fully agree with the
It is made clear that we have not expressed anything on the merits
of the claim made by both the parties and the conclusion of the High Court as
well as this Court are confined only for disposal of the discharge petition
filed by the appellant under Section 227 of the Code. It is for the prosecution
to establish its charge and the Trial Judge is at liberty to analyze and to
arrive at an appropriate conclusion, one way or the other, in accordance with
We direct the Trial Judge to dispose of the case of the CBI
expeditiously, uninfluenced by any of the observations made above. Considering
the age of the appellant, he is permitted to file appropriate petition for
dispensing his personal appearance and it is for the Trial Court to pass an
order taking into consideration of all relevant aspects. With the above
direction, the criminal appeal is dismissed.
JANUARY 27, 2010.