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TMI Blog2010 (1) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... rders 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. 4) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Questioning the said order, the appellant filed the above appeal by way of Special Leave Petition. 7) 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. 8) 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. 9) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. .... " This 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. 12) 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:- "(1) That 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. (2) Where the materials placed before the Court disclose grave suspi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming 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 ing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 17) 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. b) The 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. c) The 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 Varghese. d) The 161 statement of CW 31, Mr. K. Velayudhan in which he stated that Constable Ramachandran Nair contacted him and stated that he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the coaccused under Section 30 of the Indian Evidence Act, 1872, since, the accused who made the confession was not tried along with the other accused. 20) 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. 21) 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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