TMI Blog2010 (1) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said conclusion.Appeal dismissed. - 192 OF 2010 - - - Dated:- 27-1-2010 - P. SATHASIVAM AND H.L. DATTU, JJ. JUDGMENT 1) Leave granted. 2) 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. 3) 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 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 6) By pointing out various reasons, his meritorious service and nothing whispered for a period of twenty years, the appellant filed a petition on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 him. 11) 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13) 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: Can 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15) 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. 16) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of proved confession affecting person making it and other jointly under trial for same offence. When 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 confession. [Explanation. Offence , as used in this section, includes the abetment of, or attempt to commit the offence] 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 coaccused except for corroboration that too in a case where both accused are being tried jointly for the same offence. In the 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. He 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said conclusion. 23) 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 law. 24) We direct the Trial Judge to dispose of the case of the CBI expedit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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