REPORTABLE
IN THE 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)
JUDGMENT
P. Sathasivam, J.
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
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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 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.
2
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 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
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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.
5) 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.
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
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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
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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.
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
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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 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 doing."
10) 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
7
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 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
8
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. .... "
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 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.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
9
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.
(4) That 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 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 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
10
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."
14) 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
11
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.
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
12
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
13
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
14
contacted him and stated that he had shot dead Naxalite
Varghese.
e) The 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.
f) The counter affidavit dated 11.01.1999 filed by
Constable Ramachandran Nair before the High Court of
Kerala in O.P. No. 21142/1998.
18) 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
15
other two accused along with the said Ramchandran Nair.
Section 30 of the Evidence Act, 1872 reads as:
"30. Consideration 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 co-
accused 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
16
Section 30. He relied on a three-Judge Bench decision of
this Court in Mohd. Khalid vs. State of West Bengal,
(2002) 7 SCC 334.
19) 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 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
17
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 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.
18
22) 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
19
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 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.
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..........................................J.
(P. SATHASIVAM)
..........................................J.
(H.L. DATTU)
NEW DELHI;
JANUARY 27, 2010.
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