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2015 DIGILAW 603 (KER)

Muhammed Aslam v. State of Kerala

2015-06-04

K.HARILAL

body2015
ORDER K. Harilal, J. 1. The revision petitioner herein stands arrayed as the 1st accused in CC No. 128 of 2010 on the files of the Chief Judicial Magistrate's Court, Thrissur, allegedly for having committed the offences punishable under Sections 420, 423, 465, 466, 467, 468, 471, 472, 473,474,476, 120B read with Section 34 of the Indian Penal Code. 2. The allegation in the prosecution case is that the accused persons 3 to 7, pursuant to the conspiracy hatched between them, forged documents pertaining to an item of property comprised in Survey No. 374/1 of Valad Village in the name of the 3rd accused and further forged a special power of attorney in favour of the petitioner herein and that the 2nd accused produced those documents before the Kerala State Co-operative Bank, Thrissur Branch, and availed a loan of ` 2.9 Crores and thereby cheated the Bank and thus committed the aforesaid offences. 3. The revision petitioner herein filed Crl. MP No. 8335 of 2012 under Section 239 of the Cr.P.C. seeking premature termination of the proceedings against him by way of discharge on the ground that the charge against him is groundless. After hearing the petitioner, the Court below dismissed the petition with a finding that though no offence had been made out against the petitioner for the offence alleged against him by the police in the final report, he can be prosecuted for the offence under Section 202 of the IPC for his omission to give information in respect of the offence to the authorities. The legality and correctness of the findings whereby the Court below proceeded against the petitioner for the offence under Section 202 of the IPC, after discharging him of the offences for which charge was filed against him in the police report, are under challenge in this revision petition. 4. Heard Shri P. Vijayabhanu, the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner advanced arguments assailing the roving enquiry made by the Court below against the petitioner in the exercise of jurisdiction under Section 239 of the Cr.P.C. to find out whether any offence, other than the offence alleged by the prosecution, has been committed by the petitioner. 5. The learned counsel for the petitioner advanced arguments assailing the roving enquiry made by the Court below against the petitioner in the exercise of jurisdiction under Section 239 of the Cr.P.C. to find out whether any offence, other than the offence alleged by the prosecution, has been committed by the petitioner. According to the learned counsel, the Magistrate has no power to make such an enquiry, on an application under Section 239 of the Cr.P.C. seeking discharge, after accepting the final report filed by the police as such, and that would go beyond his jurisdiction. 6. The learned Public Prosecutor advanced arguments to justify the findings, whereby the Special Court substituted offence under Section 202 IPC against the accused after arriving at a finding that the offence for which charge-sheet has been filed, is not made out against the accused. According to the learned Public Prosecutor, the Magistrate/Special Judge has jurisdiction and power to do so under Section 239 of the Cr.P.C. 7. The first question to be considered is, whether the Magistrate/Special Judge has the jurisdiction and power to implicate the accused with a fresh offence for which any allegation or charge was made in the final police report, instead of the offence for which charge was filed by the police and found groundless, on an independent and meticulous roving enquiry under Section 239 of the Cr.P.C. 8. On a careful analysis of the statutory mandate under Section 239 of the Cr.P.C., it is seen that the duty cast upon the Magistrate/Special Judge is that, upon considering the police report and the documents sent with it under Section 173 of the Cr.P.C. and making such an examination, if any, of the accused, and after giving the prosecution and the accused an opportunity of being heard, if the Magistrate considers that the 'charge' against the accused to be groundless, he shall discharge the accused. 9. The scope and extent of the expression 'consideration' employed in Section 239 of the Cr.P.C. has been well determined by this Court and the Supreme Court in various decisions, as given below. 10. In the decision in Kuriachan Chacko and Others etc. v. State of Kerala 2007 (3) KHC 278 : 2007 Cri LJ 4458 : 2007 (2) KLD 48 : ILR 2007 (3) Ker. 316 : 2007 (2) KLJ 778 : 2007 (3) KLT 843 , this Court held as follows: "16. 10. In the decision in Kuriachan Chacko and Others etc. v. State of Kerala 2007 (3) KHC 278 : 2007 Cri LJ 4458 : 2007 (2) KLD 48 : ILR 2007 (3) Ker. 316 : 2007 (2) KLJ 778 : 2007 (3) KLT 843 , this Court held as follows: "16. To sum up, I do note that a discharge under Section 239 of the Cr.P.C. is possible only when the Court entertains the satisfaction that the allegations/charge against the accused is groundless. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage. The exercise of weighing materials in golden scales is certainly not to be undertaken at this stage and has to be postponed to a later date. Is the allegation/charge groundless? That alone need be considered at the stage of Section 239/240 of the Cr.P.C." 11. In the decision in Hem Chand v. State of Jharkhand 2008 KHC 4413 : 2008 (3) SCALE 598 : (2008) 5 SCC 113 : AIR 2008 SC 1903 : (2008) 2 SCC (Cri) 537, the Hon'ble Supreme Court held as follows: "13. The Court at the stage of framing charge exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any. 14. In State of M.P. v. Mohanlal Soni,: (2000) 6 SCC 338 , this Court has held; "7. The crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. It was furthermore observed; xxxx xxxx xxxx "....If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. It was furthermore observed; xxxx xxxx xxxx "....If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can be quashed." 12. In the decision in Central Bureau of Investigation v. K. Narayana Rao 2012 KHC 4527 : 2012 Cri. LJ 4610 : 2012 (9) SCALE 228 : 2012 (4) KLT 92 : (2012) 9 SCC 512 , the Hon'ble Supreme Court held as follows: "19. It is clear that 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 only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution 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." 13. The question to be considered on a petition under Section 239 of the Cr.P.C. is, is the charge against the accused groundless? i.e., If the evidence which the prosecution 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. Obviously, the 'charge' refers to in Section 239 of the Cr.P.C. is the allegations/the offences for which the accused is charge-sheeted by the police in the final report. Obviously, the 'charge' refers to in Section 239 of the Cr.P.C. is the allegations/the offences for which the accused is charge-sheeted by the police in the final report. No detailed evaluation of materials or meticulous consideration of the evidence or possible defence need be undertaken at this stage, and has to be postponed to a later stage, during the course of trial. So, the documents sent along with the final report can be considered to the extent of consideration, whether the records and the documents sent along with final police report disclose the charge put up by the police in the final police report? The Magistrate has power to sift and weigh the police report and documents for the limited purpose of finding out whether or not a prima facie case against the accused has been made out as alleged by the prosecution. More over, a strong suspicion, which leads the Court to think that there is ground for presuming that the accused has committed the offence as alleged by the prosecution is also required at this stage. The above provision in the Cr.P.C. does not envisage an independent, open or meticulous and roving enquiry as to find out whether the documents sent along with the final report disclose any offence other than the offence alleged and charge-sheeted by the police. So, at this stage, on a petition under Section 239 of the Cr.P.C., seeking discharge, the Magistrate/Special Judge has no jurisdiction and power to make an independent and roving enquiry and to implicate the accused with a fresh offence/charge for which no allegation was made by the police, instead of the allegations for which the charge-sheet was filed by the police and found groundless in such an indiscreet enquiry. 14. The Magistrate/Special Judge cannot step into the shoes of an Investigating Officer and it is for the Investigating Officer to bring forth proper police charge before the Court on the basis of the complicity of the accused revealed from the investigation and the role of the Magistrate/Special Judge at this stage is to examine whether the final report and documents sent along with it would disclose the offence for which the accused has been charge-sheeted by the police before him. In the exercise of jurisdiction under Section 239 of the Cr.P.C., the Magistrate/Special Judge is not empowered to substitute his own allegations that would constitute fresh offence instead of the allegations in the police report that constituted the offences which were found groundless. 15. At this juncture, it is to be remembered that the Magistrate/Special Judge has power to alter the charge under Section 216 of the Cr.P.C. and to proceed against the person not being the accused under Section 319 of the Cr.P.C., where it appears from the evidence that such person has committed any offence, but such powers can be exercised on a later stage on the basis of the evidence brought out in the course of enquiry or trial. Needless to say, the Magistrate/Special Judge has the power to alter or add the charges so as to make it in accordance with the allegations made by the police at any time before the pronouncement of judgment. But this power cannot be exercised on a petition for discharge under Section 239 of the Cr.P.C. as such exercise of power would exceed the limits of power conferred to the Magistrate/Special Judge under Section 239 of the Cr.P.C. 16. Going by the impugned order, it is seen that after examination of the records produced along with the report under Section 173 of Cr.P.C., the Court below observed that the statement of witnesses and other documents forwarded along with the final report by the police absolutely failed to inculpate the petitioner/1st accused with any of the offences alleged against him. In that view of the matter, the Special Court is justified in discharging the petitioner from the offences charged against him by the police, but, further, the Special Court has exceeded its jurisdiction by implicating the 1st accused/revision petitioner with the offence under Section 202 of the IPC, for which no allegation was filed by the police. 17. The next question to be considered is, can the accused be implicated with the commission of an offence under Section 202 of the IPC for which no charge has been filed by the police? Broadly, the question is, can the accused who is alleged to have committed the principal offence be implicated with the offence under Section 202 IPC? 17. The next question to be considered is, can the accused be implicated with the commission of an offence under Section 202 of the IPC for which no charge has been filed by the police? Broadly, the question is, can the accused who is alleged to have committed the principal offence be implicated with the offence under Section 202 IPC? The ingredients constituting the offence under Section 202 of the IPC are: (1) The accused must have knowledge or reason to believe that some offence had been committed. (2) The accused had intentionally omitted to give information in respect of that offence. (3) The accused was legally bound to give that information. No conviction under Section 202 of the IPC can be sustained, unless the Court is satisfied with all the three elements which constitute the offence. Coming to the third element, the question is, was the accused legally bound to give information to any authority or any person as regards the commission of the offence which he had done. There is no law which cast duty on a person who has committed the offence to give intimation, which would implicate himself to an offence. Therefore, the accused, who have allegedly committed the principal offence, can never be implicated with an offence under Section 202 of the IPC. The above view is supported by the decision of the Apex Court in Harish Chandra Sing Sajjansing Rathod and Another v. The State of Gujarat 1979 KHC 710 : AIR 1979 SC 1232 : (1979) 4 SCC 502 : 1980 SCC (Cri) 110 : 1979 Cri. LJ 1025: 1979 (20) GLR 829 that 'whoever' occurring at the opening part of Section 202 of the Indian Penal Code refers to a person other than the offender and has no application to the person who is alleged to have committed the principal offence. Thus, the Investigating Officer is justified in not implicating the petitioner with the offence under Section 202 of the IPC, as the facts constituting all the above three elements are not disclosed in the investigation. Thus, the Investigating Officer is justified in not implicating the petitioner with the offence under Section 202 of the IPC, as the facts constituting all the above three elements are not disclosed in the investigation. Since the petitioner was also arrayed as the accused who has allegedly committed the principal offence, the Investigating Officer is justified in not implicating the revision petitioner/Ist accused as the offence under Section 202 of the IPC as he was not legally bound to give information as regards the offence which is alleged to have committed by him. But the learned Special Judge, after discharging the petitioner from the principal offence, for which the police charge-sheeted him, implicated him to the offence under Section 202 of the IPC on a mere assumption only and retained him in the array of the accused. Such substitution of charge for retaining the accused in the array of the accused while considering an application under Section 239 of the Cr.P.C. is impermissible under law. 18. In this analysis, I find that the impugned order under challenge is illegal and unsustainable under law. The revision petitioner will stand discharged of all the offences including Section 202 of the IPC. Needless to say, this order will not stand in the way of exercising jurisdiction and power under Section 319 of the Cr.P.C., if circumstances warrant. In the result, this criminal revision petition is allowed.