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2024 DIGILAW 445 (KER)

Laiju S/o Gopi v. State of Kerala

2024-04-08

A.BADHARUDEEN

body2024
ORDER : 1. This Criminal Revision Petition has been filed, challenging the order in Crl. M.P. No. 724/2021 in S.C. No. 460/2018, dated 25.3.2021 on the files of the Special Court for the POCSO offences, Alappuzha. 2. Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor. 3. In this matter, the discharge petition filed by the 3rd accused was dismissed, as per Annexure B order, impugned herein and on perusal of the order, the same appears to be a cryptic and non-speaking order. The order is extracted as under: “Heard the Counsel for A3. On perusal of case records it appears that there are sufficient grounds for proceeding against the petitioner/3rd accused in this case. As no grounds were made out to discharge the accused, under section 227 of Cr.P.C. a charge is to be framed.” 4. In Crl. R.P. No. 666 of 2023, while considering a similar case, in paragraph No. 5, this Court held that, while passing an order of discharge by allowing or dismissing the same, the Courts must have to state reasons for passing such orders and an order without recording reasons in the form of cryptic and non-speaking nature, would not sustain under the law. 5. In the decision in Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey and Others, 2022 KHC 6734, in paragraph No. 23, Apex Court dealt with the essentials of framing charges under Section 227 of Cr.P.C. held thus: “In Sajjan Kumar vs. CBI, (2010) KHC 4691: (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371 : 2010 (2) KLD 603 : 2010 (10) SCALE 22 : 2010 (95) AAIC 115 : 2010 (3) SCC (Cri) 1397, this Court had an occasion to consider the scope of Sections 227 and 228 Cr.P.C. The principles which emerged therefrom have been taken note of in Para 21 as under: (SCC pp. 376-377) “21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC 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 test to determine prima facie case would depend upon the facts of each case. The test to determine prima facie case would depend upon the facts of each case. (ii) 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. (iii) The 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the 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. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but 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. (vi) At the stage of S.227 and S.228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) 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.” 6. Thus, it is the well settled law that order allowing or refusing plea of discharge should be a speaking order. Thus, it is the well settled law that order allowing or refusing plea of discharge should be a speaking order. Cryptic, non-speaking and evasive order should not be passed without ascribing reasons for the finding of either allowing or dismissing the plea. 7. Since the order is cryptic and non-speaking, Crl. M.P. No. 724/2021 in S.C. No. 460/2018, is remanded back to the Special Court, for hearing and disposal afresh, by passing reasoned and speaking order, within a period of two weeks from the date of receipt of a copy of this order.