Held that the impugned order failed to apply judicial mind under Section 239 Cr.P.C. while deciding discharge. The High Court allowed the revision, set aside the order, and remitted the matter to the trial court to decide afresh within one month.
Impugned order dated 14.12.2023 set aside; C.M.P. remitted to Trial Court to decide afresh within one month.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA,
1946
CRL.REV.PET NO. 308 OF 2024
CRIME NO.7/2008 OF VACB, ERNAKULAM, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 14.12.2023 IN CC NO.318
OF 2016 OF COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE,
EKM AT MUVATTUPUZHA
REVISION PETITIONER/S:
N. JAYAPRASAD
AGED 67 YEARS
S/O. JOSEPH NAYAKAM, JOE NIVAS, PEROORKADA,
THIRUVANANTHAPURAM (FORMERLY ASST. EXECUTIVE
ENGINEER, MVIP DIVISION NO. 7, MUVATTUPUZHA),
PIN - 695005
BY ADVS.
DONA PAUL
ANIL SEBASTIAN PULICKEL
PAUL MATHEW
DAYANA PAUL
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, PIN - 682031
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P.No.308/2024
..2..
K.BABU, J
Crl.R.P. No.308 of 2024
------------------------------------------------Dated this the 3rd day of April, 2024
O R D E R
The challenge in this Crl.R.P. is to the order dated 14.12.2023 in an application filed by the petitioner/accused No.2 under Section 239 of Cr.P.C. seeking discharge.
2. The prosecution case is as follows:
While accused Nos.1, 2 and 3 were working as Executive Engineer, Asst. Executive Engineer and Asst. Engineer respectively in MVIP Division No.III, Muvatupuzha, they conspired and caused wrongful loss to the Government to the tune of Rs.1,65,927/-. While carrying out the work relating to the fixing of boundary stones for Karicode Distributory Canal of MVIP, they had fraudulently recorded work in the measurement books which were not actually carried out. The bill was
..3..
Crl.R.P.No.308/2024
sanctioned by accused Nos.1 and 2. The cheque was issued by accused No.1 and the same was encahsed in the name of accused No.3. Offences punishable under sanction 13(2) r/w 13(1) (d) of Prevention of Corruption Act 1988 and Sections 120B, 465, 468, 470 and 420 of the IPC and alleged against the accused.
II. Whether cognizance of the case taken against the petitioner is bad for want of sanction?”
to my notice that while answering point No.1, the learned Special Judge casually recorded that there are sufficient materials to presume the guilt of the accused as alleged by the prosecution. No consideration as required under
..4..
Crl.R.P.No.308/2024
Sections 239 and 240 of Cr.P.C. was done by the Trial Court while answering point No.1 against the petitioner.
“9.There is nothing to indicate that the legislature intended the amendment to be retrospective. Hence the argument that the amendment has retrospective effect is unsustainable. The materials on record show a prima facie case as alleged by the prosecution. There are sufficient materials on record to presume the guilt of the petitioner as alleged by the prosecution . His innocence can be declared only after a full-fledged trial.“
Crl.R.P.No.308/2024
..5..
“8.There can be no doubt that the stage of framing of the charges is an important stage and the court before framing the charge has to apply its mind judicially to the evidence or the material placed before it in order to make up its mind whether there are sufficient grounds for proceeding against the accused…………………We may, however, point out that we are in complete agreement with the principle, involved in the cases discussed above, that an order framing charges against an accused undoubtedly decides an important aspect of the trial and it is the duty of the court to apply its judicial mind to the materials and come to a clear conclusion that a prima facie case has been made out on the basis of which it would be justified in framing charges.”
Crl.R.P.No.308/2024
..6..
discussed above. The Trial Court shall dispose of the matter, as expeditiously as possible, at any rate within a period of one month from the date of production of a certified copy of this order.
The petitioner is at liberty to raise all his contentions
before the Trial Court.
Sd/-
K.BABU JUDGE
kkj
Crl.R.P.No.308/2024
..7..
APPENDIX OF CRL.REV.PET 308/2024
PETITIONER ANNEXURES
Annexure 1TRUE COPY OF THE FIR DATED 29.12.2008
IN CRIME NO. 7/2008 OF VACB CENTRAL
RANGE POLICE STATION
Annexure 2TRUE COPY OF THE FINAL REPORT DATED
23.11.2015 IN CRIME NO. 7/2008 OF VACB
CENTRAL RANGE POLICE STATION
Annexure 3TRUE COPY OF THE PETITION FILED BY THE
PETITIONER AS C.M.P. NO. 354/2023 IN
C.C. NO. 318/2016 BEFORE THE COURT OF
THE ENQUIRY COMMISSIONER AND SPECIAL
JUDGE (VIGILANCE), MUVATTUPUZHA
Annexure 4TRUE COPY OF THE OBJECTION FILED ON
BEHALF OF THE RESPONDENT IN C.M.P. NO.
354/2023 IN C.C. NO. 318/2016 (WRONGLY
SHOWN IN THE OBJECTION AS C.M.P. NO.
355/2023 IN C.C. NO. 318/2016)
2 issues framed by the court
Whether the learned Special Judge applied judicial mind to the materials available under Sections 239 and 240 of Cr.P.C. while considering the discharge application?
Whether the impugned order which recorded sufficient materials for presumed guilt without breaking the chain of reasoning is liable to be set aside?
Colour shows how this judgement treated each authority
V.C.Shukla v. State through CBIExplained¶36
_V.C.Shukla v. State through CBI_ [1980 SCC (Cri) 695] · Who else cites this
4 provisions across 3 enactments
N. JAYAPRASAD
STATE OF KERALA
K. BABU
As recorded by the court registry
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