Shiju S vs State Of Kerala
2021 Latest Caselaw 149 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE ASHOK MENON

   TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

                     Crl.Rev.Pet.No.1377 OF 2019

 AGAINST THE ORDER/JUDGMENT IN CC 4352/2016 DATED 27-11-2019 OF
         JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM

    CRIME NO.993/2010 OF ERAVIPURAM POLICE STATION , Kollam


REVISION PETITIONER/PETITIONER/A14 IN THE CC:

                SHIJU S.,
                AGED 34 YEARS
                S/O.SHAMSUDHEEN, RESIDING AT RAHMANIYA HOUSE, NEAR
                KAITHAKODU JUNCTION, NELLIMOODCHERRY, KARIKKALAM
                VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT.

                BY ADVS.
                SRI.M.RAJENDRAN NAIR (THONNALLOOR)
                SRI.A.D.SHAJAN
                SRI.SREEJITH R.NAIR

RESPONDENT/S:

                STATE OF KERALA,
                REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
                KERALA, ERNAKULAM-682 031.


OTHER PRESENT:

                SRI.C.S.HRITHWIK SR PP

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 5.2.2020, THE COURT ON 05.01.2021 PASSED THE FOLLOWING:
 Crl.RP 1377/2019

                                   2




                            O R D E R

Dated this the 5th day of January 2021

The petitioner is the 14th accused in CC No.4352/2016 on

the files of the Judicial First Class Magistrate Court-II, Kollam

for having allegedly committed offences punishable under

Sections 417, 419, 420, 448, 468, 471, 379, 120 B and 201

read with Section 34 of the I.P.C and under Section 66 read

with Section 43 (a) and (g) of the I.T. Act.

2. The prosecution case, in brief, is that the petitioner

hatched a conspiracy with the remaining accused to commit

malpractices in the examination conducted by the Kerala Public

Service Commission on 30/10/2010 for the post of Kerala

State Beverages Corporation. The accused numbers 6, 7, 9, 10,

13, 15 ,19 and 20 were candidates who appeared for the

examination. A conspiracy was hatched on the 14th of October

2010 by accused numbers 2, 4,5, 8, 11,12,13 and 16 to obtain

the question paper pertaining to the test deceitfully. A13 Crl.RP 1377/2019

obtained two Hall tickets, and handed them over to A1 and A4.

A1 was working as a Junior Superintendent in the industry

department. A4 obtained a forged identification certificate,

impersonated as A13 and trespassed into the examination hall

at A.K.M. High School and obtained a question paper having 'C'

alpha code and handed over the same to A3, who accompanied

by A2 met A1 at Soorya Bar, Kottiyamand handed over the

question paper to him. Thereafter, the 1st accused together

with A2, A5, A11 and the petitioner collected the correct

answers using internet and communicated the answers to the

candidates through the mobile phones concealed by the

candidates in their bodies and wrote the examinations. The

petitioner was the one who suppied the answers using his

mobile phone No.9447584177 to A13 who appeared for the

exam in Room No.5 of Chathannur Government V.H.S.S in

pursuance of the conspiracy. There are specific allegations that

the petitioner had participated in the conspiracy that was

hatched.

Crl.RP 1377/2019

3. The petitioner states that apart from the allegations

made in the final report against him, there is no material

produced by the prosecution to prove his complicity. It is

further stated that there were only 13 candidates appearing for

the exam in the examination hall where A13 had appeared.

Any malpractice by the petitioner could easily have been

detected by the invigilator.

4. The petitioner was working as H.S.A in the

Government Higher Secondary School, Anchal West. Because of

the pendency of this case against the petitioner his probation

in the post of H.S.A is yet to be declared. The petitioner is also

eligible to apply for the post of lecturer in college. But because

of the pendency of this case he has not been able to do that.

There is no material to show that the petitioner had forged any

document. The petitioner had filed CMP No.3887/2018 to get

in discharge under Section 239 of the Cr.P.C. However the

learned Magistrate dismissed the petition and proceeded to Crl.RP 1377/2019

frame charges against the applicant. Aggrieved by that, he has

approached this Court by the revision.

5. Heard the learned counsel Shri M.Rajendra Nair

appearing for the petitioner and Shri C.S.Hrithiwik, the Senior

Public Prosecutor for the State. Records perused.

6. It is the argument of the learned counsel Shri

Rajendra Nair that even if the prosecution case as alleged is to

be believed, at the most the petitioner could only be held for

malpractices and not for an offence of cheating of forgery and

theft trespass etc. as alleged by the prosecution. Hence, the

learned counsel submits that the trial Court went wrong in not

discharging the petitioner under Section 239 of the Cr.P.C.

7. Per contra, the learned prosecutor argues that the

petitioner was an active member of the conspiracy. There is

evidence collected by the prosecution to prove purchase of the

mobile phone and the sim card which was used for the

malpractice. Charge witnesses 24 and 25, who are colleagues Crl.RP 1377/2019

of the petitioner, have given statements indicating the

involvement of the petitioner. There is evidence regarding the

call details from the phones and the details regarding the

tower locations of the uses of the phones. The prosecution

has 95 witnesses to testify apart from 272 documents and 22

material objects to prove their case against the 21 persons

arrayed as accused.

8. This is a case of malpractice in a recruitment

process conducted by the Kerala Public Service Commission for

a post in a Government Department. Such malpractices are on

the rise and the perpetrators are depriving genuine candidates

who burned midnight oil to prepare for such examinations, of

their chance to get selected for the post.

9. In the case of All India Railway Recruitment Board

Vs. K. Shyam Sundar [2010(6) SCC 614], the Hon'ble Supreme

Court while dealing with the issue of leakage of question

paper, observed thus:

Crl.RP 1377/2019

"50. We are also of the view that the High Court was in error in holding that the materials available relating to leakage of question papers was limited and had no reasonable nexus to the alleged large scale irregularity. Even a minute leakage of question paper would be sufficient to besmirch the written test and to go for a re-test so as to achieve the ultimate object of fair selection."

In the case of Nidhi Kaim Vs. State of Madhya Pradesh and Ors.

[2016(7) SCC 615], taking note of gradual rise of malpractices,

academic fraud and cheating in examination, the Hon'ble Apex

Court of the land, observed thus:

"134. Examination malpractices, academic fraud or cheating in the examination is as old as the examination itself. Study made by the educationist has revealed that these malpractices are gradually on the rise across the world and has caused a threat to public trust in reliability and credibility to the system as a whole. These (CW-4521/2018) malpractices occur within and outside the examination halls and are perpetrated by the candidates, staff and other external agencies Crl.RP 1377/2019

before, during and after the examination. Various kinds of strategies are innovated and then applied to enable the candidate to clear the examination any how. It has, therefore, destroyed the piousness of the examination. With a view to prohibit such activities, State of A.P. had enacted a legislation but it was found inadequate to control such activities."

Cheating is defined under S.415 of the Indian Penal Code as

whoever fraudulently or dishonestly deceives a person in order

to induce that person to deliver a property to any person or to

consent to retain any property. If a person intentionally

induces a person to do or omit to do any act which he would

not have done if he was not deceived to do so and the act has

caused harm to that person in body, mind, reputation or

property, then the person who fraudulently, dishonestly or

intentionally induced the other person is said to cheat. Any

dishonest concealment of facts which can deceive a person to

do an act which he would not have done otherwise is also

cheating within the meaning of this Section. Crl.RP 1377/2019

10. Cheating is considered as a criminal offence under

the Indian Penal Code. It is done in order to gain profit or an

advantage from another person by using some deceitful

means. The person who deceives another knows for the fact

that it would place the other person in an unfair situation.

Cheating as an offence can be made punishable under S.420 of

the IPC.

11. In a warrant case instituted on a police report, the

Magistrate is obliged to consider the police report and the

documents sent with it under S.173 of the CrPC and come to a

conclusion as to whether the charge against the accused is

groundless. In that event, the accused has to be discharged. In

all other cases it will have to be held that there is ground to

presume that the accused has committed the offence and

charges must be framed under S.240 of the CrPC. I extract

below S.239 and S.240 of the CrPC:

"239. When accused shall be discharged. If, upon considering the police report and the Crl.RP 1377/2019

documents sent with it under S.173 and making such examination, if any,of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the ccused, and record his reasons for so doing.

240. Framing of charge.

(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."

12. In Kuriachan Chacko and Others v. State of Kerala

[2007 (3) KHC 278], this Court has held thus: Crl.RP 1377/2019

"15. A careful consideration of S.227 and S.228,S.239 and S.240 and S.245(1) and S.246 of the CrPC must show that in all these three instances if the cases do not fall under the former of the pairs it has got to fall within the latter of the pairs. Though loosely the requisite satisfaction is referred to as a prima facie case, to me, it appears that it would be idle to assume that the quality of consideration of the materials at these stages are identical in all respects. When it comes to a police charge, discharge under S.239 of the CrPC is possible only if the Court entertains the satisfaction that the charge is groundless. This is evidently a shade different from the satisfaction which must be entertained under S.245(1) of the CrPC. Both would come under the generic description of a prima facie case. The legislature appears to have realistically taken note of the fact that a police charge comes before the Court after it is vetted by the instrumentality of the police which is an indispensable part of the criminal justice delivery system.

16. To sum up, I do note that a discharge Crl.RP 1377/2019

under S.239 of the CrPC 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 S.239/240 of the CrPC."

In Union of India v. Prafulla Kumar Samal and Another [1979

(3) SCC 4], the Hon'ble Supreme Court was examining a similar

question in the context of S.227 of the Code of Criminal

Procedure. The legal position was summed up as under:

"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :

(1) That the Judge while considering the question of framing the charges under S.227 of the Code has the undoubted power to sift Crl.RP 1377/2019

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 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 S.227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth - piece of the prosecution, but has to consider the broad probabilities of the case, Crl.RP 1377/2019

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."

The Hon'ble Supreme Court has in State by the Inspector of

Police, Chennai v. S. Selvi and Another [2017 KHC 6899 : AIR

2018 SC 81], considered the scope of S.227 and S.239

Cr.P.C.and observed thus:

"If on the basis of the material on record, the Court would form prima facie opinion that the accused might have committed offence, it can frame charge, though for conviction it is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of charges, the probative value of the material on record has to be gone into and the Court is not expected to go deep into the matter and hold that the materials would not warrant conviction. The Court is required to evaluate Crl.RP 1377/2019

the material on record at the stage of S.227 or 239 of the Code, as the case may be, only with a view to find out if the facts emerging therefrom taken at the face value discloses the existence of all the ingredients constituting the alleged offence. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with the presumption that material brought on record by the prosecution are true and evaluate such material with a view to find out whether the facts emerging therefrom taken at their face value disclose existence of the ingredients of the offence."

If on the basis of the material on record, the Court could

prima facie form an opinion that the accused might have

committed offence, it can frame charge, though for conviction

it is required to be proved beyond reasonable doubt that the

accused has committed the offence. At the time of framing of

charges, the probative value of the material on record has to

be gone into and the Court is not expected to delve deep into

the accusation and hold that the materials would not warrant a Crl.RP 1377/2019

conviction. The Court is only required to evaluate the material

on record at the stage of S.239 of the Code, only with a view

to find out whether the facts emerging therefrom taken at the

face value discloses the existence of all the ingredients

constituting the alleged offence. It is trite that at the stage of

consideration of an application for discharge, the Court has to

proceed with the presumption that materials brought on

record by the prosecution are true and evaluate such materials

only with a view to find out whether the facts emerging

therefrom taken at their face value would disclose the

existence of the ingredients of the offence. It has to be

considered whether those materials would sustain the

accusation made against the accused. The Court need not, at

this stage be convinced about the sufficiency of the evidence

to enter a finding of conviction. Elaborate arguments on

scanning and scrutinising the evidence and materials

produced by the prosecution is not contemplated while

considering the question of discharge. I would, therefore, Crl.RP 1377/2019

refrain from recording any positive conclusion on the

materials as it may affect the trial. Suffice it to say that a

bare perusal of the judgment of the trial Court would indicate

that the Court had not exceeded its jurisdiction in declining to

discharge the petitioner. This Court is not sitting in appeal

against an order of conviction. The nature of the allegations

made against the revision petitioner appears to be much too

specific to be ignored at least at the stage of framing of

charges. The Court below, therefore, did not commit any

mistake in refusing a discharge. Hence, the Revision is

dismissed.

Sd/-

ASHOK MENON

JUDGE

jg