Shiju.S vs The Sub Inspector Of Police
2021 Latest Caselaw 150 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.1297 OF 2019

AGAINST THE ORDER/JUDGMENT IN CC 12/2013 OF JUDICIAL MAGISTRATE
                  OF FIRST CLASS -II, KOLLAM

    CRIME NO.1597/2010 OF ERAVIPURAM POLICE STATION , Kollam


REVISION PETITIONER/PETITIONER/A7 IN CC:

             SHIJU.S,
             AGED 33 YEARS
             S/O.SHAMSUDHEEN RESIDNG AT RAHMANIYA HOUSE, NEAR
             KAITHAKODU JUNCTION, NELLIMOODCHERRY, KARIKKAKAM
             VILLAGE, PATHANAPURAM TALUK, KOLLAM DISTRICT

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

RESPONDENTS/RESPONDENTS:

      1      THE SUB INSPECTOR OF POLICE,
             ERAVIPURAM POLICE STATION, KOLLAM DIST-691011

      2      STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
             KERALA, ERNAKULAM, KOCHI-31


OTHER PRESENT:

             SRI.C.S.HRITHWIK SR PP

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 05.02.2020, THE COURT ON 05.01.2021 PASSED THE FOLLOWING:
 Crl.RP 1297/2019

                                     2




                               O R D E R

Dated this the 5th day of January 2021

The petitioner is the 7th accused in CC No.12/2013 on

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

for having allegedly committed offences punishable under

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

212 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 12/10/2010 for the post of Sub

Inspector of Police. The applicant as also accused numbers 4

to 6 and 11 were candidates who appeared for the

examination. The conspiracy was hatched at the residence of

the 1st accused at Mayyanad, on the 8th, 9th and 10th and Crl.RP 1297/2019

11th of October 2010. He was working as a Junior

Superintendent in the industry department. Accused numbers

2, 3, 8, 10 and 12 agreed to obtain the question paper for the

examination fraudulently and thereafter, the 1st accused

obtained a hall ticket by deceit and forged an ID card for the

8th accused enabling him to trespass into the examination

centre at the Government Higher Secondary School,

Sankaramangalam. It was the 1st accused who allegedly stole

the hall ticket issued to witness No. 108 from his letterbox and

handed it over to the 12th accused to obtain a question paper

having 'A' alpha code, which he stealthily passed over through

the window of the examination hall to the 3rd accused.

Thereafter, A1 obtained the question paper from A3 and

collected the correct answers from the 9th accused, a lawyer

by profession on the understanding that A1 would be touting

for him. In pursuance of the conspiracy, the petitioner was

supplied answers to the questions by A1 through his mobile Crl.RP 1297/2019

phone bearing No. 9746334678 stealthily concealed in his

body and connected to an earphone. There are specific

allegation that the petitioner had participated in the conspiracy

that was hatched in the house of A1 on 11/10/2010. The

understanding was that A4 to A7 and A11 had agreed to pay

₹500,000/- each to A1 and they had also paid ₹2000/-each as

advance. A1 had allegedly distributed ₹500/- each to A3, A8

and A10 from out of the advance that he had received.

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 the petitioner had appeared for the

examination but failed to clear the test and got very low

marks. His result was not withheld and has not been barred for

any malpractice in the examination. It is stated that had he

been provided with the answers, he would have easily qualified

the test. There is also no record of a material indicating Crl.RP 1297/2019

payment of ₹ 2000/-by the petitioner to A1 as advance. There

is no manipulation of the alpha code. It is further stated that

there were only 12 candidates appearing for the exam in the

examination hall where the petitioner had appeared. Any

malpractice by the petitioner could easily have been detected

by the invigilator. The petitioner was working as H.S.A in the

Government Higher Secondary School and 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.4109/2018 to get in discharge under Section 239 of

the Cr.P.C. However the learned Magistrate dismissed the

petition and proceeded to frame charges against the applicant. Crl.RP 1297/2019

Aggrieved by that, he has approached this Court by the

revision.

4. 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.

5. 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.

6. Per contra, the learned Prosecutor argues that the

petitioner was an active member of the conspiracy. The

petitioner had received phone call on the aforesaid phone

numbwe between 8 AM and 9 AM while he was inside the Crl.RP 1297/2019

examination hall. There is evidence collected to prove

purchase of the mobile phone and the sim card which was

used for the malpractice. The prosecution has 151 witnesses

to testify apart from 146 documents and 308 material objects

to prove their case against the 16 persons arrayed as accused.

7. This is a case of malpractice in a recruitment

process conducted by the Kerala Public Service Commission for

an important post in the Police department. Such malpractices

are on the rise and the perpetrators are depriving genuine

candidates who burn midnight oil to prepare for such

examinations, of their chance to get selected for the post.

8. 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 1297/2019

"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 Crl.RP 1297/2019

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 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 Crl.RP 1297/2019

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.

9. 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.

10. 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 Crl.RP 1297/2019

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 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 Crl.RP 1297/2019

pleads guilty of the offence charged or claims to be tried."

In Kuriachan Chacko and Others v. State of Kerala [2007 (3)

KHC 278], this Court has held thus:

"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 Crl.RP 1297/2019

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 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 Crl.RP 1297/2019

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 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 Crl.RP 1297/2019

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, 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:

Crl.RP 1297/2019

"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 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 Crl.RP 1297/2019

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

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 prosecution and evaluate such materials only Crl.RP 1297/2019

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, 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 Crl.RP 1297/2019

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