Kerala High Court
N. Jayaprasad vs State Of Kerala on 3 April, 2024
Author: K.Babu
Bench: K. Babu
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
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K.BABU, J
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Crl.R.P. No.308 of 2024
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Dated this the 3rd day of April, 2024
ORDER
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
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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.
3. The petitioner pleaded before the Court that he
is innocent of allegations and there are no sufficient
materials to frame charges against him. The learned
Special Judge raised two points for consideration:-
"I. Whether there are grounds for presuming the guilt of
the petitioner as alleged by the prosecution?
II. Whether cognizance of the case taken against the
petitioner is bad for want of sanction?"
4. The learned counsel for the petitioner brought
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
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Sections 239 and 240 of Cr.P.C. was done by the Trial
Court while answering point No.1 against the petitioner.
5. The relevant portion of the impugned order is
extracted below:-
"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."
6. While considering the application seeking
discharge of an accused on the ground that there are no
materials to presume the guilt of the accused, the Court
has bounden duty to apply its judicial mind to the
available materials. It is profitable to extract the
observation of the Supreme Court in V.C.Shukla v. State
through CBI [1980 SCC (Cri) 695]. In V.C.Shukla, the
Apex Court held thus:-
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"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."
7. Having gone through the order impugned, this
Court is of the view that the learned Special Judge has
not considered the application within the meaning of
Sections 239 and 240 of the Cr.P.C. Therefore, the
impugned order is liable to be set aside.
8. Resultantly, the Revision Petition is allowed.
The order dated 14.12.2023 is set aside. C.M.P.No.354 of
2023 in C.C.No.318 of 2016 is remitted back to the Trial
Court to consider afresh in the light of the principles
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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
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APPENDIX OF CRL.REV.PET 308/2024
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE FIR DATED 29.12.2008
IN CRIME NO. 7/2008 OF VACB CENTRAL
RANGE POLICE STATION
Annexure 2 TRUE COPY OF THE FINAL REPORT DATED
23.11.2015 IN CRIME NO. 7/2008 OF VACB
CENTRAL RANGE POLICE STATION
Annexure 3 TRUE 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 4 TRUE 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)
