Veeramani @ Eswar @ Sara vs State Rep. By
2021 Latest Caselaw 1722 Mad

                                                   Crl.R.C.No.1163/2020

       IN THE HIGH COURT OF JUDICATURE AT MADRAS

                         DATED: 27.01.2021

                               CORAM:

       THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                       Crl.R.C.No.1163 of 2020
                     and Crl.M.P.No.8136 of 2020

Veeramani @ Eswar @ Sara
@ Sunilkumar                              ... Petitioner/Accused

                                   Vs.


State Rep. by
Deputy Superintendent of Police
Gobichettipalayam Rural Sub-Division
Gobichettipalayam Police Station
(Crime No.363 of 2015)                   ... Respondent/Complainant



PRAYER : Criminal Revision filed u/s.397 r/w.401 Cr.P.C., to set aside

the order in Crl.M.P.No.196 of 2017 in C.C.No.2 of 2016 on the file of

Principal Sessions Judge, Erode.




1/18
                                                         Crl.R.C.No.1163/2020

       For Petitioner      : Mr.S.Kumaradevan

       For Respondent     : Mr.R.Suryaprakash
                            Govt.Advocate(Criminal Side)

                                ORDER

The respondent police registered the case in Crime No.363/2015

against the petitioner for the offence punishable under Sections 419, 447,

468, 471 and 420 IPC and sections 18, 18A, 18B, 20, 38(1), 39(1)(a)(i)

and 40(1)(c) of the Unlawful Activities (Prevention) Act, 1967

(hereinafter referred to as the ‘UAPA Act’).

2. The respondent police, after investigation, laid the charge sheet

before the Principal Sessions Judge, Erode and the learned Principal

Sessions Judge, taken cognizance of the case in C.C.No.2 of 2016. After

completing the formalities, the case came for framing of the charge. At

that time, the petitioner filed the petition u/s.227 Cr.P.C., to discharge the

petitioner from the said case in Crl.M.P.No.196 of 2017.

Crl.R.C.No.1163/2020

3. The learned Principal Sessions Judge, after enquiry, dismissed

the said petition. Challenging the said order of the learned Principal

Sessions Judge passed in Crl.M.P.No.196 of 2017 in C.C.No.2 of 2016,

dated 13.08.2020, the petitioner has filed this Criminal Revision case.

4. (a) The learned counsel for the petitioner would submit that

sanction accorded by the sanction authorities is bad in law and the

mandatory provisions of Section 45 of UAPA Act has not been followed

and after the recommendation, sanction order has to be passed within 7

days. Whereas in this case, charge sheet has not been filed for

prosecution of the accused within 7 days. Therefore, it is clear violation

of the statutory provisions.

(b) Further he would submit that purchase of SIM card has

nothing to do with the day to day activities of the petitioner.

(c) the learned trial Judge failed to consider the fact that during

the enquiry, the defacto complainant told the respondent police that the

said mobile number does not belong to him and he has not purchased the

Crl.R.C.No.1163/2020

said mobile number with his ration card. It is also the case submitted by

the respondent police that the petitioner/accused collected the ration card

belonging to the defacto complainant along with a sum of Rs.150/- from

the defacto complainant’s wife Sampal by stating that the same is

necessary for obtaining loan for the said person two years back. He came

to know that the said document was misused by the said person who had

obtained the SIM Card by impersonating him. Hence, he gave a

complaint to the respondent police. The respondent police examined 37

witnesses and seized 17 items under seizure mahazar and also obtained

confession statements from the accused. The petitioner has no

connection with the case in FIR.No.363/2015 registered by Kadathur

Police Station. The present case has been filed by the prosecution in

order to harass the petitioner for political vendetta. There is no material

produced by the prosecution to show that the mobile number concerned

is in the custody or the use of the petitioner herein. The final report does

not disclose any of the ingredients or materials to charge a person under

the UAPA Act. Even if the entire statements of the witnesses under

Crl.R.C.No.1163/2020

Section 161(3) Cr.P.C., is taken into consideration, there is no materials

to show that the petitioner is involved in the said offence. The

documents and books seized from the petitioner are not banned by any

legislation but are legally permitted and legitimate documents. The

witnesses identified the accused only through photographs and they have

not identified the petitioner and there was no identification parade and

identified the accused and so it is not admissible in evidence and the

sanction of the prosecution is not in accordance with law and the

mandatory provisions of Section 45 of UAPA Act has not been followed.

Therefore, the trial Judge failed to consider the fact and by non

application of mind, the learned trial Judge, simply dismissed the petition

filed u/s.227 Cr.P.C. All the above facts can be decided only after trial

and not at this stage. He also placed reliance on the judgment of

Honourable Supreme Court in the case of State of Gujarat Vs.Anwar

Osman Sumbhaniya and others reported in (2020) 3 Supreme Court

Cases (crl) 618. Further, he would submit that in the case of Roopesh Vs.

State of Kerala rep. by Public Prosecutor, High Court of Kerala,

Crl.R.C.No.1163/2020

Ernakulam and 3 others [Crl.Rev.Petition. No.732 of 2019] arising out

of Crime No.11 of 2014 of Valayam Police Station, Kozhikode, the High

Court of Kerala held that the Sessions Judge had no jurisdiction to take

cognizance of the offence u/s.124A of IPC without a valid sanction order

under Section 196(1) of the Cr.P.C. Challenging the said order, the State

of Kerala filed appeal before the Honourable Supreme Court. The

Honourable Supreme Court while passing interim order, held that “We

are told that discharge petitions on similar grounds and relying on the

impugned judgment have been filed inseveral other matters. As the

special leave petitions are pending before this court, the High Court/Trial

Court would not proceed with the discharge petitions/application till the

decision of these special leave petitions.”

Therefore, until it is decided by the Honourable Supreme Court,

this Revision Petition can be kept in abeyance till the disposal of the SLP.

5. (a) The learned Government Advocate (Criminal Side) would

submit that the respondent police registered the case and investigated the

matter and after completing investigation, after obtaining sanction of the

Crl.R.C.No.1163/2020

prosecution, they laid charge sheet before the Sessions Judge, Erode. The

Principal Sessions Judge, after completing formalities, applied his mind,

taken cognizance of the case and posted the matter for framing of the

charges. At this stage, the petitioner, in order to protract the trial

proceedings, filed the petition u/s.227 of the Cr.P.c., for discharging him

from the said case.

(b). The respondent filed counter and contested the matter after

hearing the same, the learned Principal Sessions Judge, dismissed the

same.

(c). The ground taken by the petitioner is not legally sustainable.

Even otherwise it can be decided necessarily after trial and not at this

stage. Prima facie, materials are available from the statement of witnesses

and also the mandatory provisions of Section 45(2) of UAPA Act duly

complied with and within 7 working days, the sanction was obtained and

filed the charge sheet and there is no delay on the part of the prosecution

and there is no violation of any of the provisions of the UAPA Act. The

citations referred to by the learned counsel for the petitioner is not

Crl.R.C.No.1163/2020

applicable to the facts of the present case. The trial Judge, after careful

perusal of the entire materials, dismissed the petition and relied on the

judgment of the Honourable Supreme Court in the case of Central

Bureau of Investigation Vs.Ashok Kumar Aggarwal reported in (2014)

14 SCC 295 and therefore, there is no merit in the revision and the

Revision is liable to be dismissed.

6. Heard and perused the records.

7. Admittedly, the case in Crime No.363 of 2015 was registered

against the petitioner for the offence u/s.419, 447, 468, 471 and 420 IPC

and Sections 18, 18A, 18B, 20, 38(1), 39(1)(a)(i) and 40(1)(c) of the

UAPA Act, 1967. The respondent police, after investigation, laid charge

sheet before the Principal Sessions Judge, Erode. The Principal Sessions

Judge, taken the charge sheet on file in C.C.No.2 of 2016. During the

pendency of the case, the petitioner approached the Principal Sessions

Judge, Erode, under Section 227 of Cr.P.C., to discharge the petitioner

from the said case.

Crl.R.C.No.1163/2020

8. The learned Principal Sessions Judge, Erode, after hearing the

case, dismissed the same. Challenging the same, the petitioner is before

this court.

9. The learned counsel for the petitioner would put forth his

arguments on two folds. One is sanction of prosecution is not in

accordance with law and as per Section 45(2) of UAPA Act, within 7

days, it ought to have been filed, whereas, in this case, they have not

complied with the said mandatory provisions. Therefore, the Principal

Sessions Judge ought not to have taken the charge sheet on file, even

otherwise ought to have discharged the petitioner by allowing the

Crl.M.P. No.196 of 2017 filed by the petitioner to discharge him from the

case.

10. Further he would submit that the SIM card and ration cards

have nothing to do with the day to day activities of the petitioner and the

person who identified the petitioner is not in person but only identified

Crl.R.C.No.1163/2020

the photo, which is not admissible in evidence and therefore, in support

of his contention, he relied on the judgment of the State of Gujarat Vs.

Anwar Osman Sumbhaniya and others (2020) 3 SCC (Crl) 618.

11. As far as the validity of sanction of prosecution is concerned,

as pointed out by the learned Sessions Judge and the decisions referred in

the impugned order viz., in the case of CBI Vs. Ashok Kumar Aggarwal

reported in (2014) 14 SCC 295, it can only be decided after the trial. In

this case, admittedly, the prosecution obtained the sanction and the

learned Government Advocate (Criminal Side) would submit that the

sanction has been obtained within 7 working days and therefore, the

question as to whether it is obtained within 7 working days is valid or not

or any inordinate delay has been occurred can be decided only at the time

of trial. Now, at this time, the prosecution has obtained the sanction for

prosecution against the petitioner and since the obtaining of sanction is

mandatory and once prosecution has also obtained it, the validity of the

sanction of prosecution has to be decided only after trial. Therefore, the

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citation referred in the case of Roopesh Vs. State of Kerala, rep. by

Public Prosecutor, High Court of Kerala, Ernakulam and others

(Crl.Rev.Pet.No.732/2019) is not applicable to the present facts of the

case. As rightly pointed out by the learned Principal Sessions Judge, in

that case, for the offence under Section 124A of IPC, no sanction order

was obtained and therefore, the petitioner/accused therein filed discharge

application. Though the Sessions Judge dismissed the same the High

Court of Kerala, allowed the Criminal Revision Petition and set aside the

order against them. The State has preferred appeal before the Honourable

Supreme Court and the Supreme Court admitted the SLP and passed the

direction that all other cases regarding the matter has to be kept in

abeyance till the disposal of the case. Whereas, in this case, a reading of

the Sanction Order, would go to show that the Principal Secretary to

Government, Home Department accorded sanction to the prosecution of

the petitioner/accused for all the offences, therefore, the contention of the

learned counsel for the petitioner is not legally sustainable. Even

according to the learned counsel for the petitioner, mandatory provisions

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of Section 45(2) of UAPA Act has not been duly complied with and

sanction has not been accorded within 7 days. But according to the

prosecution, within 7 working days, sanction of the prosecution was

obtained. A reading of the sanction order would go to show that the

sanction authority after applying its mind to the matter, accorded sanction

for all the offences. Therefore the issue regarding the validity of the

sanction obtained by the sanction authority can be decided only at the

time of trial after recording the evidence and not at the time of framing of

the charge.

12. The contention raised by the learned counsel that the

petitioner was identified only through photograph, therefore, it is not

admissible in evidence, is concerned, the citation referred to by the

learned counsel for the petitioner in the case of State of Gujarat Vs.

Anwar Osman Submbhaniya and others (2020) 3 SCC (Crl) 618, is not

applicable to the present case on hand. In that case, it was decided only

after trial. During the trial, the accused was not identified by the

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witnesses and they identified only through photograph and the

Honourable Supreme Court held that the evidence is inadmissible.

Whereas in this case, during the investigation, one of the witnesses have

spoken that one person came and collected xerox copy of the Adhaar

Card and the ration card and the prosecution has stated that the petitioner

misused that document and impersonated and obtained the SIM card and

during the investigation, while finding out the original person, to whom

the ration card belongs to, at that time, the prosecution shown the photo

of the petitioner, the witnesses identified the person who has appeared in

the photo and that he has collected the copy of the ration card and a sum

of Rs.150/- and subsequently, the accused was arrested and he gave a

confession statement before the prosecution agency and recovered the

SIM card. Under these circumstances, the scope of section 227 Cr.P.C., is

very limited. Therefore, the contentions raised by the learned counsel for

the petitioner can be decided only after trial and not at this stage.

Crl.R.C.No.1163/2020

13. At the time of argument, this court called for the CD file from

the prosecution and this court after carefully going through the entire

materials and also the charge sheet filed by the prosecution and the

documents annexed therein, finds that prima facie materials are available

to proceed further by framing charge against the petitioner and all the

points raised by the learned counsel for the petitioner can be decided

after the trial and not at this stage.

14. It is well settled proposition of law that at the stage of

deciding petition u/s.227 Cr.P.C., and 228 Cr.P.C., the court is required to

evaluate the materials and documents on record with a view to find out if

the facts emerging therefrom taken at their face value discloses the

existence of all 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 it

is opposed to common sense or the broad probabilities of the case.

Crl.R.C.No.1163/2020

15. At the time of framing of charge, 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.

16. 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 a conviction the conclusion is required to be

proved beyond reasonable doubt that the accused has committed the

offence.

17. Therefore, in this case, a careful perusal of the records show

that the petitioner is the member of the banned organization and already

several cases are pending in the States of Kerala, Karnataka and Tamil

Nadu. Admittedly, the CPI(Maoist) Party is a banned organization and

the materials reveal that the petitioner is a member of the said

organization.

Crl.R.C.No.1163/2020

18. Though the learned counsel for the petitioner would submit

that the materials collected from the petitioner are not weapons and it

does not fall under the TADA Act and so the materials are not sufficient

to fix the accused under UAPA Act, the question as to whether the

materials are admissible in evidence or not will be decided only at the

time of trial. At the time of framing of charge, this court need not conduct

roving enquiry upon the documents.

19. On careful reading of the complaint and the charge sheet filed

by the prosecuting agency and the documents annexed therein, it is seen

that the petitioner has given the confession statement more than once and

therefore, the admissibility and validity of the confession statement can

be decided only at the time of trial and not at the time of framing charge.

20. Therefore, this court feels that there is enough materials

available to frame the charge against the petitioner and all the grounds

raised by the learned counsel for the petitioner would be decided after

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trial and not at this stage. Therefore, this court is of the view that the

learned Principal Sessions Judge also discussed all the grounds raised by

the petitioner and dismissed the petition filed u/s.227 of Cr.P.C., and this

court does not find any perversity or infirmity in the order passed by the

trial Judge. Therefore, there is no merit in the Revision and the Criminal

Revision is dismissed accordingly. Consequently, connected

Miscellaneous Petition is closed.

27.01.2021 Index:Yes/No Speaking order/Non-speaking order nvsri

To

1.The Deputy Superintendent of Police Gobichettipalayam Rural Sub-Division Gobichettipalayam Police Station.

2.The Principal Sessions Judge, Erode.

Crl.R.C.No.1163/2020

P.VELMURUGAN, J

nvsri

Pre delivery order in Crl.R.C.No.1163 of 2020

27-01-2021