REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    192       OF 2010 (Arising out of S.L.P. (Crl.) No. 4708 of 2007)

P. Vijayan                                       .... Appellant (s)

Versus

State of Kerala & Anr.              .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1)  Leave granted.

2)  This appeal is directed against the judgment and order  

of  the  High  Court  of  Kerala  at  Ernakulam  dated  

04.07.2007 passed in Criminal Revision Petition No. 2455  

of 2007, in and by which, the learned single Judge, after  

finding no ground to interfere with the order passed by the  

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Trial  Judge  dismissing  discharge  petition  filed  by  the  

appellant herein, refused to interfere in his revision.

3) According to the appellant, he is a retired IPS officer  

aged  about  85  years.   He  enjoyed  a  considerable  

reputation  as  an  IPS  officer  and  had  retired  as  the  

Director General  of  Police,  Kerala.   In the course of his  

tenure as a senior police officer, he controlled the Naxalite  

militancy which was rampant in Kerala in the 1970s.  In  

the  1970s,  Naxalites  under  the  banner  of  CPI(ML),  a  

militant organization, had taken up the cause of the poor  

through  armed  appraisal  and  violence.   The  said  

organization  committed  various  brutal  murders  and  

dacoities  including  attacking  police  stations  and  

murdering  innocent  policemen.   The  State  Government  

which was in power at the relevant time took serious note  

of the said atrocities committed by the cadres of CPI (ML)  

and took a decision to put an end to the said atrocities.

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4)   It  is  his  further  case  that  Naxalite  Varghese  was  a  

prominent leader of the CPI (ML) in Kerala during 1970s.  

He  was  an  accused  in  cases  relating  to  murder  of  

landlords as well as attack on policemen.  Since, he was  

wanted in many grave criminal offences, he was hiding. A  

special team consisting members of the Kerala Police as  

well as CRPF was formed to nab Naxalite Varghese.  On  

18.02.1970,  the  police  received  a  tip  off  that  he  was  

present in the hut of one Shivaraman Nair and based on  

the said information, the special team rushed to the spot  

and  broke  open  the  door  of  the  said  hut  and  arrested  

Naxalite Varghese.  However, while he was being taken to  

the Mananthavadi police station in a police jeep, he tried  

to escape and attacked the policemen resulting in clash  

between the police party and Naxalite Varghese.  During  

the said clash, in order to prevent Naxalite Varghese from  

escaping, the police had to fire and in the shoot out he  

was  killed.   The  capture  of  Naxalite  Varghese  was  

highlighted as one of the achievements of the Kerala Police  

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at that time and the police personnel involved in the said  

operation  were  given  out  of  turn  promotions  and  

increments in appreciation of being part of the team.  The  

appellant  had  also  received  various  medals  while  in  

service  for  his  role  in tackling the naxalite  militancy in  

Kerala.

5) It was further pointed out that from 1970 till 1998,  

there was no allegation that the said encounter was a fake  

encounter.   Only in the year 1998, reports appeared in  

various newspapers in Kerala that the killing of Varghese  

in the year 1970 was in a fake encounter and that senior  

police  officers  are  involved  in  the  said  fake  encounter.  

Pursuant to the said news reports, several writ petitions  

were filed by various individuals and organizations before  

the  High  Court  of  Kerala  with  a  prayer  that  the  

investigation  may  be  transferred  to  Central  Bureau  of  

Investigation (CBI).   In the said writ  petition,  Constable  

Ramachandran  Nair  filed  a  counter  affidavit  dated  

11.01.1999 in which he made a confession that he had  

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shot  Naxalite  Varghese  on  the  instruction  of  the  then  

Deputy Superintendent of Police (DSP), Lakshmana.  He  

also  stated  that  the  appellant  was  present  when  the  

incident  occurred.   By order  dated  27.01.1999,  learned  

single Judge of the High Court of Kerala passed an order  

directing the CBI to register an FIR on the facts disclosed  

in the counter affidavit filed by Constable Ramachandran  

Nair.   Accordingly,  the  CBI  registered  an  FIR  on  

03.03.1999 in which Constable Ramachandran Nair was  

named as accused No. 1, Mr. Lakshmana was named as  

accused No. 2 and Mr. P. Vijayan, the appellant herein,  

was named as accused No. 3 for an offence under Section  

302 IPC read with Section 34 IPC.  After investigation, the  

CBI filed a charge-sheet before the Special  Judge (CBI),  

Ernakulam  on  11.12.2002  wherein  all  the  above  

mentioned persons were named as A1 to A3 respectively  

for an offence under Sections 302 and 34 IPC.   

6)   By  pointing  out  various  reasons,  his  meritorious  

service  and  nothing  whispered  for  a  period  of  twenty  

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years, the appellant filed a petition on 17.05.2007 under  

Section 227 of the Code of Criminal Procedure (in short  

“CrPC”) for discharge.  The learned Trial Judge by order  

dated 08.06.2007, dismissed the said petition and passed  

an order for framing charge for offence under Sections 302  

and  34  IPC.   Aggrieved  by  the  aforesaid  order,  the  

appellant  filed  a  Criminal  Revision Petition No.  2455 of  

2007 before the High Court of Kerala.  By an impugned  

order dated 04.07.2007, learned single Judge of the High  

Court  dismissed  the  said  Criminal  Revision  Petition.  

Questioning the said order, the appellant filed the above  

appeal by way of Special Leave Petition.

7)  We have heard Mr. Raghenth Basant, learned counsel  

for the appellant and Mr. H.P. Raval, learned Additional  

Solicitor General for CBI-second respondent herein.

8)  The  questions  that  arose  for  consideration  in  this  

appeal are (i) whether the appellant established sufficient  

ground for discharge under Section 227 of the CrPC, and  

(ii)  whether  the  Trial  Judge  as  well  as  the  High  Court  

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committed  any  error  in  rejecting  the  claim  of  the  

appellant.

9)  Before considering the merits of the claim of both the  

parties,  it  is  useful  to  refer  Section 227 of  the  Code of  

Criminal Procedure, 1973, which reads as under:-   

“227. Discharge.—If, upon consideration of the record of the  case  and  the  documents  submitted  therewith,  and  after  hearing the submissions of the accused and the prosecution  in this behalf, the Judge considers that there is not sufficient  ground  for  proceeding  against  the  accused,  he  shall  discharge the accused and record his reasons for so doing.”

10)  If two views are possible and one of them gives rise to  

suspicion only, as distinguished from grave suspicion, the  

Trial Judge will be empowered to discharge the accused  

and at this stage he is not to see whether the trial will end  

in  conviction  or  acquittal.   Further,  the  words  “not  

sufficient  ground  for  proceeding  against  the  accused”  

clearly show that the Judge is not a mere Post Office to  

frame the charge at the behest of the prosecution, but has  

to exercise his judicial  mind to the facts of  the case in  

order to determine whether a case for trial has been made  

out by the prosecution.  In assessing this fact, it is not  

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necessary for the Court to enter into the pros and cons of  

the matter or into a weighing and balancing of evidence  

and probabilities which is really the function of the Court,  

after  the  trial  starts.   At  the  stage  of  Section  227,  the  

Judge has merely to sift the evidence in order to find out  

whether or not there is sufficient ground for proceeding  

against the accused.  In other  words,  the sufficiency of  

ground  would  take  within  its  fold  the  nature  of  the  

evidence  recorded  by  the  police  or  the  documents  

produced  before  the  Court  which  ex  facie disclose  that  

there are suspicious circumstances against the accused so  

as to frame a charge against him.   

11)  The scope of Section 227 of the Code was considered  

by this Court in the case of  State of Bihar vs.  Ramesh  

Singh (1977) 4 SCC 39, wherein this Court observed as  

follows:-

“… … Strong suspicion against the accused, if  the matter  remains in the region of suspicion, cannot take the place of  proof of his guilt at the conclusion of the trial.  But at the  initial  stage if  there is a strong suspicion which leads the  Court to think that there is ground for presuming that the  accused has committed an offence then it is not open to the  Court to say that there is no sufficient ground for proceeding  

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against  the  accused.  The  presumption  of  the  guilt  of  the  accused which is to be drawn at the initial stage is not in the  sense  of  the  law  governing  the  trial  of  criminal  cases  in  France where the accused is presumed to be guilty unless  the  contrary  is  proved.  But  it  is  only  for  the  purpose  of  deciding prima facie whether the Court should proceed with  the  trial  or  not.  If  the  evidence  which  the  Prosecutor  proposes to adduce to prove the guilt of the accused even if  fully accepted before it is challenged in cross-examination or  rebutted by the defence evidence, if any, cannot show that  the  accused committed  the  offence,  then there  will  be  no  sufficient ground for proceeding with the trial. …. ”

This Court has thus held that whereas strong suspicion  

may not take the place of the proof at the trial stage, yet it  

may be sufficient for the satisfaction of the Trial Judge in  

order to frame a charge against the accused.   

12)  In a subsequent decision i.e. in  Union of India vs.  

Prafulla Kumar Samal, (1979) 3 SCC 4, this Court after  

adverting to the conditions enumerated in Section 227 of  

the Code and other decisions of this Court, enunciated the  

following principles:-

“(1)  That  the  Judge  while  considering  the  question  of  framing the charges under Section 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  

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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 Section 227 of  the Code the Judge which under the present Code is a senior  and experienced court cannot act merely as a Post Office or a  mouthpiece  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.”

13) The  scope  and  ambit  of  Section  227  was  again  

considered in Niranjan Singh K.S. Punjabi vs. Jitendra  

Bhimraj Bijjaya, (1990) 4 SCC 76, in para 6, this Court  

held that:

“Can he marshal  the evidence found on the record of  the  case and in the documents placed before him as he would do  on  the  conclusion  of  the  evidence  adduced  by  the  prosecution after  the charge is  framed? It  is  obvious that  since  he  is  at  the  stage  of  deciding  whether  or  not  there  exists sufficient grounds for framing the charge, his enquiry  must necessarily be limited to deciding if the facts emerging  from the record and documents constitute the offence with  which the accused is charged. At that stage he may sift the  evidence for that limited purpose but he is not required to  marshal  the  evidence  with  a  view to  separating  the  grain  from  the  chaff.  All  that  he  is  called  upon  to  consider  is  whether there is sufficient ground to frame the charge and  for  this  limited  purpose  he  must  weigh  the  material  on  record  as  well  as  the  documents  relied  on  by  the  prosecution. In the State of Bihar v. Ramesh Singh this Court  observed that at the initial stage of the framing of a charge if  there is a strong suspicion-evidence which leads the court to  think that there is ground for presuming that the accused  has committed an offence then it is not open to the court to  

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say that there is no sufficient ground for proceeding against  the accused. If the evidence which the prosecutor proposes  to  adduce  to  prove  the  guilt  of  the  accused,  even  if  fully  accepted  before  it  is  challenged  by  cross-examination  or  rebutted by the defence evidence, if any, cannot show that  the  accused committed  the  offence,  then there  will  be  no  sufficient ground for proceeding with the trial.  In  Union of  India v.  Prafulla Kumar Samal this Court after considering  the  scope  of  Section  227  observed  that  the  words  ‘no  sufficient ground for proceeding against the accused’ clearly  show that  the  Judge  is  not  merely  a  post  office  to  frame  charge  at  the  behest  of  the  prosecution  but  he  has  to  exercise his judicial mind to the facts of the case in order to  determine that a case for trial  has been made out by the  prosecution. In assessing this fact it is not necessary for the  court to enter into the pros and cons of the matter or into  weighing and balancing of evidence and probabilities but he  may evaluate the material to find out if the facts emerging  therefrom taken at their face value establish the ingredients  constituting the said offence.”

14)  In  a  recent  decision,  in  the  case  of  Soma  

Chakravarty vs.  State through CBI, (2007) 5 SCC 403,  

this Court has held that the settled legal position is that if  

on the basis of material on record the Court could form an  

opinion that the accused might have committed offence it  

can  frame  the  charge,  though  for  conviction  the  

conclusion  is  required  to  be  proved  beyond  reasonable  

doubt that the accused has committed the offence.  At the  

time of framing of the charges the probative value of the  

material on record cannot be gone into, and the material  

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brought on record by the prosecution has to be accepted  

as true.  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.   Whether,  in fact,  the accused committed  

the offence, can only be decided in the trial.  Charge may  

although  be  directed  to  be  framed when there  exists  a  

strong suspicion but it is also trite that the Court must  

come  to  a  prima  facie finding  that  there  exist  some  

materials  therefor.   Suspicion  alone,  without  anything  

more,  cannot  form  the  basis  therefor  or  held  to  be  

sufficient for framing charge.

15)  We shall now apply the principles enunciated above to  

the present case in order to find out whether or not the  

Courts  below were  justified  in  dismissing  the  discharge  

petition filed under Section 227 of the Code.   

16)  In the earlier part of our judgment, we have adverted  

to the assertion of the appellant that from 1970 till 1998,  

there  was  no  allegation  that  the  encounter  was  a  fake  

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encounter.  In the year 1998, reports appeared in various  

newspapers in Kerala that the killing of Varghese in the  

year 1970 was in a fake encounter and that senior police  

officers are involved in the said fake encounter.  Pursuant  

to the said news reports, several writ petitions were filed  

by various individuals and organizations before the High  

Court of Kerala with a prayer that the investigation may  

be transferred to Central Bureau of Investigation (CBI).  In  

the said writ petition, Constable Ramachandran Nair filed  

a counter affidavit dated 11.01.1999 in which he made a  

confession  that  he  had  shot  Naxalite  Varghese  on  the  

instruction of  the then Deputy Superintendent of  Police  

(DSP), Lakshmana.  In the same counter affidavit, he also  

stated that the appellant was present when the incident  

occurred.  Based on the assertion in the counter affidavit  

of  Ramachandran Nair dated 11.01.1999 by order dated  

27.01.1999  learned  single  Judge  of  the  High  Court  of  

Kerala passed an order entrusting an investigation to the  

CBI.  As said earlier, accordingly, CBI registered an FIR on  

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03.03.1999  implicating  Constable  Ramachandran  Nair,  

Lakshmana and the appellant-Vijayan as accused Nos. 1,  

2 and 3 respectively for an offence under Section 302 read  

with Section 34 IPC.

17)   The  materials  relied  on  by  the  CBI  against  the  

appellant are as follows:-

a) Confessional note dictated by Constable Ramachandran  

Nair to Shri M.K. Jayadevan which was handed over to  

one Mr. Vasu.

b)  The 161 statement of CW 6, Mr. Vasu, an erstwhile  

Naxalite  in  which  he  stated  that  in  the  year  1977,  

Constable Ramachandran Nair confessed to him that he  

had shot dead Naxalite Varghese.

c) The 161 statement of CW 21 Constable Mohd. Hanifa in  

which  he  has  stated  that  he  was  present  along  with  

Constable  Ramachandran  Nair  while  he  shot  dead  

Naxalite Varghese.

d)  The 161 statement of CW 31, Mr. K. Velayudhan in  

which  he  stated  that  Constable  Ramachandran  Nair  

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contacted him and stated that he had shot dead Naxalite  

Varghese.

e)  The 161 statement of CW 32, Mr. M.K. Jayadevan who  

stated  that  Constable  Ramachandran Nair  had dictated  

his  confessional  statement  to  him and he delivered  the  

same to Mr. Vasu.

f)  The  counter  affidavit  dated  11.01.1999  filed  by  

Constable Ramachandran Nair  before the High Court  of  

Kerala in O.P. No. 21142/1998.

18)   Learned  counsel  for  the  appellant  at  the  foremost  

submitted that even if the alleged confession of Constable  

Ramachandran Nair is found to be correct, in view of the  

fact that the said Ramchandran Nair is no more and died  

long ago, in the light of Section 30 of the Indian Evidence  

Act,  1872  and  in  the  absence  of  joint  trial,  the  same  

cannot be used against the appellant.  It is not in dispute  

that Constable Ramachandran Nair is not alive and there  

is no question of joint trial by the prosecution against the  

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other two accused along with the said Ramchandran Nair.  

Section 30 of the Evidence Act, 1872 reads as:

“30. Consideration of proved confession affecting person  making it and other jointly under trial for same offence. —When more persons than one are being tried jointly for the  same offence, and a confession made by one of such persons  affecting himself and some other of such persons is proved,  the Court may take into consideration such confession as  against such other person as well as against the person who  makes such confession. [Explanation.—“Offence”,  as  used  in  this  section,  includes  the abetment of, or attempt to commit the offence]”

It  was  pointed  out  that  the  confession  of  Constable  

Ramachandran Nair is inadmissible since this confession  

is made by an accused which cannot be used against a co-

accused except for corroboration that too in a case where  

both accused are being tried jointly for the same offence.  

In  the  present  case,  the  accused-Constable  

Ramachandran  Nair  is  dead  and,  therefore,  the  trial  

against him has abated, hence there is no question of joint  

trial of Constable Ramachandran Nair and the appellant.  

He further pointed out that in view of the same the said  

extra  judicial  confession  is  inadmissible  by  virtue  of  

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Section 30.  He relied on a three-Judge Bench decision of  

this Court in  Mohd. Khalid vs.  State of West Bengal,  

(2002) 7 SCC 334.

19)   In  Hardeep Singh Sohal  & others vs.  State  of  

Punjab,  (2004) 11 SCC 612, this Court again held that  

confession cannot be admitted in evidence against the co-

accused  under  Section  30  of  the  Indian  Evidence  Act,  

1872, since,  the accused who made the confession was  

not tried along with the other accused.   

20)   Insofar  as  the  admissibility  or  acceptability  of  the  

extra judicial confession in the form of counter affidavit  

made by the first  accused before the High Court in the  

earlier proceedings are all matters to be considered at the  

time  of  trial.   Their  probative  value,  admissibility,  

reliability  etc  are  matters  for  evaluation  after  trial.   As  

rightly pointed out by Mr. H.P. Raval, learned Additional  

Solicitor General, apart from the confession, the statement  

of  Vasu-CW-6,  Md.  Hanifa-CW-21,  Mr.  K.  Velayudhan-

CW-31  and  Mr.  M.K.  Jayadevan-CW-32  are  very  well  

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available and cannot be ignored lightly.  We are satisfied  

that all the above materials require sufficient scrutiny at  

the hands of the Trial Judge.   

21)   As discussed earlier,  Section 227 in the new Code  

confers  special  power  on  the  Judge  to  discharge  an  

accused  at  the  threshold  if  upon  consideration  of  the  

records  and  documents,  he  find  that  “there  is  not  

sufficient ground” for proceeding against the accused.  In  

other words, his consideration of the record and document  

at  that  stage  is  for  the  limited  purpose  of  ascertaining  

whether or not there is sufficient ground for proceeding  

against the accused.  If the Judge comes to a conclusion  

that there is sufficient ground to proceed, he will frame a  

charge  under  Section 228,  if  not,  he  will  discharge  the  

accused.  This provision was introduced in the Code to  

avoid  wastage  of  public  time  which  did  not  disclose  a  

prima facie case and to save the accused from avoidable  

harassment and expenditure.   

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22)  In the case on hand, though, the learned Trial Judge  

has  not  assigned  detailed  reasons  for  dismissing  the  

discharge petition filed under Section 227, it is clear from  

his order that after consideration of the relevant materials  

charge  had  been  framed for  offence  under  Section  302  

read with Section 34 IPC and because of  the same,  he  

dismissed  the  discharge  petition.   After  evaluating  the  

materials  produced  by  the  prosecution  and  after  

considering the probability of  the case, the Judge being  

satisfied by the existence of sufficient grounds against the  

appellant and another accused framed a charge.  Whether  

the  materials  at  the  hands  of  the  prosecution  are  

sufficient  or  not  are  matters  for  trial.   At  this  stage,  it  

cannot be claimed that there is no sufficient ground for  

proceeding against the appellant and discharge is the only  

remedy.  Further, whether the trial will end in conviction  

or acquittal is also immaterial.  All these relevant aspects  

have been carefully considered by the High Court and it  

rightly  affirmed  the  order  passed  by  the  Trial  Judge  

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dismissing  the  discharge  petition  filed  by  A3-appellant  

herein.  We fully agree with the said conclusion.  

23)   It is made clear that we have not expressed anything  

on the merits of the claim made by both the parties and  

the conclusion of the High Court as well as this Court are  

confined only for disposal of the discharge petition filed by  

the appellant under Section 227 of the Code.  It is for the  

prosecution to establish its charge and the Trial Judge is  

at  liberty  to  analyze  and  to  arrive  at  an  appropriate  

conclusion, one way or the other, in accordance with law.   

24)  We direct the Trial Judge to dispose of the case of the  

CBI  expeditiously,  uninfluenced  by  any  of  the  

observations  made  above.   Considering  the  age  of  the  

appellant, he is permitted to file appropriate petition for  

dispensing his personal appearance and it is for the Trial  

Court  to  pass  an  order  taking  into  consideration  of  all  

relevant aspects.  With the above direction, the criminal  

appeal is dismissed.

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...…………………………………J.                   (P. SATHASIVAM)  

...…………………………………J.           (H.L. DATTU)  

NEW DELHI; JANUARY 27, 2010.           

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