Notarized Affidavit Subsequently Signed By De-Facto Complainant Cannot Be Taken In Isolation To Discharge Accused: Kerala HC
While highlighting that the purpose of Section 227 of the Code is to ensure that the Court should be satisfied that the accusations made against the accused are not frivolous and that there is some material for proceeding against the accused, the Kerala High Court held that if there is sufficient ground for presuming that the accused has committed an offence, an order of discharge cannot be passed and the accused has to face trial.
The High Court further added that a notarized affidavit subsequently signed by the de facto complainants cannot be taken in isolation by the Court so as to discharge the accused.
A Single Judge Bench of Justice N. Nagaresh observed that “For the purpose of determining whether there is sufficient ground for proceeding against the accused, the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such based on which a conviction is reasonably possible. Only prima facie case is to be seen. Whether case is beyond reasonable doubt is not to be seen at the stage of discharge. Probative value of materials on record cannot be gone into”.
Advocate V.V. Surendran appeared for the Revision Petitioner, whereas Advocate Resmi Nandan appeared for the Respondent.
The brief facts of the case were that the petitioner was arrayed as an accused for offences punishable under Sections 143, 147, 148, 341, 323, 324, 326, 308 and 149 of the Indian Penal Code. According to the petitioner, he is not involved in the case and has not committed any offence and the de facto complainants are aware of the same and they had intimated this fact to the police authorities. However, the investigating authorities did not take that into consideration and arbitrarily retained the petitioner in the array of the accused. When the petitioner approached the Court of Sessions seeking discharge, the same came to be dismissed.
After considering the submission, the Bench referred to the judgment in State of Karnataka v. M.R. Hiremath [(2019) 7 SCC 515], wherein the Apex Court held that at the stage of considering an application for discharge, the Court must proceed on the assumption that the materials which have been brought on record by the prosecution are true and evaluate the materials in order to determine whether the facts emerging from the materials, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.
The Bench further referred to the decision of State of Tamil Nadu v. Suresh Rajan [(2014) 11 SCC 709], wherein the Apex Court held that at the stage of discharge, only probative value of the materials 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 a conviction.
Therefore, finding that based on materials made available by the prosecution, the Assistant Sessions Judge has found that there is reason to proceed against the accused, the High Court dismissed the petition.
However, because the petitioner is aspiring for a job in a public sector and pendency of the proceedings is likely to cause prejudice to the petitioner, the High Court directed disposal of the matter as expeditiously as possible.
Cause Title: Vishnu K.B v. State of Kerala and Anr. [Neutral Citation: 2023/KER/53609]
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