P. VIJAYAN versus STATE OF KERALA & ANR.

Citation: [2010] 2 S.C.R. 78 · Decided: 27-01-2010 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Dismissed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2010] 2 S.C.R. 78 
P. VIJAYAN 
v. 
STATE OF KERALA & ANR. 
(Criminal Appeal No. 192 of 2010) 
JANUARY 27, 2010 
[P. SATHASIVAM AND H.L. DATTU, JJ.] 
Code of Criminal Procedure, 1973 - s. 227 - Discharge 
- Retired JPS officer aged 85 years charge-sheeted uls.3021 
C 
34 /PC for killing a naxa/ite in a fake encounter, on basis of 
confession of a constable - Discharge petition u/s. 227 -
Rejection of, by courts below - Held: s. 227 confers special 
power on the judge to discharge accused if. upon 
consideration of records and documents 'there is no sufficient 
o ground' for proceeding against accused'- On facts, trial court 
after evaluating the materials produced by prosecution and 
after considering the probability of the case, dismissed the 
discharge petition and High Court upheld the same -
Admissibility or acceptability of extra judicial confession made 
E 
by constable before High Court in earlier proceedings is to 
be considered at the time of trial - Thus, orders of courts 
below does not call for interference - Penal Code, 1860 -
s. 302134 - Evidence Act, 1872 - s. 30. 
Appellant is a retired IPS official aged about 85 years. 
F 
Appellant along with the other accused were _charge-
sheeted in year 2002 for offenc.e punishable u/s. 302 read 
with s. 34 IPC fo{killing a Naxalite in year 1970, in a fake 
encounrer. Appellant-A3 filed a petition for discharge u/ 
s. 227 of the Code of Criminal Procedure, 1973. Trial court 
G dismissed the same and ordered for framing of charges 
against the appellant. Single Judge of High Court 
dismissed the revision petition. Hence the present 
appeal. 
H 
78 
P. VIJAYAN v. STATE OF KERALA & ANR. 
79 
Dismissing the appeal, the Court 
A 
HELD: 1.1 Section 227 of the Code of Criminal 
Procedure, 1973 confers special power on the Judge to 
discharge an accused at the threshold if upon 
consideration of the records and documents, he find that 8 
"there is not sufficient ground" for proceeding against 
the accused. 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, C 
he will frame a charge u/s. 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. [Para 21] [93-E-H] 
D 
1.2. 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 E 
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 
F 
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 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 G 
function of the Court, after the trial starts. At the stage of 
s. 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. The sufficiency of 
ground would take within its fold the nature of the H 
80 
SUPREME COURT REPORTS 
[2010] 2 S.C.R. 
A 
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. [Para 101 [86~C;;;f1L ~--: · .. · ' 
. ,.-
'. 
. 
. 
8 
. 
1.3. If on the basis_,_of mater_i,a'l:(jfi'·t~~o~d- thEtC~urt · .. 
could form an opinicH1 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 
C charges the probative value of the material on record 
cannot be gone into, and the material brought on record . 
by the prosecution has to be accepted as true. Before 
framing a charge the court must apply its judicial

Excerpt shown. Read the full judgment & AI analysis in Lexace.