S.227 CrPC | Notarised Affidavit By Complainant Not Sufficient To Discharge Accused: Kerala High Court

The Kerala High Court recently held that a notarised affidavit signed by the de facto complainants exonerating the accused person cannot be taken in isolation to discharge the accused.

Justice N. Nagaresh explained that to discharge an accused person under Section 227 of the CrPC, the Court ought to determine if there are sufficient grounds to proceed against them. If such grounds are found, an order of discharge cannot be passed and the accused would have to face trial.

"The purpose of Section 227 of the Code is to ensure that the Court should be satisfied that the accusations made against the accused is not frivolous and that there is some material for proceeding against the accused. 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... A notarised affidavit subsequently signed by the de facto complainants cannot be taken in isolation by the Court so as to discharge the accused." 

Explaining the provision, Justice Nagaresh elaborated:

"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 on the basis of 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". 

The revision petitioner had been accused of several offences under IPC including unlawful assembly, rioting, voluntarily causing grievous hurt by dangerous weapons and attempt to commit culpable homicide. 

The petitioner averred that he was not involved in any offence and that it was a case of mistaken identity. He added that the de facto complainants on being made aware of the same had also intimated the said fact to the investigating authorities. The petitioner submitted that the investigating authorities, however, did not take the same into consideration and arrayed the petitioner as an accused as well. 

The de facto complainants had subsequently submitted a sworn affidavit before a Notary Public to remove the petitioner from the array of the accused. Although this was submitted, the Sessions Court dismissed the petitioner's application for discharge. It is against the same that the present revision petition has been filed. 

The Court took note of the Sessions Court's observation that while considering a discharge application, it would have to look into whether there are sufficient materials to presume that the accused has committed the offence as alleged and that it could not look into documents produced or any other circumstances projected by the accused. 

The Court also noted various precedents such as State of Tamil Nadu v. Suresh Rajan (2014) and State of Karnataka v. M.R.Hiremath (2019) which laid down that at the stage of discharge, Courts would have to evaluate the materials to determine if the facts emerging from the materials, taken on its face value, disclose ingredients to constitute an offence.

Justice Nagaresh then took the view that a notarised affidavit subsequently signed by the de facto complainants could not be taken in isolation by the Court so as to discharge the accused. 

"Taking into consideration the fact that the petitioner is aspiring for a job in a public sector and pendency of the proceedings is likely to cause prejudice to the petitioner, there will be a direction to the court below to dispose of the matter as expeditiously as possible," the Court added.

As such, the petition was dismissed.

Counsel for the Petitioner: Advocates V.V. Surendran, and P.A. Harish

Counsel for the Respondents: Public Prosecutor M.P. Prasanth, and Advocate Resmi Nandanan

Citation: 2023 LiveLaw (Ker) 472

Case Title: Vishnu K.B. v. State of Kerala & Anr. 

Case Number: CRL.REV.PET NO. 678 OF 2023

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