Section 227 CrPC: Defence Of Accused Cannot Be Looked Into While Considering His Discharge Petition: Reiterates SC [Read Judgment]

The Supreme Court has observed that defence of the accused cannot be looked into at the stage when the accused seeks to be discharged under Section 227 of the Code of Criminal Procedure.

In M.E. Shivalingamurthy vs. CBI, the High Court had set aside the order passed by the Magistrate allowing the discharge application filed by the accused. The allegation against the accused, who was Director of Mines and Geology in the State of Karnataka at the relevant time, was that he conspired with other accused to commit theft of Government property. 

The legal issue before the Apex Court was whether the accused could rely upon material which he chooses to produce at the stage of discharge application?

The bench comprising Justices Sanjay Kishan Kaul and KM Joseph noted that the principle is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused. It said:

"It is not open to the accused to rely on material by way of defence and persuade the court to discharge him. However, what is the meaning of the expression "materials on the basis of which grave suspicion is aroused in the mind of the court's", which is not explained away? Can the accused explain away the material only with reference to the materials produced by the prosecution? Can the accused rely upon material which he chooses to produce at the stage?  In view of the decisions of this Court that the accused can only rely on the materials which are produced by the prosecution, it must be understood that the grave suspicion, if it is established on the materials, should be explained away only in terms of the materials made available by the prosecution. No doubt, the accused may appeal to the broad probabilities to the case to persuade the court to discharge him"

While upholding the High Court order, the Court also referred to following principles enunciated in P. Vijayan v. State of Kerala (2010) 2 SCC 398:

• If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused

• The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution.

• The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court.

• 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 offence, then, there will be no sufficient ground for proceeding with the trial".

• It is open to the accused to explain away the materials giving rise to the grave suspicion. vi. The court has to consider the broad probabilities, 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, would not entitle the court to make a roving inquiry into the pros and cons.

• At the time of framing of the 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.

• There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.  

Case name: M.E. Shivalingamurthy vs. CBI
Case no. Cri. Appeal 957 of 2017
Coram: Justices Sanjay Kishan Kaul and KM Joseph
Counsel for Appellant: Sr. Adv Kapil Sibal
Counsel for Respondent: Adv. Mukesh Kumar Maroria

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