Judge Not Mouthpiece Of Prosecution But Also Cannot Make Roving Enquiry While Considering Discharge Application Of Accused: Kerala HC

Justice K. Babu laid down thus:

“In exercising his jurisdiction under Sections 227 and 239 of the Code, the Judge 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.”

The Court was considering a revision petition filed by the petitioner aggrieved by the dismissal of his application seeking discharge under Section 239 of CrPC. The petitioner was arrayed as the 9^th accused for allegedly forming an unlawful assembly, committing rioting with deadly weapons and trespassing into the RSS office at Kakkad in Thrissur district. Thus, crime was registered him for allegedly committing offences punishable under 143, 147, 148, 452, 323, 324, 427 and 307 r/w Section 149 of the IPC.

The petitioner submitted that the Assistant Sessions Judge did not consider relevant materials while considering his discharge application. It was stated that the judge did not consider whether a prima facie case was made out to proceed as the judge did not consider the statement of witnesses who gave evidence for other accused in the trial who were acquitted.

On the other hand, the Public Prosecutor submitted that the judge cannot be expected to conduct a mini-trial while considering a discharge application.

The Court stated that Section 239 is not an empty or routine formality but is a valuable provision for the accused. It stated that Section 239 enables the Court to assess whether the charges against the accused were substantiated or groundless.

The Court stated that the Judge can proceed to frame charges in writing under Section 240 if it feels that there is ground for presuming that the accused has committed the offence.

The Court added that the Judge has to consider evidence and records placed before it and apply its mind judicially to decide whether there are sufficient grounds for proceeding against the accused.

The Court laid down the principles to be followed while considering a discharge application under Section 239:

1. "The Judge 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 disclose grave suspicion against the accused that has not been properly explained, then Court can frame charges and proceed with trial.
3. Depends on facts of each case, difficult to lay down a rule of universal application.
4. Judge cannot merely become act like a mouthpiece of prosecution but it must evaluate all probabilities, total effect of all evidence and documents, basic infirmities in the case. However, this does not imply that the Judge should conduct a detailed examination or weigh the evidence as though performing a full trial.
5. If two interpretations are possible and one merely raises suspicion, rather than grave suspicion, the Trial Judge has the authority to discharge the accused. At this stage, the Judge is not required to determine whether the trial will result in a conviction or acquittal."

The Court relying upon Arunkumar v. State of Kerala (2004) stated that the Assistant Sessions Judge was obliged to consider the statement of witness, supporting documents, evidence when the other accused was facing trial.

In the present case, the Court found that the Assistant Sessions Judge did not consider any materials placed before it while deciding the discharge application. It thus set aside the order of Assistant Sessions Judge dismissing his discharge application and directed the Court to reconsider the application under Section 239.

Counsel for Petitioner: Advocates Rajit, V.V.Joy, Ajaiy Baskar

Counsel for Respondents: Senior Public Prosecutor C N Prabhakaran

Citation: 2024 LiveLaw (Ker) 475

Case Title: Libin v State of Kerala

Case Number: Crl.Rev.Pet No. 179 Of 2024

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