P. VIJAYANversusSTATE OF KERALA & ANR.

                          [2010] 2 S.C.R. 78


A                            P. VIJAYAN
                                  v.
                    STATE OF KERALA & ANR.
                 (Criminal Appeal No. 192 of 2010)

                         JANUARY 27, 2010
B
             [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 ~--: ·..· '
                                                      .   ,.-   '.   .    .


    . 1.3. If on the basis_,_of mater_i,a'l:(jfi'·t~~o~d- thEtC~urt ·..
8
  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 mind
  on the material placed on record and must be satisfied
D that the commission df offen~; by the accused was
  pBssible. Whether, in fact, the accused committed the
  offence, can only be decided in the trial. Charge may
  although be directed to be framed when there exists a
  strong suspicion but it is also trite that the .Court must
E come to a prima facie finding that there exist some
  materials therefor. Suspicion alone, without anything
  more, cannot form the basis therefor or held to be
  sufficient for framing charge. [Para 14] [90-A-D]

F       State of Bihar vs. Ramesft Singh (1977) 4 SCC 39;
    Union of India vs. Prafulla Kumar Sama/ (1979) 3 SCC 4;
    Niranjan Singhrft:S. Punjabi vs. Jitendra Bhimraj Bijjaya
    (1990) 4 SCC 76; Soma Chakravarty vs. State through CBI
    (2007) 5 sec 403, Relied on.

G     2.1. From 1970 till 1998, there was no allegation that
  the encounter was a fake encounter. In the year 1998,
  reports appeared in various newspapers in Kerala that
  the killing of the Naxalite in the year 1970 was in a fake
  encounter and that senior police officers are involved in
H the said fake encounter. Pursuant to the said news
       P. VIJAYAN v. STATE OF KERALA & ANR.                81


  reports, several writ petitions were filed by various          A
  individuals and organizations before the High Court with
  a prayer that the investigation may be transferred to
  Central Bureau of Investigation. In the said writ petition,
  Constable-A1 filed a counter affidavit in which he made
  a confession that he liad shot Naxalite on the instruction     B
  of the then Deputy Superintendent of Police-A2; and that
  the appellant was present when the incident occurred.
  Based on the assertion in the counter affidavit of the
  constable-A1, Single Judge of High Court passed an
· orc~er entrusting an investigation to the CBI. CBI             c
  registered an FIR implicating the Constable, the DSP and
  the appellant as accused Nos. 1, 2 and 3 respectively for
  an offence u/s. 302/34 IPC. Constable-A 1 is not alive and
  there is no question of joint trial by the prosecution
  against the other two accused along with A 1. [Paras 16        0
  and 18] [90-F-H; 91-A-C; 92-C]

     2.2. Insofar as the admissibility or acceptability of the
extra judicial confession in the form of counter affidavit
made by the first accused before the High Court in the
earlier proceedings are all matters to be considered at the · E
time of trial. Their probative value, admissibility, reliability
etc. are matters for evaluation after trial. The Additional
Solicitor General rightly pointed out that apart from the
confession, the statement of CW-6, CW-21, CW-31 and
CW-32 are very well available and cannot be ignored F
lightly. All the above materials require sufficient .scrutiny
at the hands of the trial judge. [Para 20] [93-C-E]

    Mohd. Khalid vs. State of West Bengal (2002) 7 SCC
334; Hardeep Singh Saha/ & Ors. vs. State of Punjab (2004)       G
11 sec 612, referred to.

     2.3. In the instant case, though, the trial judge has not
assigned detailed reasons for dismissing the discharge
petition filed u/s. 227, it is clear from his order that after
consideration of the relevant materials charge had been          H
    82      SUPREME COURT REPORTS               [2010] 2 S.C.R.


A framed for offence u/s. 302 read with s. 34 IPC and
  because of the same, he dismissed the discharge
  petition. After evaluating the materials produced by the
  prosecution and after considering the probability of the
  case, the judge being satisfied by the existe·nce of
B sufficient grounds against the appellant and another
  accused framed a charge. Whether the materials at the
  hands of the prosecution are sufficient or not are matters
  for trial. At this stage, it cannot be claimed that there is
  no sufficient ground for proceeding against the appellant
c and discharge is the only remedy. Further, whether the
  trial will end in conviction or acquittal is also immaterial.
  All these relevant aspects have been carefully considered
  by the High Court and it rightly affirmed the order passed
  by the trial judge dismissing the discharge petition filed
  by the appellant-A3. The said conclusion are concurred
0
  with. [Para 22] [94-A-D]

       2.4. Nothing is expressed on the merits of the claim
  made by both the parties and the conclusion of the High
  Court as well as this Court are confined only for disposal
E of the discharge petition filed by the appellant u/s. 227 of
  the Code. It is for the prosecution to establish its charge
  and the trial judge is at liberty to analyze and to arrive at
  an appropriate conclusion, one way or the other, in
  accordance with law. [Para 23] [94-E-F]
F
                          Case Law Reference:
         (1977) 4 sec 39         Relied on.          Para 11
         (1979) 3 sec 4          Relied on.          Para 12
G        (1990) 4 sec 76         Relied on.          Para·
         (2001) s sec 403        Relied on.          Para 14
         (2002) 1 sec 334        Referred to.        Para 18

H        (2004) 11 sec 612       Referred to.        Para 19
      P. VIJAYAN v. STATE OF KERALA & ANR.                    83


    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                A
No 192 of 2010.

    From the Judgment & Order dated 4.7.2007 of the High
Court of Kerala at Ernakulam in Criminal Revision Petition No.
245 of 2007.
                                                                    B
    Raghenth Basant, Liz Mathew, Senthil Jagadeesan for the
Appellant.

     H.P. Raval, ASG, A. Mariarputham, P.K. Dey T. A. Khan
Rajiv Nanda, Arvind Kr. Sharma, Dushyant Parashar, R.               c
Sathish, P. Parmeswaran for the Respondents.

     The Judgment of the Court was delivered by

     P. SATHASIVAM, J. 1. Leave granted.
                                                                    D
      2. This appeal is directed against the judgment and order
of the High Court of Kerala at ErnaKulam dated 04.07.200,7.
passed in Criminal Revision Petition No. 2455 of 2007, in and
by which, the learned single Judge, after finding no ground to
interfere with the order passed by the Trial Judge dismissing       E
discharge petition filed by the appellant herein, refused to
interfere in his revision.

     3. According to the appellant, he is a retired IPS officer
aged about 85 years. He enjoyed a considerable reputation as
an IPS officer and had retired as the Director General of Police,   F
Kerala. In the course of his tenure as a senior polie.e officer,
he controlled the Naxalite militancy which was rampant in
Kerala in the 1970s. In the 1970s, Naxalites ur·1der the banner
of CPl(ML), a militant organization, had taken up the cause of
the poor through armed appraisal and violence. The said             G
organization committed various brutal murders and dacoities
including attacking police stations and murdering innocent
policemen. The State Government which was in power at the
relevant time took serious note of the said atrocities committed
                                                                    H
    84      SUPREME COURT REPORTS                   [2010] 2 S.C.R.


A   by the cadres of CPI (ML) and took a decjsion to put an end to
    the said atrocities.

        4. It is his further case that Naxalite Varghese was a
  prominent leader of the CPI (ML) in Kerala during 1970s. He
  was an accused in cases relating to murder of landlords as well
8
  as attack on policemen. Since, he was wanted in many grave
  criminal offences, he was hiding. A special team consisting
  members of the Kerala Police as well as CRPF was formed
  to nab Naxalite Varghese. On 18.02.1970, the police received
  a tip off that he was present in the hut of one Shivaraman Nair
C and based on the said information, the special team rushed to
  the spot and broke open the door of the said hut and arrested
  Naxalite, Varghese. However, while he was being take~ to the
  Mananthavadi police station in a police jeep, he tried to escape
  and attacked the policemen resulting in clash between the
D police party and Naxalite Varghese. During the said clash, in
  order to prevent Naxalite Varghese from escaping, the police
  had to fire and in the shoot out he was killed. The capture of
  Naxalite Varghese was highlighted as one of the achievements
  of the Kerala Police at that time and the police personnel
E involved in the said operation were given out of turn promotions
  and increments in appreciation of being part of the team. The
  appellant had also received various medals while in service for
  his role in tackling the naxalite militancy in Kerala.

F        5. It was further pointed out that from 1970 till 1998, there
    was no allegation that the said encounter was a fake encounter.
    Only in the year 1998, reports ~ppeared in various newspapers
    in Kera la that the killing of Varghese in the year 1970 was in a
    fake encounter and that senior police officers are involved in
    the said fake encounter. Pursuant to the said news reports,
G several writ petitions were filed by various individuals and
   organizations before the High Court of Kerala with a prayer that
   the investigation may be transferred to Central Bureau of
    Investigation (CBI). In the said writ petition, Constable
  . Ramachandran Nair filed a counter affidavit dated 11.01.1999
H
       P. VIJAYAN v. STATE OF KERALA & ANR.                   85
                 [P. SATHASIVAM, J.]
in which he made a confession that he had shot Naxalite             A
Varghese on the instruction of the then Deputy Superintendent
of Police (DSP),-lakshmana. He also stated that the appellant
was present when the incident occurred. By order dated
27.01.1999, learned single Judge of the High Court of Kerala
passed an order directing the CBI to register an FIR on the facts   B
disclosed in the counter affidavit filed by Constable
Ramachandran Nair. Accordingly, the CBI registered an FIR on
03.03.1999 in which Constable Ramachandran Nair was
named as accused No. 1, Mr. Lakshmana was named as
accused No. 2 and Mr. P. Vijayan, the appellant herein, was         C
named as accused No. 3 for an offence under Section 302 IPC
read with Section 34 IPC. After investigation, the CBI filed a
charge-sheet before the Special Judge (CBI), Ernakulam on
11.12.2002 wherein all the above mentioned persons were
named as A 1 to A3 respectively for an offence under Sections
302 and 34 IPC.
                                                                    0

     6. By pointing out various reasons, his meritorious service
and nothing whispered for a period of twenty years, the
appellant filed a petition on 17.05.2007 under Section 227 of
the Code of Criminal Procedure (in short "CrPC") for discharge.     E
The learned Trial Judge by order dated 08.06.2007, dismissed
the said petition and passed an order for framing charge for
offence under Sections 302 and 34 IPC. Aggrieved by the
aforesaid order, the appellant filed a Criminal Revision Petition
No. 2455 of 2007 before the High Court of Kerala. By an             F
impugned order dated 04.07.2007, learned single Judge of the
High Court dismissed the said Criminal Revision Petition.
Questioning the said order, the appellant filed the above
appeal by way of Special Leave Petition.

     7. We have heard Mr. Raghenth Basant, learned counsel          G
for the appellant and Mr. H.P. Raval, learned Additional
Solicitor General for CBI-second respondent herein.

    8. The questions that arose for consideration in this appeal
are (i) whether the appellant established sufficient ground for     H
    86       SUPREME COURT REPORTS                   [201 O] 2 S.C.R.


A discharge under Section 227 of the CrPC, and (ii) whether the
  Trial Judge as well as the High Court committed any error in
  rejecting the claim of the appellant.

       9. Before considering the merits of the claim of both the
  parties, it is useful to refer Section 227 of the Code of Criminal
B Procedure, 1973, which reads as under:-

          "227. Discharge.-lf, upon consideration of the record of
         Jhe case and the documents submitted therewith, and after
          hearing the submissions of the accused and the
c        prosecution in this behalf, the Judge considers that there
         is not sufficient ground for proceeding against the
         accused, he shall discharge the accused and record his
         reasons for so doing."

          10. If two views are possible and one of them gives rise
D   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 the trial will end in
    conviction or acquittal. Further, the words "not sufficient ground
    for proceeding against the accused" clearly show that the Judge
E   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 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
F   the matter or into a weighing and balancing of evidence and
    probabilities which is really the function of the Court, after the
    trial starts. At the stage of Section 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. In other
G   words, the sufficiency of ground would take within its fold the
    nature of the 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.
H
       P. VIJAYAN v. STATE OF KERALA & ANR.                       87
                 [P. SATHASIVAM, J.]
     11. The scope of Section 227 of the Code was considered             A
by this Court in the case of State of Bihar vs. Ramesh Singh
(1977) 4 SCC 39, wherein this Court observed as follows:-

      " ...... Strong suspicion against the accused, if the matter
      remains in the region of suspicion, cannot take the place          B
      of proof of his guilt at the conclusion of the trial. But at the
      initial stage if there is a strong suspicion which leads the
      Court to think that there is ground for presuming that the
      accused has committed an offence then it is riot open to
      the Court to say that there is no sufficient ground for
      proceeding against the accused. The presumption of the             C
      guilt of the accused which is to be drawn at the initial stage
      is not in the sense of the law governing the trial of criminal
     cases in France where the accused is presumed to be
     guilty unless the contrary is proved. But it is only for the
     purpose of deciding prima facie whether the Court should            D
     proceed with the trial or not. 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 the offence,            E
     then there will be no sufficient ground for proceeding with
     the trial. .... "

     This Court has thus held that whereas strong suspicion may
not take the place of the proof at the trial stage, yet it may be        F
sufficient for the satisfaction of the Trial Judge in order to frame
a charge against the accused.

     12. In a subsequent decision i.e. in Union of India vs.
Prafu/fa Kumar Sama/, (1979) 3 SCC 4, this Court after
adverting to the conditions enumerated in Section 227 of the G
Code and other decisions of this Court, enunciated the following
principles:-

    "(1) That the Judge while considering the question of
    framing the charges under Section 227 of the Code has H
    88       SUPREME COURT REPORTS                    [201 OJ 2 S.C.R.


A         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 placed before the Court disclose
          grave suspicion against the accused which has not been
B
          properly explained the Court will be fully justified in framing
          a charge and proceeding with the trial.

           (3) The test to determine a prima facie case would
           naturally depend upon the facts of each case and it is
c        · difficult to lay down a rule of universal application. By and
           large however if two views are equally possible and the
           Judge is satisfied that the evidence produced before him
           while giving rise to some suspicion but not grave suspicion
           against the accused, he will be fully within his right to
D          discharge the accused.

         (4) That in exercising his jurisdiction under Section 227 of
         the Code the Judge which under the present Code is a
         senior and experienced court cannot act merely as a Post
         Office or a mouthpiece of the prosecution, but has to
E        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
F        and weigh the evidence as if he was conducting a trial."

          13. The scope and ambit of Section 227 was again
    considered in Niranjan Singh K. S. Punjabi vs. Jitendra
    Bhimraj Bijjaya, (1990) 4 SCC 76, in para 6, this Court held
G   that:
         "Can he marshal the evidence found on the record of the
         case and in the documents placed before him as he would
         do on the conclusion of the evidence adduced by the
         prosecution after the charge is framed? It is obvious that
H
   P. VIJAYAN v. STATE OF KERALA & ANR.                       89
             [P. SATHASIVAM, J.]

   since he is at the stage of deciding whether or not there         A
   exists sufficient grounds for framing the charge, his enquiry
   must necessarily be limited to deciding if the facts
  emerging from the record and documents constitute the
   offence with which the accused is charged. At that stage
   he may sift the evidence for that limited purpose but he is       B
   not required to marshal the evidence with a view to
   separating the grain from the chaff. All that he is called upon
  to consider is whether there is sufficient ground to frame
  the charge and for this limited purpose he must weigh the
· material on record as well as the documents relied on by           c
  the prosecution. In the State of Bihar v. Ramesh Singh
  this Court observed that at the initial stage of the framing
  of a charge if there is a strong suspicion-evidence which
  leads the court to think that there is ground for presuming
  that the accused has committed an offence then it is not
                                                                     D
  open to the court to say that there is no sufficient ground
  for proceeding against the accused. If the evidence which
  the prosecutor proposes to adduce to prove the guilt of the
  accused, even if fully accepted before it is challenged by
  cross-examination or rebutted by the defence evidence, if
                                                                     E
  any, cannot show that the accused committed the offence,
  then there will be no sufficient ground for proceeding with
 the trial. In Union of India v. Prafulla Kumar Samal this
  Court after considering the scope of Section 227 observed
 that the words 'no sufficient ground for proceeding against
 the accused' clearly show that the Judge is not merely a            F
 post office to frame charge at the behest of the prosecution
 but he has to exercise his judicial mind to the facts of the
 case in order to determine that 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          G
 the matter or into weighing and balancing of evidence and
 probabilities but he may evaluate the material to find out
 if the facts emerging therefrom taken at their face value
 establish the ingredients constituting the said offence.:·
                                                                     H
    90       SUPREME COURT REPORTS                  [201 O] 2 S.C.R.


A       14. In a recent decision, in the case of Soma Chakravarty
  vs. State through CBI, (2007) 5 SCC 403, this Court has held
  that the settled legal position is that if on the basis of material
  on record the Court could form an opinion that the accused
  might have committed offence it can frame the charge, though
B 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 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.
c Before framing a charge the court must apply its judicial mind
  on the material placed on record and must be satisfied that the
  commission of offence by the accused was possible. Whether,
  in fact, the accused committed the offence, can only be decided
  in the trial. Charge may although be directed to be framed when
  there exists a strong suspicion but it is also trite that the Court
0
  must come to a prima facie finding that there exist some
  materials therefor. Suspicion alone, without anything more,
  cannot form the basis therefor or held to be sufficient for framing
  charge.

E        15. We shall now apply the principles enunciated above
    to the present case in order to find out whether or not the Courts
    below were justified in dismissing the discharge petition filed
    under Section 227 of the Code.

F      16. In the earlier part of our judgment, we have adverted
  to the assertion of the appellant that from 1970 till 1998, t.'1ere
  was no allegation that the encounter was a fake encounter. In
  the year 1998, reports appeared in various newspapers in
  Kerala that the killing of Varghese in the year 1970 was in a
  fake encounter and that senior police officers are involved in
G the said fake encounter. Pursuant to the said news reports,
  several writ petitions were filed by various individuals and
  organizations before the High Court of Kerala with a prayer that
  the investigation may be transferred to Central Bureau of
  Investigation (CBI). In the said writ petition, Constable
H Ramachandran Nair filed a counter affidavit dated 11.01.1999
      P. VIJAYAN v. STATE OF KERALA & ANR.                  91
                [P. SATHASIVAM, J.]
in which he made a confession that he had shot Naxalite           A
Varghese on the instruction of the then Deputy Superintendent
of Police (DSP), Lakshmana. In the same counter affidavit, he
also stated that the appellant was present when the incident
occurred. Based on the assertion in the counter affidavit of
Ramachandran Nair dated 11.01.1999 by order dated                 B
27.01.1999 learned single Judge of the High Court of Kerala
passed an order entrusting an investigation to the CBI. As said
earlier, accordingly, CBI registered _an FIR on 03.03.1999
implicating Constable Ramachandran Nair, Lakshmana and
the appellant-Vijayan as accused Nos. 1, 2 and 3 respectively     c
for an offence under Section 302 read with Section 34 IPC.

    17. The materials relied on by the CBI against the
appellant are as follows:-

    ( a) Confessional note dictated by Constable                  o
    Ramachandran Nair to Shri M.K. Jayadevan which was
    handed over to one Mr. Vasu.

    (b) The 161 statement of CW 6, Mr. Vasu, an erstwhile
   -Naxalite in which he stated that in the year 1977,
    Constable Ramachandran Nair confessed to him that he          E
    had shot dead Naxalite Varghese.

    (c) The 161 statement of CW 21 Constable Mohd. Hanifa
    in which he has stated that he was present along with
    Constable Ramachandran Nair while he shot dead                F
    Naxalite Varghese.

    (d) The 161 statement of CW 31, Mr. K. Velayudhan in
    which he stated that Constable Ramachandran Nair
    contacted him and stated that he had shot dead Naxalite
    Varghese.                                                     G

    (e) The 161 statement of CW 32, Mr. M.K. J~yadevan who
    stated that Constable Hamachandran Nair' had dictated
    his confessional statement to him and he delivered the
    same to Mr. Vasu.                                             H
    92       SUPREME COURT REPORTS                  [2010] 2 S.C.R.


A        (f) The counter affidavit dated 11.01.1999 filed by
         Constable Ramachandran Nair before the High Court of
         Kerala in O.P. No. 21142/1998.

          18. Learned counsel for the appellant at the foremost
    submitted that even if the alleged confession of Constable
8
    Ramachandran Nair is found to be correct, in view of the fact
    that the said Ramchandran Nair is no more and died long ago,
    in the light of Section 30 of the Indian Evidence Act, 1872 and
    in the absence of joint trial, the same cannot be used against
    the appellant. It is not in dispute that Constable Ramachandran
C   Nair is not alive and there is no question of joint trial by the
    prosecution against the other two accused along with the said
    Ramchandran Nair. Section 30 of the Evidence Act, 1872
    reads as:

o        "30. Consideration of proved confession affecting person
         making it and other jointly under trial for same offence.-.
         When more persons than one are being tried jointly for the
         same offence, and a confession made by one of such
         persons affecting himself and some other of such persons
E        is proved, the Court may take into consideration such
         confession as against such other person as well as
         against the person who makes such confession.

         [Explanation.-"Offence", as used in this section, includes
         the abetment of, or attempt to commit the offence]"
F
    It was pointed out that the confession of Constable
    Ramachandran Nair is inadmissible since this confession is
    made by an accused which cannot be used against a co-
    accused except for corroboration that too in a case where both
G   accused are being tried jointly for the same offence. In the
    present case, the accused-Constable Ramachandran Nair is
    dead and, therefore, the trial against him has abated, hence
    there is no question of joint trial of Constable Ramachandran
    Nair and the appellant. He further pointed out that in view of the
H   same the said extra judicial confession is inadmissible by virtue
...
             P. VIJAYAN v. STATE OF KERALA & ANR.                      93
                       [P. SATHASIVAM, J.]
      of Section 30. He relied on a three-Judge Bench decision of            A
      this Court in Mohd. Khalid vs. State of West Bengal, (2002) 7
      sec 334.
           19. In Hardeep Singh Sohal & others vs. State of Punjab,
      (2004) 11 SCC 612, this Court again held that confession               B
      cannot be admitted in evidence against the co-accused under
      Section 30 of the Indian Evidence Act, 1872, since, the accused
      who made the confession was not tried along with the other
      accused.

            20. Insofar as the admissibility or acceptability of the extra   C
      judicial confession in the form of counter affidavit made by the
      first accused before the High Court in the earlier proceedings
      are all matters to be considered at the time of trial. Their
      probative value, admissibility, reliability etc are matters for
      evaluation after trial. As rightly pointed out by Mr. H.P. Raval,      D
      learned Additional Solicitor General, apart from the confession,
      the statement of Vasu-CW-6, Md. Hanifa-CW-21, Mr. K.
      Velayudhan-CW-31 and Mr. M.K. Jayadevan-CW-32 are very
      well available and cannot be ignored lightly. We are satisfied
      that all the above materials require sufficient scrutiny at the        E
      hands of the Trial Judge.

            21. As discussed earlier, Section 227 in the new Code
       confers special power on the Judge to discharge an accused
       at the threshold if upon consideration of the records and
       documents, he find that "there is not sufficient ground" for          F
       proceeding against the accused. In other words, 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         G
      proceed, he will frame a charge under Section 228, if not, he
      will discharge the accused. This provision was introduced in
      the Code to avoid wastage of public time was not disclosed a
      prima facie case when and to save the accused from avoidable
      harassment and expenditure.                                            H
    94       SUPREME COURT REPORTS                   [201 O] 2 S.C.R.


A       22) In the case on hand, though, the learned Trial Judge
  has not assigned detailed reasons for dismissing the discharge
  petition filed under Section 227, it is clear from his order that
  after consideration of the relevant materials charge had been
  framed for offence under Section 302 read with Section 34 IPC
B and because of the same, he dismissed the discharge petition.
  After evaluating the materials produced by the prosecution and
  after considering the probability of the case, the Judge being
  satisfied by the existence of sufficient grounds against the
  appellant and another accused framed a charge. Whether the
c materials at the hands of the prosecution are sufficient or not
  are matters for trial. At this stage, it cannot be claimed that there
  is no sufficient ground for proceeding against the appellant and
  discharge is the only remedy. Further, whether the trial will end
  in conviction or acquittal is also immaterial. All these relevant
  aspects have been carefully considered by the High Court and
0
  it rightly affirmed the order passed by the Trial Judge dismissing
  the discharge petition filed by A3-appellant herein. We fully
  agree with the said conclusion.

       23. It is made clear that we have not expressed anything
E on the merits of the claim made by both the parties and the
  conclusion of the High Court as well as this Court are confined
  only for disposal of the discharge petition filed by the appellant
  under Section 227 of the Code. It is for the prosecution to
  establish its charge and the Trial Judge is at liberty to analyze
F and to arrive at an appropriate conclusion, one way or the other,
  in accordance with law.

       24. We direct the Trial Judge to dispose of the case of the
  CBI expeditiously, uninfluenced by any of the observations made
  above. Considering the age of the appellant, he is permitted
G to file appropriate petition for dispensing his personal
  appearance and it is for the Trial Court to pass an order taking
  into consideration of all relevant aspects. With the above
  direction, the criminal appeal is dismissed.

H N.J.                                            Appeal dismissed.