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Prosecution must attract the ingredients of all the offences alleged: Kerala High Court

The trial court must consider whether the materials produced by the prosecution, prima facie, attract the ingredients of all the offences alleged against the petitioner. The petitioner is at liberty to raise before the court all his contentions for a fair trial. This contention had been upheld by the Kerala High Court presided by J. R. NARAYANA PISHARADI in the case of BABU vs. STATE OF KERALA [Crl.Rev.Pet.No.603 OF 2020].

The revision petitioner is the first accused in the case C.C.No.3 of 2017 pending in the Court of the Enquiry Commissioner and Special Judge, Kottayam. The offences alleged against the accused are punishable under Sections 13(1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and under Sections 409, 468, 471, 477A and 120B of the IPC. The petitioner was the Taluk Supply Officer, Cherthala and the accused was the Rationing Inspector, Cherthala South. The other accused was the licensee of the ration shop. The petitioner and the other two accused entered into a conspiracy and pursuant to such conspiracy, with the intention of allowing the second accused to get pecuniary gain, the petitioner and the accused allotted excess quantity of rice to the accused Santhosh in the Andyodaya Anna Yojana (AAY) scheme and thereby caused loss to the Government. The accused Santhosh had made unauthorised indents for rice on the basis of ration cards which were really not included in the AAY scheme. It was alleged that the petitioner and the accused, without verifying the indents and preparing the quarterly abstracts, allotted the rice. It was also alleged that the accused had forged and fabricated records relating to the ration shop for allotment of excess rice to the licensee of the shop. The petitioner filed an application under Section 239 of the CrPC, 1973 seeking discharge. The petitioner has filed this revision petition challenging the legality and propriety of the order passed by the trial court, dismissing the application for discharge filed by him.

The honorable court contended, “Therefore, inspite of the fact that the application for discharge filed by the petitioner does not contain the contentions raised before this Court, I find that another opportunity can be granted to him to raise all his contentions before the trial court with regard to the plea for discharge made by him. The matter has to be remanded to the trial court especially for the reason that the trial court has not considered whether the materials produced by the prosecution, prima facie, attract the ingredients of all the offences alleged against the petitioner. Consequently, the revision petition is allowed.” The court further held, “The impugned order, as far as it relates to the dismissal of the application for discharge filed by the petitioner, is set aside. The trial court shall consider afresh the application for discharge filed by the petitioner and pass appropriate orders in accordance with law. The petitioner is at liberty to raise before the trial court all his contentions with regard to his plea for discharge, including contentions which are not specifically raised or mentioned by him in the discharge application filed by him.”

The court referred to the case of State v. Mohanachandran : 2017 (4) KHC 297 and held, “In the instant case, the trial court has not specifically considered whether the materials produced by the prosecution, if accepted as true, would attract the ingredients of the offences alleged against the petitioner. It is incumbent upon the trial court to evaluate the materials produced by the prosecution on the premise that they are true and to find out whether they bring out or disclose the ingredients of the offences alleged against the accused. The trial court has not undertaken such an exercise. The trial court has not stated whether all the offences or only some of the offences alleged against the petitioner are, prima facie, made out against him. It is not necessary for an accused to file an application seeking the relief of discharge.”

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