High Court of Kerala

S.S. Roy Vs. State of Kerala

MANU/KE/3366/2018

26.11.2018

Criminal

High Court in a revision can examine only when factual aspects are mixed with legal aspects

The revision Petitioner herein is the 4th accused was an Assistant Engineer of the Kerala Water Authority ('the KWA') from 1994 to 1997. He and other engineers, including the then Superintending Engineer of the KWA, and also a work contractor, who undertook some works under the Thiruvananthapuram Drainage Scheme, are being prosecuted on the allegation of mal practice and corruption in carrying out the said Scheme. Pending the proceedings, this Petitioner and some other accused made application for discharge. The Petitioner filed application as CMP No. 1661/2009. The learned trial Judge disallowed the request for discharge. Aggrieved by the said order disallowing discharge, the 4th accused has come up in revision.

The specific allegation as against the Petitioner and some others is that, they did not properly supervise the work or assess the quality of work, and that by their culpable omission and breach of duty, they caused heavy loss to the Public Exchequer, and also caused unlawful gain and benefit to the contractor.

The request for discharge was disallowed by the trial court on the finding that, there are prima facie materials against the Petitioner to frame charge. A discharge is possible only when the Court finds, on a perusal of the materials placed before it, that the charge appears to be groundless, or that the materials produced by the prosecution are not sufficient to form a judicious opinion as to whether there is reason to frame a charge against the accused and to proceed against him.

The prosecution relies mostly on documents, including M-Books, to substantiate or prove the allegations as against the petitioner. What are the entries relating to the Petitioner, or how those entries will prove the alleged misconduct, or culpable omission, or how exactly the petitioner caused wrongful gain to the contractor by his omissions, or whether he did it as part of a criminal design hatched with the contractor, are all matters to be examined during trial.

This is a revision, wherein, the scope of interference is limited. The factual aspects of the case cannot be examined by the High Court in a revision. Only when the factual aspects are mixed with the legal aspects, and the decision on the legal aspects will conclude the issue as against the petitioner, the High Court can examine those aspects in revision. Here, everything depends upon the registers and the entries therein, produced by the prosecution. Only the competent witnesses can prove those entries as against the petitioner, and tell the court or convince the court how exactly those entries or omissions will prove the prosecution case.

At this stage, the High Court cannot examine those aspects, and come to a conclusion or finding, as to whether those entries are sufficient to prove the case, or whether those entries are acceptable. Only the trial Court can examine those aspects, and decide whether such materials are acceptable to come to a finding against the accused. In the result, this revision petition is dismissed without prejudice to the right of the Petitioner to raise all his factual and legal objections regarding the facts of the case, before the trial court.

Tags : Discharge Disallowance Validity

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