Source: Kerala High Court

Why in News?

Recently, the Kerala High Court in the matter of Vishnu K.B. v. State of Kerala & Anr., held that a notarized affidavit signed by the complainants could not be taken in isolation by the Court so as to discharge the accused.

Background

• The petitioner submitted that the offences alleged in this case are punishable under Sections 143, 147, 148, 341, 323, 324, 326, 308 and 149 of the Indian Penal Code, 1860 (IPC).
• According to the petitioner, he had not committed any of the offences.
• The complainants were aware of the same and they had intimated this fact to the police authorities.
• However, the investigating authorities did not take that into consideration and arbitrarily retained the petitioner in the array of the accused.
• The complainants have no objection in discharging the petitioner from the array of the accused. They have filed an affidavit before a Notary Public for the same.
• The Sessions Court dismissed the petitioner's application for discharge.
• It is against the same that the present revision petition has been filed before the HC of Kerala.
• The petition was dismissed by the HC.

Court’s Observations

• Justice N. Nagaresh observed that a notarized affidavit signed by the complainants exonerating the accused person cannot be taken in isolation to discharge the accused.
• The Court further explained that to discharge an accused person under Section 227 of the Code of Criminal Procedure (CrPC), the Court ought to determine if there are sufficient grounds to proceed against them. If such grounds are found, an order of discharge cannot be passed, and the accused would have to face trial.

Legal Provisions

Section 227 of CrPC

• This Section contains provisions in relation to discharge of an accused. It states that-
  • If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the 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.
• The purpose of this section is to ensure that the Court should be satisfied that the accusations made against the accused are not frivolous and that there is some material for proceeding against the accused.
• In the case of Asim Shariff v. NIA (2019), the Supreme Court held that while examining the discharge application filed under Section 227 CrPC, it is expected that the Trial Judge to exercise his judicial mind to determine as to whether a case for trial has been made out or not. The Court is not supposed to hold a mini trial by marshalling the evidence on record.

Indian Penal Code, 1860 (IPC)

• Section 143:
  • This Section deals with the punishment for being a member of unlawful Assembly.
  • It states that whoever is a member of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
    • Unlawful Assembly is defined under Section 141 of IPC.
• Section 341:
  • This Section states that whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
• Section 326:
  • It states that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to re­ceive into the blood, or by means of any animal, shall be pun­ished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
• Section 308:
  • This Section deals with the attempt to commit culpable homicide. It states that whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.