Kerala High Court
G.Vipinan vs State Of Kerala on 19 May, 2025
2025:KER:33955
Crl.R.P.Nos.933/2019, 476 & 505/2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 19TH DAY OF MAY 2025 / 29TH VAISAKHA, 1947
CRL.REV.PET NO. 933 OF 2019
AGAINST THE ORDER DATED 24.04.2019 IN CRL.M.P.NO.56/2018 IN SC
NO.1357 OF 2013 OF SPECIAL JUDGE,(SPE/CBI), THIRUVANANTHAPURAM
REVISION PETITIONER/REVISION PETITIONER /INJURED, DEFACTO COMPLAINANT
V.B.UNNITHAN,
AGED 47 YEARS,
S/O.LATE VASUKURUP, MATTATHU HOUSE,
MANAKKARA, SASTHAMKOTTA,
KOLLAM DISTRICT, PIN-690521.
BY ADVS. T.A.UNNIKRISHNAN
SRI.K.K.AKHIL
SMT.ANUSHA P SIVANANDAN
ARJUN VARMA(K/1436/2021)
T. SREELAKSHMI UNNIKRISHNAN(K/001168/2022)
RESPONDENT/STATE, INVESTIGATING AGENCY, 5TH ACCUSED:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.
2 CENTRAL BUREAU OF INVESTIGATION,
REPRESENTED BY ITS STANDING COUNSEL,
HIGH COURT OF KERALA, KOCHI PIN-682 031.
3 N.ABDUL RASHEED
S/O.MYTHEENKUNJU NOOHU KANNU, VARIKOLIL VADAKETHIL,
VENGARA, THODIYOOR NORTH, KARUNAGAPPALLY,
KOLLAM DISTRICT, KERALA,
PRESENTLY WORKING AS SUPERINTENDENT OF POLICE, CRIMES,
CB, CID, THIRUVANANTHAPURAM, PIN-690523.
BY ADVS.SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI. K.P. SATHEESAN (SR), CBI
S.RAJEEV FOR R3
K.K.DHEERENDRAKRISHNAN
V.VINAY
2025:KER:33955
Crl.R.P.Nos.933/2019, 476 & 505/2021
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D.FEROZE
K.ANAND (A-1921)
N.N.GIRIJA
SREELAL WARRIAR FOR R2
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
07.03.2025, ALONG WITH CRL.REV.PET.476/2021 AND 505/2021, THE COURT
ON 19.05.2025 PASSED THE FOLLOWING:
2025:KER:33955
Crl.R.P.Nos.933/2019, 476 & 505/2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 19TH DAY OF MAY 2025 / 29TH VAISAKHA, 1947
CRL.REV.PET NO. 476 OF 2021
AGAINST THE ORDER DATED 24.04.2019 IN CMP NO.56/2018 IN SC
NO.1357 OF 2013 OF SPECIAL JUDGE FOR CBI CASES, THIRUVANANTHAPURAM
REVISION PETITIONER/COMPLAINANT:
CENTRAL BUREAU OF INVESTIGATION,
SCB, THIRUVANANTHAPURAM,
REPRESENTED BY RETAINER COUNSEL HIGH COURT OF KERALA,
ERNAKULAM.
BY ADVS.SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SREELAL WARRIAR
K.P.SATHEESAN (SR.)(S-242)
RESPONDENT/ACCUSED NO.5:
N.ABDUL RASHEED,
S/O. MYTHEENKUNJU NOOHU KANNU,
VANKOLIL VADAKETHIL, VENGARA,
THODIYOOR NORTH, KARUNAGAPPALLY,
KOLLAM DISTRICT, KERALA,
PRESENTLY WORKING AS SUPERINTENDENT OF POLICE,
CRIMES, CB, CID, THIRUVANANTHAPURAM-695001.
BY ADVS.K.P. SATHEESAN (SR) FOR CBI
S.RAJEEV S FOR R1
V.VINAY(K/355/2009)
M.S.ANEER(K/644/2013)
SARATH K.P.(K/001467/2021)
PRERITH PHILIP JOSEPH(K/000736/2015)
B.RAMAN PILLAI (SR.)(R-260)
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
07.03.2025, ALONG WITH CRL.REV.PET.933/2019 AND CONNECTED CASES, THE
COURT ON 19.05.2025 PASSED THE FOLLOWING:
2025:KER:33955
Crl.R.P.Nos.933/2019, 476 & 505/2021
-:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 19TH DAY OF MAY 2025 / 29TH VAISAKHA, 1947
CRL.REV.PET NO. 505 OF 2021
AGAINST THE ORDER DATED 24.04.2019 IN CRL.M.P.NO.56/2018 IN SC
NO.1357 OF 2013 OF THE SPECIAL JUDGE (SPE/CBI),THIRUVANANTHAPURAM
PETITIONER/3RD PARTY:
G.VIPINAN,
AGED 67 YEARS,
S/O GANGADHARAN VAIDHYAN,
PADMAVILAS,MUNDAKKAL WEST,KOLLAM.
BY ADVS. V.JOHN SEBASTIAN RALPH
PREETHY KARUNAKARAN
RESPONDENT/STATE/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM-682020.
2 THE SUPERINTENDENT OF POLICE,
CENTRAL BUREAU OF INVESTIGATION, SPECIAL CRIME
BRANCH,THIRUVANANTHAPURAM-695001.
3 S.JAI KUMAR,
SUPERINTENDENT OF POLICE,CENTRAL BUREAU OF INVESTIGATION
(CBI),JOINT DIRECTOR,ZONE-I, CBI,13TH FLOOR,PLOT
NO.C-35A,'G'BLOCK,BANDRA KURLA COMPLEX(BKC),
NEAR MTNL EXCHANGE, BANDRA(EAST),MUMBAI-400098.
4 K.J.DARWIN,
DEPUTY SUPERINTENDENT OF POLICE(CBI),
SPECIAL CRIME BRANCH,
THIRUVANANTHAPURAM-695001.
5 THE SUPERINTENDENT OF POLICE,
SPECIAL CRIME BRANCH,
THIRUVANANTHAPURAM-695001.
2025:KER:33955
Crl.R.P.Nos.933/2019, 476 & 505/2021
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6 THE JOINT DIRECTOR,
CENTRAL BUREAU OF INVESTIGATION(CBI),
JOINT DIRECTOR AND HEAD OF ZONE,III FLOOR,E.V.K,
SAMPATH BUILDING,COLLEGE ROAD,
CHENNAI-600006.
7 N.ABDUL RASHEED,RETIRES SP,
S/O MYTHEENKUNJU NOOHUKANNU, SHALIMAR,
ANJALI NAGAR,PALLITHOTTAM,
KOLLAM WEST-691006.
BY ADVS. K.P. SATHEESAN (SR) FOR CBI
ANANDA PADMANABHAN
SREELAL WARRIAR
S.RAJEEV S FOR R7
V.VINAY(K/355/2009)
M.S.ANEER(K/644/2013)
PRERITH PHILIP JOSEPH(K/000736/2015)
SARATH K.P.(K/001467/2021)
VIVEK NAIR P.(K/1216/2021)
BABU S. NAIR(K/1302/1995) FOR R3
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON
07.03.2025, ALONG WITH CRL.REV.PET.933/2019 AND CONNECTED CASES, THE
COURT ON 19.05.2025 PASSED THE FOLLOWING:
2025:KER:33955
Crl.R.P.Nos.933/2019, 476 & 505/2021
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COMMON ORDER
The order dated 24.04.2019 in Crl.M.P.No.56/2018 in S.C.No.1357/2013 on the files of the Court of the Special Judge (SPE/CBI), Thiruvananthapuram, is under challenge in these revisions. By the aforesaid order, the learned Special Judge had discharged the fifth accused in the said case under Section 227 of the Code of Criminal Procedure, 1973 (in short, 'Cr.PC'). Crl.R.P.No.933/2019 is filed by the de facto complainant, and Crl.R.P.No.476/2021 by the investigating agency (CBI). Crl.R.P.No.505/2021 is filed by a third party who claims to be a senior journalist residing at Kollam.
2. The facts of the case, in conspectus, are as follows:
The fourth and fifth accused in S.C.No.1357/2013 are Police Officers of Kerala Police of the rank Dy.SPs, under suspension. One Mr V. Babu Unnithan, staff reporter of Mathrubhumi Daily, Kollam, was a thorn in the eye of some Police Officers since he used to expose their nefarious activities. He had published news on 12.09.2008 regarding the encroachment of lake by Police Officials, including the fourth accused Dy.SP. Santhosh Nair, who was Circle Inspector during that time. On 13.10.2009, the de facto complainant published another news item in Mathrubhumi daily regarding the licentious behaviour of the fourth accused and two other Police officers at Government Guest House, Kollam, in the night of 11.10.2009, along with some cine/serial 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:7:- actresses and Abkari Contractors, leading to the transfer of the fourth accused to northern Kerala. The fourth accused was nurturing enmity with the de facto complainant due to the above reason. The fifth accused, Dy.SP. Abdul Rasheed,who was the batchmate of the fourth accused, had gone for a family tour to Goa along with the fourth accused and one Santhosh Kumar @ Container Santhosh, an approver turned accused in S.C.No.1357/2013, from 25.12.2010 to 27.12.2010.
During that time, the fourth and fifth accused had conspired with the above said Container Santhosh, who was having close links with goons and hardcore criminals, for inflicting bodily harm upon the de facto complainant. While returning from Goa on 27.12.2010 by Rajdhani Express, the fifth accused had pulled the chain of the train at Kollam and caused it to stop there, since the said train had no stop at Kollam. This resulted in altercations between the fifth accused and the Locopilot at the time when the fifth accused deboarded the train at Kollam along with his family. The de facto complainant published the above highhanded act of the fifth accused in Mathrubhumi daily dated 02.01.2011. Due to the above reason, the fifth accused also wanted to take avenge upon the de facto complainant by causing bodily harm to him. Accordingly, the accused Nos.4 & 5 persistently compelled the approver Container Santhosh to make use of his connections with goondas and hardcore criminals to mount severe physical assault upon the de facto complainant. Container Santhosh assigned the above task upon one Sreejith @ Rajesh @ Happy Rajesh, a person actively involved in criminal activities. As a consequence of the above criminal conspiracy, the de facto complainant was attacked with deadly 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:8:- weapons at a place called Sasthamcotta in Kollam District by about eight persons at 9:45 p.m. on 16.04.2011 leading to serious injuries including multiple fractures throughout his body. Though the Sasthamcotta Police registered Crime No.441/2011 in connection with the said incident, the investigation was soon taken over by the CBCID, Kollam, where the fifth accused was working as Dy.SP. At a time when the needle of suspicion was turning towards Dy.SP. Santhosh Nair (A4), Happy Rajesh and Container Santhosh, the dead body of Happy Rajesh was found in his auto rickshaw on 28.04.2011 at Kollam. Soon, accused Nos.1 to 3 who had attacked the de facto complainant, were arrested by the CBCID team, where the fifth accused was also working. As the accused Nos.1 to 3 made disclosures on interrogation about the involvement of Container Santhosh, the investigating team started tracking him. While so, Container Santhosh surrendered before the Judicial First Class Magistrate Court, Thiruvalla, on 17.05.2011, and he was remanded to judicial custody. Soon the fourth accused was arrested, since the investigation revealed that it was he who executed the crime by availing the services of late Happy Rajesh and accused Nos.1 to 3 through Container Santhosh. During the transit of Container Santhosh in connection with the procedures of investigation, he proclaimed that in addition to the fourth accused, the fifth accused was also there behind the attack upon the de facto complainant. This led to widespread demand from the Journalists' Community to handover the case to CBI. Accordingly, the investigation was taken over by the CBI as per G.O.No.164/2011/Home dated 25.07.2011. Thereafter the fifth accused was arrested, and steps were taken for 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:9:- making Container Santhosh an approver. On the basis of the application submitted by the Investigating Officer, the learned Chief Judicial Magistrate, Ernakulam, tendered pardon to Container Santhosh and passed the order on 07.05.2012 directing the examination of Container Santhosh as a prosecution witness. After the completion of the investigation, the Additional Superintendent of Police, CBI, SCB, Chennai, filed a final report before the Chief Judicial Magistrate Court, Ernakulam, on 03.07.2012 against accused Nos.1 to 5 with Container Santhosh as an approver. Later on, the Deputy Superintendent of Police, SCB, CBI, SPE, conducted further investigation in the case and filed a supplementary final report on 07.11.2017 arraigning one more person as sixth accused, and brought on record two other approvers. In the above supplementary final report, the Investigating Officer stated that the approver Container Santhosh had not made full and true disclosures while giving statement under Sections 164(1) & 306(4) Cr.PC, and hence, a petition was filed before this Court to quash the pardon granted to him. It was further stated thereunder that the aforesaid petition was disposed of by this Court with the observation that it is a matter to be dealt with by the Trial Court in accordance with law. It is thereafter that the fifth accused filed Crl.M.P.No.56/2018 before the learned Special Judge, seeking discharge under Section 227 Cr.PC.
3. The learned Special Judge, in the impugned order, found that there was absolutely no material other than the statements of approver Container Santhosh, to proceed against the fifth accused in connection 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:10:- with the accusations levelled against him. It was further observed by the learned Special Judge that the statement of approver Container Santhosh cannot be relied on for framing charges against the fifth accused since the investigating agency itself had disowned him and found that he had given false and fabricated statements. After dealing with the statements of other witnesses which the prosecution cited as CW8, CW38, CW61, CW74 & CW157, the learned Special Judge held that there is absolutely nothing in those statements to proceed against the fifth accused in connection with the crime involved in that case. The learned Special Judge also adverted to the statements of CW50, CW52 & CW154 to conclude that approver Container Santhosh wanted to falsely implicate the fifth accused in the crime since he did not budge to the pressure exerted by the fourth accused and Container Santhosh to exculpate them at the initial stages of investigation while the CBCID was investigating the case. The statements of CW85 & CW132, the Superintendent and Deputy Superintendent of Police, respectively, of CBCID, Kollam, are referred by the learned Special Judge to hold that the accused Nos.1 to 3 were actually nabbed by the fifth accused, and that he had been impartially associated with the investigation in this case at the request of the IG concerned, who was supervising the investigation. It is on the basis of 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:11:- the aforesaid observations that the learned Special Judge allowed the application of the fifth accused and discharged him.
4. Heard the learned counsel for the petitioners in Crl.R.P.Nos.933/2019 & 505/2021, the learned counsel for the fifth accused (R3 in Crl.R.P.No.933/2019, R7 in Crl.R.P.No.505/2021 and the sole respondent in Crl.R.P.No.476/2021) and also the learned Standing Counsel for CBI who represented the petitioner in Crl.R.P.No.476/2021.
5. As rightly observed by the learned Special Judge in the impugned order, the only material to link the fifth accused with the crime alleged in S.C.No.1357/2013 is the statement given by approver Container Santhosh. According to the above approver, he got acquainted with the fifth accused through the fourth accused Dy.SP, Santhosh Nair, a batchmate of the fifth accused, with whom he was having close family friendship. It is stated that the fifth accused also joined the fourth accused in the conspiracy to inflict bodily harm upon the de facto complainant who persistently caused headache to the fourth accused and certain other Police Officers by reporting their dubious activities. The fifth accused is said to have become more particular to take avenge upon the de facto complainant after the report published by the de facto complainant in Mathrubhumi daily about the incident wherein the fifth 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:12:- accused pulled the chain of Rajdhani Express and got it stopped in Kollam for facilitating his deboarding on 27.12.2010 during his return from Goa. After inflicting severe physical assault upon the de facto complainant, causing serious injuries to him on 16.04.2011, when the needle of suspicion turned towards Container Santhosh, the fifth accused is stated to have appealed to Container Santhosh on several occasions not to disclose his name to the investigating agency. It is further stated by the approver that the fourth accused and fifth accused, along with him, had assembled in a hotel by name 'Aquaserene' at Paravoor on 29.04.2011 to celebrate the attack on the de facto complainant.
6. It is true that the above version of the approver Container Santhosh in the statements tendered by him under Sections 164(1) & 306(4) Cr.PC are enough to conclude that there existed sufficient grounds to proceed against the fifth accused in connection with the offences under Section 120B read with Section 307, 326 & 511 of the Indian Penal Code, 1860, read with Section 201 IPC and the substantial offences thereunder, slapped against him. However, the fact of the matter which requires serious consideration is that, after the filing of supplementary final report by the investigating agency after further investigation, they do not want to permit Container Santhosh to retain his 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:13:- status as approver. Instead, the investigating agency was eager to proceed against Container Santhosh as an accused in the crime. It is for the above purpose that the CBI approached this Court by filing Crl.M.C.No.1544/2016 with a prayer to to quash the order passed by the Chief Judicial Magistrate, Ernakulam, on 07.05.2012 granting pardon to Container Santhosh, and accepting him as an approver. It is apposite to extract hereunder paragraph No.13 in Crl.M.C.No.1544/2016 to show the stand of the investigating agency after the further investigation, vis-a-vis the reliability and trustworthiness of the statements given by approver Container Santhosh.
"Annexure-A1 order tendering pardon to accused respondent is established to be on the basis of the false and deceptive disclosure statements caused to be recorded u/s 164(1) Cr.PC and 306 Cr.PC tendered by the respondent. He had deceptively refrained from making a full disclosure of the crime occurrences, with a mala fide intention to exculpate himself and his three quotation gang murderers from legal punishment. The respondent has per se deceived the investigating agency and the court. Ext.A1 is unsustainable in the eye of law and led to travesty of justice. It is illegal and unsustainable in the eye of law and justice had become a causality by tendering respondent the status of approvership."
6. It is clear from the tenor of the contentions raised by the investigating agency in the aforesaid application filed before this Court 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:14:- that they no more wanted to attribute any sanctity or credence to the statements tendered by approver Container Santhosh while he was being examined under Sections 164(1) & 306(4) Cr.PC. So also, the investigating agency lost confidence in approver Container Santhosh, and they were having the least expectation that the above approver would give a true and full disclosure of the crime at the time of trial. It is due to the above reason that the investigating agency sought the involvement of this Court to quash the order of the learned Chief Judicial Magistrate, tendering pardon to Container Santhosh. However, the above application of the investigating agency was not allowed by this Court since the violation of the condition by the approver, for making full and true disclosure of the crime, was a matter to be considered by the Trial Court in accordance with the provisions contained in Section 308 Cr.PC. The question which now crops up is whether the prosecution could say that the Trial Court has to consider the above tainted statement of approver Container Santhosh for framing charges against the fifth accused. The answer is nothing but an emphatic 'No' since the prosecution no more wants to consider the above person as an approver. In other words, the status which the prosecution wants to attribute to Container Santhosh, after the further investigation, is as one of the key accused in the crime 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:15:- and not as an approver. Insisting on placing reliance upon the statement of the above person for framing charges would thus amount to urging the Court to rely on the statement of the co-accused to frame charges against the fifth accused.
7. Going by the scheme of Sections 306, 307 & 308 Cr.PC, once an accomplice is granted pardon, he stands discharged as an accused and becomes witness for the prosecution. As a necessary corollary, once the pardon is withdrawn or forfeited upon the certificate given by the Public Prosecutor that such person has failed to comply with the condition on which the tender was made, he is reverted to the position of an accused and liable to be tried separately, thereby rendering the evidence given by him totally inadmissible. The proposition of law in the above regard has been laid down by the Hon'ble Supreme Court in State of Maharashtra v. Abu Salem Abdul Kayyum Ansari [(2010) 10 SCC 179] as follows:
"20. In State (Delhi Admn.) v. Jagjit Singh [1989 Supp (2) SCC 770 : 1990 SCC (Cri) 133] this Court held as under: (SCC pp. 773-74, para 8)
"8. ... The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon. Hence a pardoning power can attach any condition, precedent or subsequent so long as it is not illegal, immoral or impossible of performance.
2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:16:- Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof. It is because of this mandate, the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the committing court as well as in the trial court. The approver may have resiled from the statement made before the Magistrate in the committing court and may not have complied with the condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial court. It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under Section 308 of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences."
21. The above statement of law in Jagjit Singh [1989 Supp (2) SCC 770 :
1990 SCC (Cri) 133] cannot be understood as laying down that an accomplice who has been tendered pardon and called as a witness for the prosecution must be continued to be examined as a prosecution witness although he has failed to comply with the condition on which the tender of pardon was made and a Public Prosecutor certifies that he has not complied with the condition on which the tender was made. As a matter of fact, in Jagjit Singh case [1989 Supp (2) SCC 770 : 1990 SCC (Cri) 133] no certificate was given by the Public Prosecutor. The legal position that flows from the provisions contained in Sections 306, 307 and 308 CrPC is that once an accomplice is granted pardon, he stands discharged as an accused and becomes witness for the prosecution. As a necessary corollary, once the pardon is withdrawn or 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:17:- forfeited on the certificate given by the Public Prosecutor that such person has failed to comply with the condition on which the tender was made, he is reverted to the position of an accused and liable to be tried separately and the evidence given by him, if any, has to be ignored in toto and does not remain legal evidence for consideration in the trial against the co-accused, albeit such evidence may be used against him in the separate trial where he gets an opportunity to show that he complied with the condition of pardon. As a matter of fact, it is for this reason that a specific statement was made by the counsel for the State of Maharashtra before us--a similar statement was made before the Designated Court as well--that the evidence of Respondent 3 so far recorded shall not be used by the prosecution in the present trial."
8. It is true that, in the case on hand, the procedure envisaged under Section 308 Cr.PC is yet to be followed, with the Public Prosecutor certifying that in his opinion approver Container Santhosh has not complied with the condition on which the tender was made, and hence, he is liable to be tried for the offence in respect of which the pardon was so tendered. The above course could be adopted only after the framing of the charges, followed by the commencement of trial. But if charges are framed against the fifth accused based on the statement of approver Container Santhosh, and subsequently proceedings are initiated against the approver under Section 308 Cr.PC by withdrawing the tender of pardon and directing him to face the trial, the fifth accused would be put to the precarious position of charges having been framed against him 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:18:- solely on the basis of the statements given by a co-accused. No doubt, such a course could never be termed as one in consonance with the principles of law in this regard. The proposition of law in this regard has been laid down by the Hon'ble Apex Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat [(2019) 16 SCC 547] wherein it has been held in paragraph Nos.52 to 54 as follows:
"52. If the statement made by the appellant on 11-4-1996 is inadmissible, then, there will only be the statement of the co-accused available to be considered in deciding whether the charge has to be framed against the appellant or not. It is here that the law laid down by this Court in Suresh Budharmal Kalani [Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337 : 1998 SCC (Cri) 1625] becomes applicable.
53. We also notice the following statement in the judgment rendered by the Bench of seven learned Judges in Haricharan Kurmi v. State of Bihar [Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 at p. 1188 : (1964) 2 Cri LJ 344] : (AIR p. 1184) "As a result of the provisions contained in Section 30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:19:- formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.
Thus, the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusions deducible from the said evidence. ... In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt."
54. Proceeding on the basis that it is a confession by a co-accused and still proceeding further that there is a joint trial of the accused and that they are accused of the same offences (ignoring the fact that other accused are absconding and the appellant appears to be proceeded against on his own) and having found that there is no recovery from the residence of the appellant of the counterfeit notes and that there is no other material on the basis of which even a strong suspicion could be aroused, we would find that the mandate of the law requires us to free the appellant from being proceeded against. Accordingly, we allow the appeal and the petition filed under Section 482 CrPC. The order impugned passed by the Sessions Judge framing the charge against the appellant will stand set aside and the appellant will stand discharged."
9. Therefore, the decision of the learned Special Judge, not to rely on the statements of the approver Container Santhosh, while deciding the point whether there is sufficient ground for proceeding 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:20:- against the fifth accused, is perfectly in consonance with the settled position of law.
10. As rightly observed by the learned Special Judge in the impugned order, the statements of CW8, CW38, CW61, CW74 & CW157 are devoid of any indications capable of creating even an inference that the fifth accused was involved in the conspiracy which resulted in the attack upon the de facto complainant on 16.04.2011. CW8 is none other than the de facto complainant himself, who has no direct knowledge as to the involvement of the fifth accused in the crime. As far as CW38, the driver of Container Santhosh is concerned, the stray remark of the said witness that the fifth accused had told him that if the approver contacted him he should convey the message not to disclose the name of accused Nos.4 & 5, could not be taken as a circumstance to infer the complicity of the fifth accused in the crime. So also, the statement tendered by CW61, the wife of the fourth accused, does not contain anything to show that the fifth accused was involved in the conspiracy which resulted in the attack on the de facto complainant. The statement of CW74, a Sub Inspector of RPF, Kollam, about the case registered by him for pulling the chain of Train No.12342 on 28.12.2010 against an unknown person and the submission of closure report thereafter, cannot be taken as an 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:21:- incriminating circumstance against the fifth accused. Likewise, the statement of CW157, a Deputy Editor of Mathrubhumi daily, about the reporting of news about the pulling of chain of train Rajdhani Express by the fifth accused, cannot by itself show that the fifth accused was part of the conspiracy hatched to mount physical attack upon the de facto complainant. Thus, the learned Special Judge has rightly concluded that there was total dearth of materials to frame charges against the fifth accused in the crime involved in this case.
11. The law is trite that mere surmises and conjectures cannot form the basis for framing charges against an accused. In Satish Mehra v. State (NCT of Delhi) [(2012) 13 SCC 614] the Hon'ble Apex Court held as follows in paragraph No.21 of the judgment.
"21. A criminal trial cannot be allowed to assume the character of a fishing and roving enquiry. It would not be permissible in law to permit a prosecution to linger, limp and continue on the basis of a mere hope and expectation that in the trial some material may be found to implicate the accused. Such a course of action is not contemplated in the system of criminal jurisprudence that has been evolved by the courts over the years. A criminal trial, on the contrary, is contemplated only on definite allegations, prima facie, establishing the commission of an offence by the accused which fact has to be proved by leading unimpeachable and acceptable evidence in the course of the trial against the accused. We are, therefore, of the view that the criminal proceeding in the present form and on the allegations levelled is clearly not maintainable against either of the appellant-accused G.K. Bhat and R.K. Arora."
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12. In L. Krishna Reddy v. State [(2014) 14 SCC 401] the Hon'ble Supreme Court had reminded the bounden duty of the Court to sift through the material to ascertain whether a prima facie case has been established which would justify and merit the prosecution of a person. The relevant observation in paragraph No.11 of the judgment in the said case is extracted hereunder:
"11. The court is neither a substitute nor an adjunct of the prosecution. On the contrary, once a case is presented to it by the prosecution, its bounden duty is to sift through the material to ascertain whether a prima facie case has been established which would justify and merit the prosecution of a person. The interest of a person arraigned as an accused must also be kept in perspective lest, on the basis of flippant or vague or vindictive accusations, bereft of probative evidence, the ordeals of a trial have to be needlessly suffered and endured. We hasten to clarify that we think the statements of the complainant are those of an anguished father who has lost his daughter due to the greed and cruelty of his son-in-law. As we have already noted, the husband has taken his own life possibly in remorse and repentance. The death of a child even to avaricious parents is the worst conceivable punishment."
13. On going through the impugned order of the learned Special Judge, it is seen that the parameters laid down by the Hon'ble Apex Court for arriving at the conclusion as to whether there were sufficient grounds to proceed against the accused for the purpose of framing charges against him, have been strictly followed in the case on hand. That apart, the learned Special Judge is seen to have scrutinised the evidence 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:23:- tendered by CW50, CW52 & CW154 which contained clear indications that the approver Container Santhosh nurtured enmity with the fifth accused for not budging to the demand of him and the fourth accused to hush up the case against them at the initial stages of investigation, when the CBCID was at the helm of affairs. The statements of CW85 Sam Christy Daniel, SP, CBCID, Kollam, and CW132 Rajagopal, Dy.SP, CBCID, Kollam, are also seen referred by the learned Special Judge to point out that the fifth accused who was in the goodbooks of the higher police officials, got involved in the initial stages of investigation as directed by the IG, who was overseeing the investigation of CBCID. Thus, it could be seen that all the relevant materials and inputs pertaining to the involvement of the fifth accused in the investigation in this crime, as well as the indictment against him, were taken into account by the learned Special Judge. There is absolutely no reason to conclude that the impugned order passed by the learned Special Judge is vitiated by any illegality, impropriety or mistake. Hence, I find no ground to interfere with the said order, in exercise of the revisional jurisdiction of this Court.
In the result, the revision petitions are hereby dismissed. The Registry is directed to transmit the Trial Court records called for in 2025:KER:33955 Crl.R.P.Nos.933/2019, 476 & 505/2021 -:24:- Crl.R.P.No.933/2019 to the learned Special Judge for immediate commencement of the trial against the other accused.
(sd/-)
G. GIRISH, JUDGE
DST
2025:KER:33955
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APPENDIX OF CRL.REV.PET 505/2021
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE PETITION DATED 16.4.2012
ANNEXURE A2 TRUE COPY OF THE FINAL REPORT DATED 3.7.2012
ANNEXURE A3 TRUE COPY OF THE ORDER DATED 10.9.2012 IN
CRL.M.P.NO.2230/2012
ANNEXURE A4 TRUE COPY OF THE JUDGMENT DATED 19.9.2012 IN
WP(C)NO.21384/2012
ANNEXURE A5 TRUE COPY OF JUDGMENT DATED 5.7.2013 IN OP
CRL.NO.2123/2013
ANNEXURE A6 TRUE COPY OF CRL.M.P.NO.158 OF 2013 DATED
21.10.2013
ANNEXURE A7 TRUE COPY OF THE OBJECTION DATED 4.1.2014
ANNEXURE A8 TRUE COPY OF THE REPORT DATED 15.3.2014
ANNEXURE A9 TRUE COPY OF THE ORDER DATED 3.7.2014 IN
CRL.M.P.NO.125/2014
ANNEXURE A10 TRUE COPY OF THE COMMON JUDGMENT DATED
27.6.2017 IN CRL.M.C.NO.1554/2016
ANNEXURE A11 TRUE COPY OF THE SUPPLEMENTARY FINAL REPORT
DATED 7.11.2017
ANNEXURE A12 TRUE COPY OF THE ORDER DATED 9.1.2019 IN
CRL.M.C.NO.174/2019
ANNEXURE A13 TRUE COPY OF THE ORDER IN SUPPLEMENTARY FINAL
REPORT DATED 16.3.2019
ANNEXURE A14 TRUE COPY OF THE ORDER DATED 24.4.2019 IN
CRL.M.P.NO.56/2018 IN S.C.1357/2013 OF THE
HON'BLE SPECIAL COURT (SPE/CBI)
THIRUVANANTHAPURAM
ANNEXURE A15 TRUE COPY OF CRL.M.P.NO.72/2019
ANNEXURE A16 TRUE COPY OF LIST OF WITNESSES.
ANNEXURE A1 TRUE COPY OF THE EMAIL LETTER DATED 24/01/24 TO
THE HON'BLE CHIEF JUSTICE OF KERALA ALONG WITH
ENGLISH TRANSLATION
ANNEXURE A2 THE COPY OF THE EMAIL FORWARDED TO THE
REGISTRAR, HIGH COURT OF KERALA DATED
19/02/2024
2025:KER:33955
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APPENDIX OF CRL.REV.PET 933/2019
ANNEXURE R3(a) A TRUE COPY OF THE FIR IN CRIME NO.441/2011 OF
SASTHAMCOTTA POLICE STATION, KOLLAM DISTRICT
ANNEXURE R3(b) A TRUE COPY OF THE FIR IN CRIME NO.RC
1(S)/2012/CBI/SCB/CHENNAI OF CBI
ANNEXURE R3(c) THE PETITION SUBMITTED BY CBI FOR CONDUCTING
FURTHER INVESTIGATION BEFORE THE COURT BELOW
DATED 15.03.2014
ANNEXURE R3(d) PETITION SUBMITTED BY CBI FOR REMOVING
CONTAINER SANTHOSH FROM ARRAY OF THE ACCUSED
BEFORE THIS HONOURABLE COURT
ANNEXURE R3(e) SUPPLEMENTARY CHARGE SHEET SUBMITTED BY CBI
DATED 07.11.2017
ANNEXURE R3(f) OBJECTION SUBMITTED BY CBI OPPOSING THE BAIL
APPLICATION FILED BY CONTAINER SANTHOSH IN
HAPPY RAJESH MURDER CASE BEFORE DISTRICT AND
SESSIONS COURT, ERNAKULAM
ANNEXURE R3(g) THE PETITION SUBMITTED BY THIS RESPONDENT TO
DISCHARGE HIM FROM THE CASE BEFORE THE HON'BLE
SPECIAL JUDGE CBI, THIRUVANANTHAPURAM
ANNEXURE R3(h) THE RECOMMENDATION MADE BY THE SUPERINTENDENT
OF POLICE REQUESTING THE ADDITIONAL DIRECTOR
GENERAL OF POLICE, CRIMES, THIRUVANANTHAPURAM
TO AWARD BADGE OF HONOUR TO THE PETITIONER
HEREIN
ANNEXURE R3(i) RELEVANT 161 STATEMENTS OF CW 50(SHAFI), CW52
(SEBASTIAN LOUIS), CW 67(RADHAKRISHNA PILLAI), CW85(SAM CHRISTY DANIEL), CW 103 (MANOJ), CW 108(NOUFAL), CW 104(VINEESH), CW116 (PRADEEP KARUNAKARAN), CW 126(DEEPU), CW129 (RAJAGOPAL), CW130 (GOPALAKRISHNA PILLAI), CW 131 (S.SREEJITH IPS), CW 132 (D.RAJAGOPAL), CW162 (RAMESH @ RAMU), CW163 (TAHA), THE WITNESSES SUBMITTED BY CBI ALONG WITH THE FINAL REPORT.