IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 Crl.Rev.Pet.No. 1043 of 2007(A) ------------------------------- CC.40/2002 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... REVN. PETITIONER(S): ACCUSED. ----------------------------- DR.A.P.ABDUL KHADER, S/O.AMMEDKUTTY HAJI, SANTHINAGAR HOUSING COLONY, SULTHAN BATHERY. BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.SOJAN MICHEAL RESPONDENT(S): COMPLAINANT. --------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI C M KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 1043 OF 2007 ............................................ DATED THIS THE 22nd DAY OF OCTOBER, 2008 ORDER Petitioner is the accused in C.C.40 of 2002 on the file of Special Judge, Kozhikode. The case was chargesheeted by the Dy.S.P of Vigilance and ACP, Wayanad, after investigation, which was taken cognizance by the Special Judge. After hearing the prosecution and the defence, learned Special Judge framed charge against petitioner for the offence under Section 7 and 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act. Prosecution case is that petitioner being Assistant Surgeon of Government Taluk Headquarters Hospital, Sultan Bathery, and being a public servant, committed criminal misconduct by accepting a bribe of Rs.300/- from CW1, Kuttappan on 18.7.2000 at about 5.30 pm and thereby committed the offence. Petitioner was arrested after a trap laid by the Investigating Officer. The order framing charge is challenged in this petition filed under Section 397 read with 401 of Code of Criminal Procedure. 2. Learned senior counsel appearing for petitioner and learned Public Prosecutor were heard. 3. Learned senior counsel argued that learned Special CRRP 1043/2007 2 Judge did not properly consider the materials available with him and mechanically framed the charge, when in fact there are no materials to convict petitioner for the offence charged. It was argued that the case of the prosecution is that for conducting the Post partum sterilization operation of Omana, wife of CW1, petitioner demanded Rs.500/- on 12.7.2000 and thereafter demand was repeated and when CW1 expressed his inability to pay the same on 17.7.2000, the amount was reduced to Rs.300/- and though the surgery was performed, petitioner demanded the amount for discharing Omana, and therefore Rs.300/- being the bribe was paid at 5.30 pm on 18.7.2000 from his consulting room at Kakkodans Tourist Home, Sulthan Bathery after reporting to the Vigilance and materials available with the court establish that Omana, wife of CW1 was discharged at 11 am on 18.7.2000 itself and therefore Rs.300/- even if paid by CW1 as alleged by the prosecution could not be either for conducting the surgery or for discharge as both were over before the alleged payment of bribery and therefore Section 7 of Prevention of Corruption Act is not attracted. Learned senior counsel pointed out that petitioner is admittedly a Doctor, who is entitled to have private practice and even if CW1 consulted the petitioner at his CRRP 1043/2007 3 consulting room and paid any amount, it will not constitute an offence under Section 7 or 13(2) of Prevention of Corruption Act and framing of charge is illegal. Learned Public Prosecutor submitted that from the materials available, if they stand unrebutted, petitioner cannot be discharged and therefore there is no reason to interfere with the order framing charge. 4. At this stage, what is to be decided is whether the materials available before the Special Judge, if stand unrebutted, would prima facie establish the charge made against petitioner. It is not for the court at this stage to analyse the evidence and find out whether evidence is sufficient enough to convict the petitioner. If the materials available prima facie show a case, necessarily charge is to be framed. Evidence is to be let in and case is to be decided thereafter. 5. If the materials now available before the Special Court is to be accepted as correct, it shows that Omana, wife of CW1 was admitted in the hospital for the surgery. The statements of CW1 show that petitioner had demanded Rs.500/- first for conducting the surgery and as the amount was not paid, it was reduced to Rs.300/- and as surgery was conducted, the amount was demanded for discharging Omana. The question whether based CRRP 1043/2007 4 on the records produced Omana was discharged at 11 am on 18.7.2000 when the trap was at 5.30 pm, on the same day, it is not possible to hold that no offence under Section 7 of Prevention of Corruption Act is attracted. It is a fact to be decided only after letting in evidence. In such circumstances, I do not find any reason to interfere with the framing of charge by the Special Judge. Petitioner is entitled to take all the defences available to him at the time of trial and it is to be considered by the Special Judge. Revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-