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2008 DIGILAW 656 (BOM)

Ajit Karunakaran Menon v. State of Maharashtra

2008-05-02

R.Y.GANOO

body2008
JUDGMENT 1. Applicants are presently facing Sessions Case No.72 of 1999 which is presently pending in the Court of Addl. Sessions Judge at Palghar. The applicants herein filed Misc. Application at Exhibit 3 before the learned Addl. Sessions Judge at Palghar for discharge under Section 227 of Cr.P.C. In the said Sessions Case the applicants came to be arrested for charge under Section 395 and 171 of the Indian Penal Code. The case of the prosecution in gist is as follows: 2. On 11th February, 1993 a truck containing certain chemical substances left Bombay to go to Ankleshwar and on Bombay Ahmedabad Road at Pelhar Phata certain persons with Khaki clothes on their person arranged to stop the said truck and thereafter the driver of the truck and the cleaner were made to sit in a fiat car and taken away in the said car. The truck in which the chemical was lying was also taken away. The applicants were arrested under Section 395 and 171 of I.P.C. The present applicants came to be arrested in connection with the said crime and were prosecuted as aforesaid. The present applicants filed the application for discharge which came to be rejected by the learned Addl. Sessions Judge, Palghar by an Order dated 4th January, 2001. Being aggrieved by the said Order dated 4th January, 2001, the applicants herein have filed this revision application. 3. I have heard learned Advocate Ms. Bhojane for the applicants and Ms. Jhaveri for the State. Learned Advocate Ms. Bhojane submitted that in the first place the impugned Order dated 4th January, 2001 is sketchy in as much as the Ld. Addl. Sessions Judge before whom the application under Section 227 was heard and disposed of has not specifically mentioned the material on the basis of which he came to the conclusion that prima facie case is made out against the present applicants. She submitted that bear reference to the memorandum statement purported to have been given by the co-accused is used against the present applicants. According to her the impugned Order is clearly without application of mind and does not spell out specific material which was considered as a material on the basis of which the prosecution made out a case for saying that the applicants were concerned in the offences alleged against them. According to her the impugned Order is clearly without application of mind and does not spell out specific material which was considered as a material on the basis of which the prosecution made out a case for saying that the applicants were concerned in the offences alleged against them. She had taken me through the entire chargesheet and has submitted that there is no whisper against the present applicants which could be considered as the appropriate material to hold that prima facie case was made out against the applicants. She submitted that the application under Section 227 ought to be granted by this Court and the present applicants are required to be discharged. 4. Ld. Advocate Ms. Jhaveri appearing on behalf of the State had to accept that apart from the statement of the present applicant Nos.1 and 2 recorded by the police in the course of investigation there is no other material which can be read on the basis of which one can come to the conclusion that a prima facie case is made out against the applicants and she tried to support the impugned Order and pressed for dismissal of this revision. 5. Having considered the rival submissions, I am inclined to observe that the applicants have made out a case for discharge in the absence of an appropriate material which can be considered by the Court for the purpose of holding that a prima facie case is made out. The statements said to have been rendered by the present applicants in the course of investigation in the normal course cannot form a part of the chargesheet and can not be read by the trial court before whom the matter is pending. Reliance placed by the prosecutor on behalf of the State on the statement of the present applicants is improper and the reliance upon the same by the learned trial Judge was also improper. 6. Learned Advocate Ms.Bhojane was right when she said that the impugned Order passed is sketchy. In the normal course the learned trial Judge ought to have mentioned the statement of certain persons by name or any other circumstance, namely recovery panchanama or other aspects so as to say that the relevant material forms the basis for coming to the conclusion that prima facie case is made out so as to say that the accused cannot be discharged. The learned Addl. The learned Addl. Sessions Judge observed as follows " On careful scrutiny of the entire papers of investigation submitted along with the chargesheet I find that there is also memorandum statement given by some of the accused in pursuance of which the spot of offence was detected and the truck was found. In the circumstances, I feel that this is not a case wherein the accused persons deserve to be discharged during trial. On the contrary, I find that there are sufficient grounds for proceeding further against all the accused persons. Moreover, there are also eye witnesses. It is also driver and cleaner of the truck who had seen the accused persons while removing the truck from their possession and who had forcibly taken them in the fiat car" The aforesaid portion will clearly go to show that the learned trial judge has not mentioned the names of the persons who are said to have given memorandum statements and hence the impugned Order dated 4th January, 2001 is not clear. Apart from this, there has been no identification parade conducted so as to fix the identity of the present applicant as perpetrator of crime. Apart from conducting an identification parade, even identity of the present applicants is not fixed by confronting the witneses with the present applicants. In the substance, the identity of the present applicants as perpetrator of crime is not made out. 7. Considering the entire record which was placed before this Court, there is no material on the basis of which one can come to the conclusion that the applicants are concerned with the crime alleged against them. As such the applicants ought to have been discharged by the learned trial Judge, which he did not do. The discharge application filed by the present applicant is required to be granted in view of the aforesaid discussion. Hence, the Order. ORDER The Order dated 4th January, 2001 passed by the learned Addl. Sessions Judge, Palghar below application at Exhibit 3 is set aside. The application under Section 227 of Cr.P.C. through Exhibit 3 is granted accordingly. The applicants are discharged from Sessions Case No.72 of 1999. Their bail bonds stand cancelled. Application allowed.