{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1306 OF 2010 Liladhar s/o Purushottam Narkhede, Age-45 years, Occ-Service, R/o Jalgaon, Tq & Dist-Jalgaon APPLICANT VERSUS 1. Central Bureau of Investigation, having its Head Office at North-East Block, New Delhi And Office at Kitab Mahal, Mumbai 2. The State of Maharashtra Through Zilla Peth Police Station, Jalgaon RESPONDENTS ....... Ms. Surekha Mahajan, Advocate for the applicant Mr. D.N.Salve special counsel i/b Mr.Alok Sharma for R-1 CBI Mr. P.P.More, APP for respondent No.2 State Mr. A.G.Shah h/f Mr.N.S.Ghanekar, Adv for the wife of deceased V.G.Patil ....... [CORAM : A.V.POTDAR, J.] Judgment Reserved on : 21st July 2010 Judgment Pronounced on : 30th July 2010 JUDGMENT: 1. The present criminal application, u/s 482 of the Criminal Procedure Code, takes exception to the order dated {2} 11.03.2010 passed by learned Additional Sessions Judge, Jalgaon below Exhibit-260 in Sessions Case No.8/2006. By the said application (Exhibit-260) the applicant, had prayed for discharge u/s 227 of the Criminal Procedure Code, however the same is dismissed by the learned Sessions Judge vide the impugned order. 2. Rule. 3. Rule made returnable forthwith. By consent of the learned counsel for the parties, heard finally at the stage of admission. 4. Such of the facts as are necessary for the just decision of this criminal application, may briefly be stated as follows: a) An offence at CR No.242/2005 came to be registered on 21.09.2005 with Zilla Peth Police Station, Jalgaon against two unknown persons for an offence punishable u/s 302 r/w 34 of the Indian Penal Code, on the basis of complaint of one Mahendra Panditrao Mahajan in respect of murder of Vishram Giridhar Patil, the then President of District Congress Committee, Jalgaon. Initially, two persons, by name Raju Mali and Raju Sonawane, were arrested on 25.09.2005. Subsequently, on suspicion, the present applicant was arrested on 06.10.2005. {3} b) The applicant had filed criminal Application No. 298/2006 before this Court praying for quashing of the FIR in CR No.242/2005 to the extent of the applicant. The said application was allowed by this Court vide common order dated 03.02.2006 passed in Criminal application Nos. 298/2006 and 3331/2005. The State had challenged the order dated 03.02.2006 before the Apex Court by preferring Special Leave Petition. However, it appears that the said Special Leave Petition was dismissed by the Apex Court on 18.04.2007. c) It appears that wife of the deceased V.G.Patil, had filed one writ petition bearing No.646/2005 before this Bench for transfer of investigation in connection with CR No.242/2005 to the Central Bureau of Investigation. The said writ petition was allowed by this Bench vide order dated 23.02.2007 and hence the further investigation was handed over to the CBI. d) It further appears that thereafter, one more writ petition, bearing No.1278/2007, was preferred before the Principal Seat of this Court at Bombay requesting to monitor the investigation in Crime No.242/2005. In the said writ petition, the applicant and another had filed intervention application (Writ Petition No.1877/2007). However, the said intervention application was dismissed vide order dated 21st November 2008. Within mean time as the CBI has filed {4} additional Charge sheet-I against Raju Mali, Raju Sonawane and additional Charge sheet-II against present applicant and one Damodar Lokhande on 06.10.2008, for an offence punishable u/s 120-B r/w 302 of the Indian Penal Code, the writ petition had become infructuous and hence was accordingly dismissed by this Court. e) In the additional charge sheets filed on 06.10.2008 total 15 instances are quoted on the basis of statements of 6 witnesses recorded during the further investigation, to prima facie establish charge of conspiracy u/s 120-B r/w 302 of the Indian Penal Code against the present applicant and others. f) It further appears that after filing of the additional charge sheets by the CBI, on 06.10.2008, again the applicant had moved this Court for quashing of the charge sheet by preferring criminal application No.3679/2008, which came to be dismissed by this Court. The said order of dismissal was further challenged by the applicant before the Apex Court, however, could not succeed. g) The present applicant and Damodar Lokhande, against whom additional charge sheet has been filed on 06.10.2008, have filed applications (Exhibit-260 and Exhibit-261) for discharge u/s 227 of the Criminal Procedure Code before the {5} learned Additional Sessions Judge, Jalgaon on whose file Sessions Case No.08/2006 is pending. It appears that vide impugned common order dated 11.03.2006, the said applications (Exhibit-260 and Exhibit-261) came to be dismissed. Hence, for the grounds raised in paragraph No.12 and 13 of the present application, the applicant is before this Court for his discharge from the Sessions Case No.08/2006. 5. In this background, heard learned counsel for the applicant, learned Special counsel for CBI, learned APP for State and learned counsel for the wife of deceased V.G.Patil. 6. Main thrust of submissions of learned counsel for applicant was that while deciding criminal applications No. 3331/2005 and 298/2006 vide order dated 03.02.2006, this Court had examined the point of telephone communication between the applicant and the prime accused as well as use of motor bike of the applicant by the prime accused at the time of commission of offence and hence, the same cannot be re-appreciated now. It is also contended that Rekha Mali, wife of prima accused, though implicated the applicant by stating that there were regular meetings of the applicant with her husband, prime accused, prior to assassination of deceased V.P.Patil, yet details of the said meetings are not given in the said statement. According to learned counsel for the applicant, in absence of details of the said meetings, it cannot be inferred that the applicant conspired with {6} the others to do the illegal act of murder. It is also urged that the statements of Mr.Pawar and his wife Shilabai, recorded during the investigation, do not implicate the applicant in the crime and hence prayed to allow the present application and discharge the applicant from Sessions Case No.08/2006. 7. Learned special counsel for the CBI, learned APP and learned counsel appearing on behalf of wife of late V.G.Patil, supported the impugned order. 8. In the matters of “Superintendent & Remembrancer of Legal Affairs, West Bengal V. Anil Bhunja & others” (AIR 1980 SC 52), “Niranjan Singh Karam Singh Punjabi V. Jiendra Bijaa & Ors. (AIR 1990 SC 1962), State of Maharashtra V/s Som Nath Thapa, (1996) 4 SCC 659 and State of Maharashtra V/s Priya Sharan Maharaj, AIR (1997) SC 2041, the Apex Court had dealt with the scope of section 227 of the Criminal Procedure Code. In the recent judgment, Division Bench of this Court has dealt with the scope of section 227 of the Criminal Procedure Code. The Division Bench of this Court in the matter of “Govind Sakharam Ubhe V/s State of Maharashtra” reported in 2009 (9) LJ Soft 47 : 2009 ALL MR (CRI) 1903 : 2009 (3) MAH.L.J. (CRI) 131 : 2009 (3) BOM C.R. (CRI) 144, has discussed, all the judgments of the Apex Court, referred supra. The Division Bench has summarized the above referred judgments in para 25, which reads thus - {7} 25. The principles laid down by the Supreme Court in the above cases need to be summarized. It is settled law that at the stage of Section 227 of the Code, the court has power to sift the materials collected by the prosecution to find out whether there is any ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court’s enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross-examination given rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of Section 227 or Section 228, the scales as to the guilt or innocence of the accused are even then the Court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence, then the court will proceed to frame the charge. But if two view are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage.” {8} 9. In the matter of “Kehar Singh and others V/s State (Delhi Administration) reported in 1988 (3) SCC 609 (Known as Indira Gandhi Assassination Case), the Apex Court in para 275 has observed thus- 275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they wee done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly prove by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together in the pursuit of the unlawful object. The former does not render them conspirators., but the latter does. It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand explains the limited nature of this proposition: Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties “actually come together and agreed in terms” to pursue the unlawful object; there need {9} never have been an express verbal agreement, it being sufficient that there was “a tacit understanding between conspirators as to what should be done”. 10. The Apex Court, in the matter of “State V/s Nalini” reported in (1999) 5 SCC 253, (known as Rajiv Gandhi Assassination case) in respect of principle of agency as per section 10 of the Evidence Act, has observed thus - 664. Section 10 of the Evidence Act recognizes the principle of agency and it reads as follows : “10. Things said or done by conspirator in reference to common design – Where there is reasonable ground to believe that tow or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of providing the existence of the conspiracy as for the purpose of showing that any such person was a party to it.” 665. To apply this provision, it has to be shown that (1) there is reasonable ground to believe that two or more persons have conspired together: and (2) the conspiracy is to commit an offence or an actionable wrong. If these two requirements are satisfied then anything said, done or written by any one of such persons after the time when such intention was entertained by any one of them in furtherance of their common intention, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of conspiracy and also for the purpose of {10} showing that any such person is a party to it. In the light of circumstances on record it has to be inferred whether the accused is a conspirator or not, as the conspiracy is never hatched in a broad day light, and hence it has to be inferred from the circumstances collected during the investigation. 11. Statements of the witnesses recorded by the CBI, on the basis of which the additional charge sheet is filed on 6th October 2008, require to be considered in the light of supplementary charge sheet dated 10.06.2008 and original charge sheet filed initially. Deceased V.G.Patil was the President of the District Congress Committee, Jalgaon at the relevant time whereas accused Damodar Lokhande was interested to become Jalgaon City President of Congress Party. It has revealed during the investigation that name of said Damodar Lokhande was opposed by the deceased V.G.Patil in the meeting at Head Quarter of Maharashtra Pradesh Congress Committee at Mumbai and at that time, fight had taken place between the applicant and deceased V.G.Patil. It is alleged that at that time threats were extended by the applicant to deceased V.G.Patil. It has also come in evidence, collected during the investigation by the CBI, that the motorcycle, used by the prime accused for the murder of deceased V.G.Patil, bearing No.MH-15 / APS 1341, was purchased by the applicant. It also transpired from the statement of Rekha Mali, wife of prime accused Raju Mali, that one month prior to the assassination of {11} V.G.Patil, the applicant was on visiting terms to the house of prime accused Raju Mali. During further investigation, it has revealed that the mobile number of the present applicant was 9423187054 and on the said number, on 21.09.2005, at about 8.18 a.m. phone call was received from a coin box from Kingaon road. Statement of the owner of the said coin box is recorded, which discloses that prime accused Raju Mali had called from the said coin box from Kingaon Road, where assassination of V.G.Patil has taken place. This statement is supported by the call details of the PCO at Kingaon as well as from the details of incoming calls on the mobile of the applicant. The investigation further reveals that charges / fee of the advocate engaged to defend the bail application of the prime accused Raju Mali were borne by the present applicant. The investigation also reveals that eye witness R.G.Pawar, who has witnessed the assassination of V.G.Patil, and who has identified the prime accused in Test Identification Parade, was threatened and induced by Damodar Lokhande, who is associate of the applicant. All these facts are properly appreciated by the lower court in the impugned order while rejecting the application for discharge (Exhibit-260). Thus, the circumstances on record prima facie show that the accused is a conspirator who has hatched the conspiracy to assassinate V.G.Patil and hence, there is prima facie evidence to frame charge against the applicant for the offence punishable u/s 120-B read with 302 of the Indian Penal Code. 12. This Court is not in agreement with the submissions {12} advanced on behalf of the applicant that the circumstances gathered by the CBI in the further investigation, are based on grave suspicion. However, this Court is of the view that these circumstances are the prima facie evidence to infer that the applicant is one of the conspirator in the illegal agreement of assassination of deceased V.G.Patil. As observed by the Apex Court as well as by the Division Bench of this Court, if there is prima facie evidence on record to frame charge, then in such cases the accused shall not be discharged u/s 227 of the Criminal Procedure Code. In the premise and considering the overall effect of the circumstances collected during the investigation, there is prima facie evidence to frame charge against the applicant. Therefore, no interference is required in the impugned order dated 11.03.2010 passed below Exhibit-260 in Sessions Case No.8/2006, by the learned Additional Sessions Judge, Jalgaon. 13. In the result, the application must fail. Consequently, the application, sans merits, stands rejected. 14. Rule stands discharged. Application stands disposed of accordingly. [A.V.POTDAR, J.] drp/B10/criapln1306-10