1 18-40-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.40 OF 2011 Mr. Ganesh S. Malpeddi .. Applicant Vs. The State of Maharashtra .. Respondent. Mr. U.P.Warunjikar, for the Applicant. Mr. Rajesh More, APP for the Respondent-State. CORAM : N.D.DESHPANDE,J. DATE : 4th FEBRUARY, 2011. P.C.: 1 Heard learned counsel for the Applicant and learned APP for the Respondent-State. 2 The present application is filed for discharge by the Applicant- original accused no.6, who is facing trial case no.863 of 2008 pending before the Sessions Court at Pune. Admittedly, no charge is yet framed. The application of discharge of accused no.1 2 18-40-11.sxw was allowed by an order dated 22nd November, 2010 passed by Additional Sessions Judge, Pune. However, by separate order, application for discharge of the present Applicant came to be rejected . The same order is challenged in this application. 3 The discharge is merely on the ground of parity. According to the Applicant, trial court did not give equal treatment to accused nos.1 and 6. It is seen that there is no complaint about the hearing. Both the orders are placed on record. Perused the orders. It is seen that applications were separately considered and decided on its merits. 4 After the case is committed to the Session, prosecution open its case under section 226 of Criminal Procedure Code, 1973 which reads as under:- “Section 226 – Opening case for prosecution – when the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused”. The application of accused no.6 is under section 227 of Criminal Procedure Code, 1973 which reads as under:- 3 18-40-11.sxw “Section 227 – Discharge – 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.” It has been held that accused has right to make application for discharge and the said application should be examined, considering whether there are sufficient grounds or not. Detailed evidence can only be available in a trial and, therefore, accused is not entitled to get any benefit of doubt, merely because there are some irregularities or insufficiency of the matter in the charge sheet. In the present case, applicant-accused no.6 is one of the members of the criminal conspiracy having a definite object which is common to all who participated in actual assault on the deceased. It is not disputed that the deceased died as a result of criminal conspiracy. The trial court also observed that there is no direct evidence against him but is a case of circumstantial evidence and refer to some of the witnesses who indicted that he was accompanied by one of the accused- Mr. Vishal Dongre, who was also involved in the act. However, the relevant material also discussed on the point of criminal conspiracy which does not require the actual presence of the accused on the 4 18-40-11.sxw scene. Thus, in the facts and circumstance of the case, no case is made out by the Applicant under section 227 of Criminal Procedure Code. Thus, no fault can be found with the impugned order of rejection of his application. It is also informed that no formal charges framed yet by the trial court, pursuant to the hearing under section 226 of Criminal Procedure Code. The present discussion made above is limited to the decision of the discharge application which was decided by the trial court and, therefore, trial could should not get influenced while deciding his case after recording evidence, by the observations made by this court. 5 In that view of the matter, criminal application stands rejected and disposed of. (N.D.DESHPANDE, J.)