1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Cril.Revn.Appl.No.196 of 2009 Manohar Chitaman Bhivgade and anr. ..vs.. State of Mah. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- C ORAM : C.L.PANGARKAR, J. DATED : 22nd June,, 2010. Rule. Heard finally. Heard Mr.Anil Mardikar, learned counsel for the applicants and Mr.T.D.Khade, learned APP for the State. This criminal revision is filed against the order passed by the Special Judge on an application for discharge. The present applicants/accused are being prosecuted for having committed offence punishable under Section 13(1)(e) of the Prevention of Corruption Act and under Section 109 of the Indian Penal Code. It is the case of the prosecution that accused/applicant no. 1 was serving as Junior Engineer in the Public Works department. It was found that he was possessing assets disproportionate to his known means of income. The matter was investigated and a charge-sheet came to be 2 filed against the accused. The accused filed an application for their discharge claiming that they have sufficient material to show prima facie that the assets, which are shown in their name are belonging to their daughter who are not accused in the case. The learned Judge of the Special Court upon consideration of the submissions held that there is a reason to proceed against the accused and the accused are not entitled to discharge. It is against this order that this revision is preferred. Shri Mardikar, learned counsel for the applicants, contends before me that the accused had produced before the Special Judge several documents suggesting that the property that was shown to be belonging to the accused/applicant is, in fact, belonging to the daughter and his wife and such property has already been disclosed in the income tax return. He submits that if the learned Special Judge had considered it, he would have discharged the accused. He submits that non- consideration of these documents has resulted into rejection of the application. The learned counsel takes me through the summary of the property and assets held by the accused and his family. He submits that these documents, if considered in a proper perspective, 3 certainly give rise to hold that there is no sufficient ground to proceed against the accused. He relied on the decision of this court reported in (2008 SCC 394 (Yogesh @ Sachin Jagdish Joshi ..vs.. State of Mah.), the Supreme Court observes as follows - “It is trite that the words “not sufficient ground for proceeding against the accused” appearing in Section 227 Cr.P.C. postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test of determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the 4 material on record, if unrebutted, make a conviction reasonably possible.” The Supreme Court has held that if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. In the instant case, however, the documents that have been produced by the accused have not been proved. The learned Judge will have to consider the value to be attached to those documents. The prosecution also will have to be given an opportunity to explain the acquisition of assets which are in the name of family of the accused and are not in the name of the accused. Without giving an opportunity to prosecution to explain as to how those assets may be taken into consideration for treating those assets to be that of the accused, it will not be possible to discharge the accused at this stage. In fact, if accused are discharged at this state, it will amount to prejudging the case itself. The question as to whether those documents should or should not be considered needs to be gone into on merits. At the stage of discharge, what is required to be seen by the Magistrate or the Sessions Judge is whether 5 there is any reason to proceed against the accused or not. There is certainly material available on record to proceed against the accused. The learned Sessions Judge has considered and found that the material that is available is sufficient to proceed against the accused. In the circumstances, the order passed by the learned Special Judge does not suffer from any infirmity or illegality. There is, therefore, no substance in the revision. It is dismissed. JUDGE. chute