1 REVN 453/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.453 OF 2010 Anil Komal Yadav ..... Applicant. V/s State of Maharashtra ..... Respondent. Mr. Subodh Desai for the applicant. Mrs. M.R. Tidake, APP for the State. CORAM: V.M. KANADE, J. DATE : 25th November, 2010 P.C:- 1. Heard the learned Counsel for the applicant and the learned APP for the State. 2. Applicant is original accused No.5 in a complaint which was registered with Poinad Police Station under section 392 read with section 34 of the Indian Penal Code. Applicant had filed an application for discharge in Trial Court under section 227 of the Criminal Procedure Code. The said application was rejected by the Sessions Court by order dated 11/08/2010. Being aggrieved by the said order, applicant has filed this Criminal Revision Application. 3. Brief facts are as under:- 2 REVN 453/2010 4. On 04/01/2010, at about 10.15 a.m in the morning, the complainant who is a Manager of Petrol Pump was proceeding to deposit cash which was collected at the Petrol Pump on Saturday and Sunday and, at that time, two unknown persons came there on a bike, put chilly powder in his eyes and took away the cash amount which was in his possession. On 19/01/2010, applicant was arrested and an amount of Rs 20,000/- was recovered from him. Prosecution also arrested the original accused No.1 and recovered an amount of Rs 2,15,000/- and the accused No.3 was also arrested and an amount of Rs 1,00,000/- was recovered from him. The total amount which was taken away by the accused was Rs 5,05,000/-. The test identification parade was held and the original accused Nos. 3 and 4 were identified by the complainant as persons who had taken away the cash amount. So far as the present applicant is concerned, in the charge-sheet it is alleged that original accused Nos. 3 and 4 had gone to his house and had paid him Rs 20,000/- and had taken away the bike owned by him. This bike was recovered by the police during investigation from one of the streets at Alibaug. 5. The learned Counsel appearing on behalf of the applicant submitted that the only role attributed to the applicant is that the original accused Nos. 3 and 4 had borrowed his bike after paying him Rs 20,000/- and have 3 REVN 453/2010 used the bike for the purpose of committing the said robbery. An affidavit in reply has been filed by the Assistant Police Inspector attached to Poinad Police Station. In para 5 of the said affidavit, the said Assistant Police Inspector has stated that accused Nos. 3 and 4 had taken motor-cycle from the applicant and had paid him Rs 20,000/-. 6. After having heard the learned Counsel appearing on behalf of the applicant and the learned APP appearing on behalf of the State, I am of the view that the applicant has made out a case for discharge. It is a well settled position in law that while considering the application for discharge which is filed under section 227 or 228, the Court has to consider whether prima facie there is material which raises suspicion against the accused. The Apex Court in State of Bihar vs. Ramesh Singh1 has observed in para 4 as under:- “4. ...............If “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”, as enjoined by S.227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- .......... .............. ........... ............. (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused”, 1 AIR 1977 SC 2018 4 REVN 453/2010 as provided in S. 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is strong suspicion which leads the Court to think that there is ground for 5 REVN 453/2010 presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved..........................” From the observations made by the Apex court in the said case, it is clear that though the Court is not required to weigh and shift the evidence or material which is on record, the Court also has to consider whether there is sufficient material on record which is sufficient for the purpose of framing charge. In the present case, even according to the affidavit filed by the Assistant Inspector of Police attached to Poinad Police Station, the only material is that the accused Nos. 3 and 4 had taken motor-cycle of the applicant after paying him Rs 20,000/-. There is no material on record which indicates that the applicant was aware about the intention of the original accused Nos. 3 and 4 to use the said motor-cycle in commission of the said offence. Even if the charge of conspiracy is alleged against the accused, there must be some material to show that the applicant had conspired alongwith the other accused. In the present case, no such material is to be found from the charge-sheet which is filed 6 REVN 453/2010 by the Police. 7. Applicant, therefore, has made out a case for discharge. The impugned order passed by the Trial Court is set aside. Criminal Revision Application is allowed in terms of prayer clause (b). V.M. KANADE, J.