1 Criminal Writ Petition No.198 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.198 OF 2010 1. Dr.Sanjay S/o.Tulshiram Helale, Age-41 years, Occu-Doctor, R/o.Wakhold, Mumbai 2. Baliram S/o.Gopalrao Helale, Age-34 years, Occu-Service, R/o.Sahyadri Hills, Aurangabad PETITIONERS VERSUS State of Maharashtra RESPONDENT Mr.I.G.Durani, learned counsel for the petitioners. Mr.S.D.Kaldate, learned A.P.P. for respondent State (CORAM : A.V.POTDAR, J.) DATE : 25/08/2011 ORAL JUDGMENT : 1. By this writ petition under Article 227 of The Constitution of India, the petitioners have approached this Court for the reliefs prayed in terms of prayer clause A,B and C, which read as follows : A. This criminal writ petition may kindly be allowed. B. By issuing appropriate writ, order or directions, the impugned order dated 02/012/2008 below Exh.9 in Sessions case No.65/2008 pending before Assistant Sessions Judge, Aurangabad and the order 2 Criminal Writ Petition No.198 of 2010 dated 26/11/2009 passed in Criminal Revision Application No. 73/2009 by the learned Additional Sessions Judge No.1, Aurangabad, may kindly be quashed and set aside. C. By issuing appropriate writ, order or directions, the petitioners may kindly be discharged from Sessions Case No.65/2008 pending before the Assistant Sessions Court, Aurangabad. 2. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 3. The applicants herein are accused no.3 and 4 in Sessions Case No.65/2008 on the file of Assistant Sessions Judge, Aurangabad. The name of the victim is not disclosed in this judgment as per the directions of the Supreme Court that name of the victim in the sexual offences not to be disclosed while dictating the judgment for the sake of their reputation and not to cause any damage to their reputation in the society. Complaint came to be registered against the present applicants and one Krushna Bhat and Savitri Bhat @ Reddy, who both are now no more, for an offence punishable u/s. 376, 109, 323, 504, 506 of the IPC. On completion of investigation, charge sheet came to be filed in the Court of J.M.F.C. Aurangabad. Thereafter necessary committal order was passed and the trial was committed to the Court of Sessions. When the trial was at the stage of framing of charge before Assistant Sessions Judge, Aurangabad, it appears that an application for discharge was moved u/s. 227 of the Cr.P.C. 3 Criminal Writ Petition No.198 of 2010 That application came to be rejected by an order dated 02/12/2008. The order of rejection of an application for discharge was challenged before the learned Additional Sessions Judge, Aurangabad in Criminal Revision Application No.73/2009. By judgment and order dated 26/11/2009, this criminal revision application also came to be dismissed, which judgment is impugned in this writ petition. 4. There is very limited scope in this writ petition to consider whether any illegality was committed by both the courts below while rejecting the application for discharge as prayed by these petitioners. 5. It is submitted across the bar on behalf of the petitioners that on bare reading of the complaint of the victim, it shows that the alleged incident took place somehwere in the year 2002, in the month of July and August. Complaint came to be lodged after the gap of 3 years. Taking into consideration the delay in filing the complaint, petitioners are entitled for discharge. Delay in filing the complaint itself is no ground to discharge the petitioners from the offence. It is the second limb of the submissions on behalf of the petitioners that bare reading of the complaint, the alleged act of sexual ravishment was not complained against these petitioners, but was complained against one Krishna Bhat, who himself projected himself as the Avtar of Lord Krishna and under that pretext, used to run a sex racket. The victim of the offence was victimised by the act of this Krishna Bhat, who is now no more. It is further urged that when the main 4 Criminal Writ Petition No.198 of 2010 culprit is no more, there shall not be any offence of abatement at the hands of these petitioners. At this stage, it is necessary to make it clear that abatement to commit an offence is distinct offence than the main offence, for which there shall not be any duality of opinion. The statements recorded during the investigation disclosed that after the first act of sexual ravishment at the hands of main culprit, it was disclosed by the victim to these applicants as applicant no.2 is the real brother in law of the victim while applicant no.1 is the cousin brother in law of the victim. The premises where these activities were happened, belongs to applicant no.1. Investigation discloses that even though the applicant no.1 and 2 are aware about the otherwise activities of the main culprit Krishna Bhat, they facilitate him to get involved in all these activities. Abatement to be inferred from the direct or indirect acts of the accused, who induce the victim to join the main culprit to commit such illegal acts. Considering this evidence, there is prima facie material to proceed against these applicants. 6. It is observed by the Division Bench of this Court in the matter of Govind Sakharam Ubhe versus State of Maharashtra, 2009(3) Bom.C.R. (Cri.) 144 in para no.25, which reads as follows : “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 prima facie 5 Criminal Writ Petition No.198 of 2010 case against the accused or not. The Court has to be satisfied that there is 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 enquriy 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 gives 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 of 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 views 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 b 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.” 6 Criminal Writ Petition No.198 of 2010 which are the parameters to consider the evidence at the time of framing of charge, whether the charge to be framed or the accused/petitioners are entitled for discharge. 7. Bearing in mind these guidelines, as discussed in above paragraph, if there is prima facie evidence to frame the charge, the accused/petitioners are not entitled for discharge u/s. 227 of the Cr.P.C. In the matter in hand, there is prima facie evidence to frame charge against the petitioners. In view of this, no interference is required at the hands of this Court in the order impugned, passed by both the courts below, as according to me, no illegality is committed while rejecting the applications of petitioners for discharge. Writ petition is devoid of any substance, hence dismissed. 8. Rule discharged. Writ petition stands disposed of accordingly. (A.V.POTDAR, J.) khs/AUG.2011/cri.w.p.198-10