{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.15 OF 2010 Ramesh s/o Mansingh Patil, Age-55 years, Occ-Agril R/o Jaukheda, Tq & Dist-Jalgaon APPLICANT VERSUS The State of Maharashtra RESPONDENT ....... Mr. H.F.Pawar, Advocate for applicant Mr. N.B.Patil, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 2nd March 2010 ORAL JUDGMENT : 1. By this revision application, the applicant, who is accused No.5 in Sessions Case No.330/2009 pending on the file of 2nd Addl. Sessions Judge, Aurangabad, has prayed to quash and set aside the order dated 5th January 2010 passed below Exhibit-17 by which the applicant had prayed for discharge from the said sessions case, which came to be dismissed. 2. Rule. Rule returnable forthwith. By consent of the {2} parties, heard finally at the stage of admission. 3. Briefly stated the facts of the present case can be summarized thus - On the basis of a dying declaration recorded of one Vandana on 01.06.2009, an offence is registered at CR No.05/2009 with Zilla Peth police station, Jalgaon. Initially, the said offence was registered u/s 307, 498-A, 323, 504 r/w 34 of the Indian Penal Code. However, it appears that latter on, when victim Vandana expired the said offence came to be converted into an offence punishable u/s 302 of the IPC. It further appears that the applicant is released on anticipatory bail vide order dated 21.07.2009. In the said offence, after completion of the investigation, charge sheet has been filed. It appears that earlier charge was framed against the present applicant on 09.11.2009 for an offence punishable u/s 498-A r/w 34 of the Indian Penal Code. The applicant was not charged for an offence punishable u/s 302 r/w 34 of the IPC. Procedure is laid down in Chapter XVIII of the Criminal Procedure Code while framing charge. Section 226 speaks about opening of the case by the prosecution, section 228 speaks about framing of charge while section 227 speaks for discharge. The combined effect of all these three sections makes it clear that while framing the charge, the prosecution to open the case by addressing the court on the basis {3} of the material available to frame charge against the accused u/s 228 and this is the stage where trial court requires to hear the defence for discharge if any, u/s 227 of the Criminal Procedure Code and then to frame charge u/s 228 of the Criminal Procedure Code. When the earlier charge was framed against the applicant on 09.11.2009, no opportunity was given to the defense to make submissions to claim discharge from the alleged accusation. As no procedure was followed, as contemplated u/s 226 to 228 of the Criminal Procedure Code, the applicant had challenged the same and consequently the matter was remanded back to the Court of Sessions with directions to hear the defence u/s 227 in respect of charge to be framed. It appears that vide order dated 15.01.2010 passed below Exhibit-17, the trial court has rejected the application for discharge filed by the applicant. Hence the said order is under challenge in this revision. 4. During the course of submissions, my attention is drawn towards the statements of the relatives of the deceased Vandana recorded during the investigation. From the said statements it appears that the applicant, who is arrayed as accused No.5 in the said Sessions Case, is not the relative of the husband of deceased Vandana. This fact also reflects from various statements recorded during the investigation and not even disputed. 5. Submissions of learned counsel for the applicant are {4} two fold; firstly, it is urged that section 498-A of the IPC would attract if there is any harassment on the count of demand of dowry by the relatives of the husband of the victim and if the accused is not the relative of the husband of the victim then there shall not be any offence u/s 498-A of the IPC against the said accused. For clarity, section 498-A is reproduced herein below, which reads thus - “498-A Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine.” On bare reading of section 498-A of the IPC, it is clear that the accused shall be relative of the husband. From the statements recorded during the investigation it is clear that the present applicant is neither a family member nor the relative of the husband of deceased Vandana. 6, Secondly, it is urged that the allegations against the applicant are that he instigated the husband and relatives of the deceased on phone to demand certain amount from the parents of the deceased on the count that the character of the deceased was under shadow of doubt. Instigation is well defined u/s 107. To connect the applicant with the accusation of instigation on phone, some record in respect of phone must be available, if at all any phone call is made by the applicant to the husband of the deceased in respect of instigation. This application was required to {5} be adjourned for several times to enable the APP to place on record the record in respect of incoming and outgoing calls on the mobile of accused No.1, i.e. husband of deceased. Learned APP produced the said record. Phone number of the applicant is 0257-2461252. The record collected during the investigation does not speak that the calls received on the mobile of the husband of the deceased i.e. No.9860351347, are received from the phone number of the applicant. It is urged that though calls were not made from the phone of the applicant, yet calls were made from one PCO from the area where the applicant resides. Admittedly, no statement of the PCO holder is ever recorded to the effect that it was the applicant was who was making the phone calls from the said PCO on the mobile of the husband of the deceased. In the premise, the record does not indicate that phone calls were made by the applicant and received by the husband of the deceased in respect of instigation to demand certain amount from the parents of the deceased. As the applicant is not the relative of the husband of the deceased and to establish allegations, at least to frame charge of instigation u/s 498-A of the IPC on phone, that record is not collected during the investigation. In the premise, it can safely be inferred that the material collected during the investigation is not sufficient to frame charge against the applicant u/s 498-A of the IPC. 7. This Court, in the matter of “Govind Sakharam Ubhe V/s State of Maharashtra” reported in 2009 (9) LFSOFT 47 : 2009 ALL MR (CRI) 1903 : 2009 (3) MAH.L.J. (CRI) 131 : 2009 {6} (3) Bom.C.R. (Cri) 144, in para 18 and 19 of the has discussed the observations of the Apex Court in the matters of Niranjan Singh Panjabi V/s Jiendra Bijja” reported in AIR 1990 SC 1962, Superintendent & Remembrancer of Legal Affairs, WB V/s Anil Bhunja” reported in AIR 1980 SC 52”. Para 16 of the said judgment reads thus - “16. In State of Bihar V. Ramesh Singh (1977) 4 SCC 39, while referring to Section 227 of the Code, the Supreme Court observed: ‘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 the suspicion cannot take the place of proof of his guilt at the conclusion of the trial. But if at the initial stage, 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 it is not open to the Court to say that there is no sufficient ground for proceeding against the accused’. The Supreme Court further observed that - ‘ If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.’ The Supreme Court then went on to observe - ‘If the scales as to the guilt or innocence of the accused {7} are even at the conclusion of the trial, then on the theory of benefit of doubt the case must end in the acquittal of the accused; but if on the other hand, the scales are even at the initial stage of making an order under section 227 or section 228, then in such a situation, ordinarily and generally the order will have to be made under section 228 and not under section 227.’ 8. Considering the above observations, it is clear that though the evidence collected during the investigation is accepted as it is, without the test of cross examination, yet this material is not sufficient to frame charge and then these are the cases where the accused to be discharged u/s 227 of the Criminal Procedure Code and the accused not to face the ordeal of trail. 9. Considering the fact that the applicant is not the relative of husband of the deceased, as contemplated u/s 498A of the IPC and the allegations of instigation to the husband of the deceased on phone, are not supported by the material collected during the investigation, this is a fit case where the applicant is entitled for discharge u/s 227 of the Criminal Procedure Code. 10. In the premise the impugned order, particularly the observations of the trial court on page 8 of the order that the IO has already collected cell phone record of accused No.1, which is prima facie evidence against present accused No.5, are perverse and hence the impugned order passed below Exhibit-17 on 15.01.2010 by the 2nd Additional Sessions Judge, Aurangabad, {8} requires to be quashed and set aside. 11. Consequently, the revision application succeeds. The impugned order dated 15.01.2010 passed below Exhibit-17 by 2nd Additional Sessions Judge, Aurangabad is hereby quashed and set aside. The discharge application of the applicant is hereby allowed. The applicant is hereby discharged from Sessions Case No. 330/2009 pending on the file of 2nd Additional Sessions Judge, Aurangabad. 12. Rule is thus made absolute on the terms indicated above. [A.V.POTDAR, J.] drp/A10/crirev15-10