1 Criminal Writ Petition No.200 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.200 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 3. Shubhangi w/o.Sanjay Helale, Age-35 years, Occu-Doctor, R/o.Wakhold, Mumbai. 4. Rajkumar s/o.Tulshiram Helale, Age-41 years, Occu-Service, R/o.Aurangabad 5. Mrs.Pradnya w/o. Rajkumar Helale, Age-36 years, Occu-Household, R/o.Aurangabad 6. Mudrikabai w/o. Tulshiram Helale, Age-52 years, Occu-Household, R/o.Aurangabad PETITIONERS VERSUS State of Maharashtra RESPONDENT Mr.I.G.Durani, learned counsel for the petitioners. Ms.Y.M.Kshirsagar, learned A.P.P. for respondent State 2 Criminal Writ Petition No.200 of 2010 (CORAM : A.V.POTDAR, J.) DATE : 25/08/2011 ORAL JUDGMENT : 1. By this writ petition, the petitioners herein under Article 227 of The Constitution Of India have approached this Court for the prayers in terms of prayer clause A & B, 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 02/12/2008 below Exh.16 in Sessions Case No.64/2008 pending before Assistant Sessions Judge, Aurangabad and the order dated 26/11/2009 passed in Criminal Revision Application No.53/2009 by the learned Additional Sessions Judge No. 1 Aurangabad, may kindly be quashed and set aside. 2. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 3. On the complaint of victim, dated 30/09/2005, an offence came to be registered in Mukundwadi Police Station of Aurangabad vide CR No.184/2005 against the petitioners herein and one Krushna Bhat and Savitri Bhat for an offence punishable u/s. 376, 342, 109 r/w. 34 of the IPC. On completion of investigation, charge sheet was filed in the Curt of J.M.F.C. Aurangabad. After passing requisite committal order, the trial was committed to the Court of Sessions, 3 Criminal Writ Petition No.200 of 2010 and numbered as Sessions case No.64/2008. It appears that the petitioners herein have filed an application for discharge in the said ? Sessions Case, which came to be rejected by the learned Assistant Sessions Judge by its order dated 02/12/2008. The said order of rejection was challenged by these petitioners before learned Additional Sessions Judge, Aurangabad by filing Criminal Rev.No. 53/2009, which application came to be rejected on 26/11/2009, which order is impugned in this writ petition. 4. I have heard learned counsel for petitioners and learned A.P.P. for State. As the order impugned is challenged in the writ jurisdiction of this Court, very limited scope is there to consider whether any illegality is committed by the Courts below while rejecting the discharge application filed by these petitioners. 5. During the course of submissions, I was taken through the charge sheet by learned counsel for petitioners, so also learned A.P.P. for State. During the course of submissions across the bar, it is tried to urge that perusal of the complaint shows that the incident initially took place in the month of July 2001 and thereafter in the year 2002., The complaint came to be lodged in the month of September 2005. In view of delay in filing the complaint, the petitioners are entitled for discharge. It is further urged that bare perusal of the complaint shows that the act of sexual ravishment is against Krishna Bhat, who is now no more. Perusal fo the complaint, there are no 4 Criminal Writ Petition No.200 of 2010 specific allegations against applicant no.3 to applicant no.6. Their names came to be appeared in the supplementary statements of the victim/complainant and the other witnesses. It is also urged that other than this, there is no any other evidence against these petitioners and in view of this, they are entitled for discharge and both the Court below had committed an error by rejecting the applications for discharge. 6. Per contra, learned A.P.P. supports the judgment impugned in this writ petition. Perusal of the papers of investigation disclose that even though not only the petitioners are arrayed as an accused in the Sessions trial on the basis of offence registered on the complaint of the victim, but husband of the victim is one of the accused alleged in the said crime. It is apparent that the sex racket was burst and in that way, number of offences came to be lodged and accordingly offences were registered against the petitioners and others, so also against the deceased. Papers of investigation clearly discloses that even though the sexual ravishment of the victim was at the hands of deceased Krishna Bhat, but the victim was forced to come into clutches of this Krishna at the hands of petitioners no.1 to 3. Bare perusal of the papers of investigation further discloses that the premises where the sexual ravishment of the victim was committed at the hands of deceased Krishna Bhat, was the premises owned by petitioners no.1 and 3, who are husband and wife. Even though, from the complaint it appears that after disclosure of the incident at 5 Criminal Writ Petition No.200 of 2010 the hands of victim, still the victim was forced to confine in the room, where the alleged activities were committed by deceased Krishna. It is to be noted that papers of investigation discloses that petitioners no.1 to 3 were aware about the illegal activities of sexual ravishment/ a sex racket of Krishna Bhat. Inspite of that, they have facilitate Krishna not only by their deeds but also by allowing their premises to use for such illegal activities. Abatement to be inferred from the direct or indirect incidents, circumstances and the acts of the concerned accused. From the record, it is clear that with the help of petitioners no.1 to 3, deceased Krishna Bhat had committed such ill deeds and also directly confined the victim in the premises. No doubt, the main culprit is no more, but the offence of abatement is distinct from the main offence, which was committed at the hands of deceased Krishna. This aspect is considered by both the Courts below. Considering all these facts, I does not find any fault with the order impugned to the extent of petitioners no.1 to 3, but as no role is attributed directly or indirectly at the hands of petitioners no.4 to 6, they are entitled for discharge. This fact was overlooked by both the courts below and thus committed an error in rejecting the application for discharge to the extent of petitioners no.4 to 6. 7. 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 6 Criminal Writ Petition No.200 of 2010 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 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 7 Criminal Writ Petition No.200 of 2010 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.” 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. 8. In view of the parameters discussed in the above paragraph, writ petition is partly allowed. Petition is dismissed to the extent of petitioners no.1 to 3, but allowed to the extent of petitioners no.4 to 6. Petitioners no.4 to 6 are hereby discharged from the Sessions case No.64/2008. Their bail bonds stand cancelled. 9. Rule thus made absolute as indicated above. Writ petition stands disposed of in the above terms. (A.V.POTDAR, J.) khs/AUG.2011/cri.w.p.200-10