FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.523 OF 2009 [ V/S.] _____________________________________________________________________________________ Office Notes, Office Memoranda of : Coram, appearances, Court s orders : ’ or directions and Registrar s’ : Court s or Judge s orders ’ ’ orders : _____________________________________________________________________________________ Mr.Rahul Kate for petitioner Mrs. P.P. Bhosale, APP CORAM : S.C. DHARMADHIKARI, J. DATED : 8th JANUARY, 2010. PC :- 1. Heard. Rule. By consent, rule is made returnable forthwith. 2. This is a revision application by the original accused No.8 in Sessions Case No.100 of 2007. 3. The applicant and original accused No.9 Vinod @ Tatya Vishnu Babras applied for discharge from the subject Criminal case. Their applications (Exh.30) were heard by the learned District Judge -II and Additional Sessions Judge, Baramati. He dismissed them by an order dated 6th April 2009. 4. Aggrieved by the order refusing to discharge the original accused No.9, a criminal revision application was preferred in this Court being Criminal Revision Application No.377 of 2009. That was placed before learned Single Judge of this Court who after hearing both sides passed an order on 29th July 2009 allowing the revision application and discharging original accused No.9. While it is true that the sessions case is filed alleging offences punishable under section 302, 307, 143, 147, 148, 149, 120(B), 201, 109, 504 and 506 of Indian Penal Code read with relevant provisions of the Bombay Police Act and the Arms Act. It appears that the role of original accused No.9 was stated to be providing two swords to the other accused for committing murder of one Sonya @ Amol Sontakke. 5. As far as the material against the co-accused No.9 is concerned, this Court referred to the statement of co-accused Atul Shetye and held that barring this material, there is nothing to implicate and connect the said accused in connection with the crime. In other words, the role attributed to him was limited and that was providing two swords. 6. Mr.Kate states that the case of the present applicant is on par with the co-accused Vinod. The order passed in his case by this Court would be squarely applicable in asmuch as this applicant is on a still better footing. It is stated that he has only provided a motorcycle to the other accused to escape from the site. In such circumstances, the benefit of this Court s order discharging co-accused Vinod ’ who is accused No.9 be made available to the present applicant and the applicant be discharged. The order passed by the learned Additional Sessions Judge refusing to discharge the applicant accused No.8 is – vitiated by an error apparent and results in serious miscarriage of justice. For all these reasons, he prays that the revision application be allowed. 7. Learned A.P.P. Refers to not only the statement of co-accused Mr.Shetye but the statement of present applicant stating that he not only provided motorcycle but also some monies to the other accused. Learned A.P.P., therefore, submits that the benefit of the order of this Court discharging accused No.9 be not made available to the present applicant. 8. I have perused the order passed by the learned Additional Sessions Judge and the learned Single Judge in the case of Co- accused No.9. Learned Additional Sessions Judge has not referred to any statements or other material pinpointing the role of the present applicant, original accused No.8. All that he has observed is that accused No.8 Swami was arrested by Pandharpur police station for taking active part in the assault with bloodstained clothes and motorcycle with other co-accused. Barring these observations and stating that the accused No.8 present applicant provided motorcycle or aid to the assailants in the actual assault for escaping from the place of incident, nothing has been observed by the learned Additional Sessions Judge. The other observations in the order are general and with regard to the prosecution case in the pending trial. To my mind, even prima facie all that is available against this applicant is the statement that he provided motorcycle to the assailants to escape from the site/ place of incident. The learned Additional Sessions Judge has not referred to any other material, including what has been orally submitted by the learned A.P.P. Assuming even that to be the case, to my mind the case of present applicant is on par with that of the co-accused No.9 who has been discharged by this Court. The discharged co-accused is stated to have provided two swords. The role of the applicant is to a still lesser degree and that is to aid the other accused in escaping from the site on a motorcycle provided by him. In such circumstances, learned Additional Sessions Judge was in error in refusing to discharge the present applicant. Even at this stage at which the matter was before the learned Additional Sessions Judge, he was obliged to discuss this aspect of the matter and that is how the order has been held to be vitiated by the error apparent on the face of record. For that reason this Court in the other revision application of co-accused No.9 interfered with it and discharged the said co- accused No.9. The observations in that decision are applicable to the present applicant, considering his limited role. Therefore, there is no substance in the contention of learned A.P.P., that the benefit of that order will not be available to this applicant. 9. For the aforementioned reasons and finding that the impugned order is vitiated by the error apparent on the face of record and learned Judge has failed to discharge his duties in accordance with law, that the revision application succeeds. Rule is made absolute in terms of prayer clause (b). Present applicant Shrikant stands discharged from Sessions case No.100 of 2007 on the file of learned Dist.Judge-II and Additional Sessions Judge, Baramati. (S.C.Dharmadhikari, J.)