1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Criminal Revision Application No.240 of 2009 ( Shri Sanjay Daulatrao Dhobale ..vs.. State of Maharashtra ) --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. P.S. Tiwari, Advocate for the applicant, Mrs. R.A. Wasnik, A.P.P. for the non-applicant/State. CORAM: S. S. SHINDE, J. DATED : 16 th DECEMBER, 2009 1. This application takes exception to the order dated 1st December, 2009 passed below Exhibit 9 by the Ad hoc Additional Sessions Judge-4, Nagpur in Sessions Trial Case No.485 of 2009. 2. The learned Advocate appearing for the applicant submitted that except the statement of the co-accused, there is no any evidence to frame the charges against the applicant. The learned Advocate invited my attention to the impugned order and more particularly, paragraph 3 of the said impugned order and submitted that except the statement of the co-accused, there is no any other evidence and therefore, the applicant is entitled to discharge. 3. The learned Advocate for the applicant further submitted that this Court may call for the record and then examine the point in issue and 2 then take the decision. The learned Advocate for the applicant further submitted that though there are observations in paragraph 3 of the impugned order passed by the Ad hoc Additional Sessions Judge-4, Nagpur, however there is no basis for the said observations and the case in hand is squarely covered by the judgment of this Court in case of Laxmi Koli Babita .vs. State of Maharashtra reported in 2005 ALL MR (Cri) 571. The learned Advocate for the applicant further submitted that barring the statement of the co-accused nothing has been found out against the applicant. His name is not mentioned in the F.I.R. and therefore, he will have to face the trial without any involvement whatsoever in the alleged office. 4. The learned Advocate for the applicant invited my attention to the contents of the application, grounds taken therein and further relying on the case of Laxmi Koli Babita .vs. State of Maharashtra reported in 2005 ALL MR (Cri) 571 submitted that this application deserves to be allowed. 5. The learned Advocate for the applicant read out paragraph 3 of the judgment cited (Supra) and submitted that in that case Court called the record and thereafter verifying and scrutiny of the record Court allowed the application of the applicant therein. Therefore, this Court may undertake same exercise and then decide the instant case. 3 6. The learned A.P.P. invited my attention to paragraph 3 of the impugned order and submitted that it is not the case in which there is only statement of co-accused but there is something more and therefore, the Court below has properly appreciated the rival contentions and rejected the application filed by the present applicant for discharge. The learned A.P.P. for the State further invited my attention to the contents of paragraph 3 of the impugned order and submitted that there is a telephone record which was produced on record before the Ad hoc Additional Sessions Judge and upon perusal of the case papers produced on record the Court has arrived at the conclusion that there is conspiracy to kill the deceased Umesh at the Kirana Shop of accused No.6, who is present applicant. 7. I have heard the learned Advocate appearing for the applicant and also the learned A.P.P. for the State at length. I have also perused the judgment of this Court in Case of Laxmi Koli Babita .vs. State of Maharashtra reported in 2005 ALL MR (Cri) 571 cited (Supra) and I am of the considered view that in view of the findings recorded by the Ad hoc Additional Sessions Judge-4, Nagpur in paragraph 3 of the impugned order, this is not a fit case to entertain this application and grant relief. The contents in paragraph 3 of the impugned order reads thus :- 4 “In the case at hand, no doubt there is no direct evidence against the accused No.6 that he gave contract to accused No.5 to kill deceased Umesh. But the statement of accused No.5 indicate that the accused No.6 has given contract to him and he engaged the accused No. 1 to 4 to kill Umesh. Not only this, the telephone record produced on record indicate that there was several communication between the accused No. 6 and 5 from 04-07-2009 to 30-07-2009. The case papers only also indicate that there was conspiracy to kill the deceased Umesh at the Kirana Shop of accused No.6 on perusal of case papers, it also appears that the accused No.6 has given photo of deceased Umesh to accused No.5 to kill him. therefore, the ratio of above authorities are not helpful to the applicant/accused No.6 there is sufficient evidence to frame the charge against the applicant/accused No.6. In such circumstances, I do not find any substance in the application.” 8. Though the learned Advocate has relied on the reported judgment of this Court cited (Supra), in my considered view, in that case there was only statement of the co-accused and therefore, this Court held that no case can be further proceeded against the applicant therein and he is entitled for discharge. 5 In the instant case, there is something more than the statement of the co-accused. Therefore, in the facts of this Case, the ratio laid down by this Court in the aforesaid pronouncement would have no application whatsoever. Therefore, the application is misconceived, same is rejected. Any observation made herein above or in the impugned order of the Ad hoc Additional Sessions Judge-4, Nagpur are only for the purposes of deciding the application for discharge and said observations cannot be read in the trial. JUDGE adgokar