- 1 - 303.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION CRIMINAL WRIT PETITION NO.303 OF 2011 Tushar Girish Patil .. Petitioner (Orig.Accd no.2) vs The State of Maharashtra & ors..Respondents Mr.A.K.Apte for Petitioner Mr.R.M.More APP for Respondent-State CORAM: N.D.DESHPANDE, J DATE: 10th February,2011 P.C. 1. Heard learned counsel for the petitioner and APP for the State. By this petition, the petitioner who is original accused no.2 in Sessions Case No.894 of 2009 impugns order dated 22.12.2010 passed by the learned Additional Sessions Judge, Pune purported to be under section 227 of Cr.P.C. seeking discharge from the case. The said Sessions case arise out of C.R.No.96/2009 under section 302 read with section 120B of IPC - 2 - 303.11 registered with Kondhwa police station, Pune against the accused and others. It is also found that there are two C.Rs registered namely 78/2009 under section 325, 506 read with section 34 IPC and C.R.No.79/20-09 under section 324, 504 IPC which was registered by the same police station. In the recent past, there were counter cases where the present accused and his associates were involved. They are college students and campus of the college is involved in all these three cases. The present prosecution has a background of these two C.Rs. 2. According to the petitioner, he has been falsely implicated in the present sessions case by the police despite the fact that the deceased Abhishek Narendra Sathe belongs to his group and was one of co-accused in C.R.No.78 of 2009 and there was no reason for him to a member of a criminal conspiracy - 3 - 303.11 to commit his murder. According to the learned counsel for the petitioner, the whole charge sheet is misconceived and as such there is no material to proceed against him having his involvement in the criminal conspiracy. Therefore, he made an application under section 227 of Cr.P.C. for discharge. The same was turned down and came to be rejected on 22.12.2010 by the learned Additional Sessions Judge, Pune. 3. Perused the impugned order referring to the submissions made by the defence for accused no.2 petitioner. In every such discharge application under section 227 of Cr.P.C. the trial court normally takes into consideration the submissions made before it by the defence and cast a burden on him to prove his innocence by pointing out that there are not sufficient grounds for proceeding against him. - 4 - 303.11 Section 227 of Cr.P.C. reads as under: Discharge: If upon consideration of the record of the case and the documents submitted therewith,and after hearing, the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused,he shall discharge the accused and record his reasons for so doing. 4. It is understood that after the case is committed to the Court of Sessions, trial begins with opening of the case for the charge by the prosecution under section 226 of the Cr.P.C.1973. 226. Opening case for prosecution: When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. - 5 - 303.11 5. Admittedly, there is no opening of case yet by the prosecution after all the accused including the applicant have been committed to the Court of Sessions. Still application is made under section 227 of Cr.P.C. by him. No doubt such an application is maintainable in law and it is decided as per the material disclosed in the charge sheet which is subjected to such scrutiny that there are not sufficient grounds to proceed against the accused. 6. Appreciation of evidence is not possible because, such material if any is in crude form and during trial after cross-examination it is available in proved form . Till then, what is in the charge sheet available can be taken into - 6 - 303.11 consideration for hearing of his application under section 227 of Cr.P.C. for discharge and for its decision in accordance with law. 7. It is seen that hearing was arranged at the instance of the accused/petitioner and following observations are found in para 4 of the impugned order dated 22.12.2010. “ The phone records in charge sheet indicate that the present applicant made phone calls to the other accused. At this stage, it cannot be inferred as submitted on behalf of applicant that the said phone calls were made by the present applicant for negotiations and settlement in relation to Crime No.78/09. The prosecution alleged that present applicant informed to the other accused in the crime about the movements of the deceased. In view of this, it cannot be said that there is no sufficient ground to frame the charge against the present applicant. Accordingly following order is passed. Application is rejected. - 7 - 303.11 8. It is the case of the petitioner/accused that he was trying for settlement of two counter cases and as such used his mobile phone and thus taking lead as a peace maker. It was suggested that the deceased and the petitioner both were belonging to the same group and as such there was never any ill intention or oblique intention existed in his mind behind the murder of the deceased. However, there was no such material before the Sessions Court to accept such defence of applicant s innocence. The court cannot make out a case for a party unless it is brought on record by him or it reveals form the charge sheet. What was available was phone calls and information from the concerned department, seizure of the mobile phone - 8 - 303.11 and according to the prosecution there is ample material on record to establish a link-complicity in criminal conspiracy. Such a conspiracy allegedly agreed need not be in writing. It is a matter of inference from certain proved facts revealed from the record during trial. No illegality or perversity is found in the impugned order which is supported by reasons. Hence no interference. Petition stands dismissed at the stage of admission. At the request of the learned counsel for the petitioner, effect and operation of the order is stayed for a period of eight weeks. N.D.Deshpande, J - 9 - 303.11 - 10 - 303.11 - 11 - 303.11 - 12 - 303.11 - 13 - 303.11 - 14 - 303.11 - 15 - 303.11