... 1 ... IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL REVISION APPLICATION NO.67 OF 2008 Anant s/o Yashwant Volvoikar, Indian National, r/o House No.151, near T.B. Hospital, Chincholem, Taleigao, Goa. ... Applicant v e r s u s 1. The State of Goa, through Police Inspector, Calangute Police Station, Calangute, Goa. 2. Sunil s/o Baijnath Thukal, Indian National, r/o 7-A/F-1, Model State Phase – III, Caranzalem, Goa, and 148 Anand Avenue, Amritsar, Punjab, 143 001 (currently in Judicial Custody) 3. Ashpak Bengre @ Khan @ Khan @Jack @ Samir, Indian National, r/o House No.134/7, Sonarbhat, Betim, Bardez-Goa. (currently in Judicial Custody) ... Respondents ... 2 ... Mr. S. D. Lotlikar, Senior Advocate with Mr. Ryan Menezes, Advocate for the Applicant. Ms. Winnie Coutinho, Public Prosecutor for the respondent no.1. CORAM: C. L. PANGARKAR, J. DATE : 13th JANUARY, 2009. JUDGMENT: Rule, heard forthwith with consent of parties. 2. This is a Criminal Revision Application by the original accused no.2. The original accused no.2 has preferred this revision because of the fact that the learned Sessions Judge has refused to discharge him in Sessions Case No.25/2006. ... 3 ... 3. A few facts may be stated thus: The accused no.2 i.e. the present petitioner is facing sessions trial before the Sessions Judge, Panaji. It is alleged that the present petitioner hatched a conspiracy alongwith accused no.1 to do away with one Praveen Grover. Praveen Grover had business relations with the present petitioner as well as accused no.1/Sunil Thukral. The disputes arose between them and accordingly a conspiracy was hatched and the deceased was killed actually by accused no.3/Ashpak Bengre. After the investigation was over, charge sheet came to be filed against the three accused i.e. the present petitioner, Sunil Thukral and Ashpak Bengre. 4. When the Court proceeded to frame charge ... 4 ... against the accused, the learned counsel for the accused requested to hear him before framing of the charge. The counsel addressed the Court with a sole objective that the Court should discharge the accused. The Sessions Judge passed an order on 30th November, 2007 refusing to discharge the accused and directed that charge be framed. Against this order, Criminal Revision Application was preferred before this Court being Criminal Revision Application No.01/2008. The said revision was allowed and the matter was remitted to the Sessions Judge and the Sessions Judge was directed to consider the objection raised by the learned counsel for the accused. The learned Sessions Judge once again passed an order on 08.04.2008 refusing to discharge the accused. The accused once again came before this Court in Criminal Revision Application No.33/2008. It was urged by the accused that the accused were not heard at all and ... 5 ... therefore, the order passed by the Sessions Judge was set aside and the matter was once again remitted back to the Sessions Judge to give an opportunity to the counsel to urge the grounds for discharge. Thereafter, the learned Sessions Judge heard the counsel for the accused/petitioner and the State and rejected the prayer for discharge and proceeded to frame the charge. Being aggrieved by that, this revision has been preferred. 5. I have heard the learned counsel for the petitioner and the respondents. 6. Learned counsel for the petitioner contended that in the instant case, the accused no.2 ought to have been discharged. According to him, there is not even an iota of evidence against him and therefore, he should not be required to undergo the ... 6 ... rigor of a sessions trial. He submitted that what is available against the accused is merely a suspicion. He also submitted that suspicion is therefore, no evidence at all. As regards Brain Electrical Oscillation Signature Profiling Test, he contended that such reports have corroborative value and corroborative piece of evidence cannot be looked into unless some substantive evidence is available. Even if evidence that is available on record is taken on its face value that could not be treated as sufficient to hold that there was sufficient ground to presume that the accused has committed the crime. 7. It is obvious from the words of section 227 and 228 of the Code of Criminal Procedure that the Court should be able to form an opinion upon consideration of the record of the case and the documents, that there exists a ground for presuming ... 7 ... that the accused has committed the crime. 8. Shri Lotlikar, learned Senior counsel had relied on two decisions of the Supreme Court in submitting that the Court is not required to weigh the evidence and prima facie has to find out whether there is evidence. The first decision is Pepsi Foods Ltd. and anr. v. Special Judicial Magistrate and ors. reported in (1998) 5 Supreme Court Case 749. He had invited my attention to paragraph 29 which reads as follows: “No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when ... 8 ... the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that “in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused”. We do not think that the High Court was correct in coming to such a conclusion ... 9 ... and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appear before the court and move an application under Section 245(2) of the Code and that the Magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants do not make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegations. The allegations in the complaint merely show that the appellants have given their brand name ... 10 ... to “Residency Foods and Beverages Ltd.” for bottling the beverage “Lehar Pepsi”. The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturers of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as Accused 3. The preliminary evidence on which the first respondent relied in issuing summons to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short ... 11 ... “the Fruit Order”). It is not disputed that the beverage in question is a “fruit product” within the meaning of clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirements is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of the manufacturer shall also be exhibited prominently on the side label on such bottle [clause (8)(1) (b)]. Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the ... 12 ... bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in Hamdard Dawakhana (Wakf) v. Union of India an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof. ... 13 ... 9. The Supreme Court found that if charge was groundless, the Magistrate should discharge the accused. In the instant case, to my mind the allegations and material on record prima facie show the nexus of the accused with the crime. 10. The other decision is Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra reported in (2008) 10 Supreme Court Cases 394. Paragraph 15 reads as under: “It is trite that the words “not sufficient ground for proceeding against the accused” appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this ... 14 ... fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this state, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, it unrebutted, make a conviction reasonably possible. (See State of Bihar v. Ramesh Singh and Pradulla Kumar Samal).” ... 15 ... 11. To my mind even if the ratio in this decision is to be followed, the case at hand is certainly of grave suspicion. The reason as to why the case in hand falls in the category of grave suspicion which follows. 12. The learned Sessions Judge in fact passed an elaborate order discussing every aspect of the evidence available. In the instant case, it is the case of the prosecution that the accused no.1 and 2 hatched conspiracy and entrusted the job of eliminating the deceased to the accused no.3 and the accused no.3 executed it. It is thus, clear that it is not the prosecution case that the accused no.1 and 2 have participated in the act of murder. Therefore, there could be neither direct evidence nor circumstantial evidence against the accused no.1 in ... 16 ... respect of the actual assault on the deceased. 13. The case against both the accused no.1 and 2 is of conspiracy. Conspiracy is always hatched in secrecy. It is seldom possible to adduce direct evidence of conspiracy. Conspiracy can be proved from the acts or illegal omissions committed by the conspirators, in pursuance of their common design. In the case of Shivnarayan Laxminarayan Joshi and ors. v. State of Maharashtra and ors. reported in AIR 1986 Supreme Court 439 it is observed thus: “A conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence for the same and the offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design.” ... 17 ... 14. What becomes therefore evident is that the past and subsequent conduct of that person is to be taken into account to draw the inferences. Accused no.2 was required to undergo Brain Electrical Oscillation Signature Profiling Test Report. The report is reproduced by the Sessions Judge and I deem it necessary to reproduce the same below: “Responses to the probes indicate that Anant Volvoikar instigated Sunil Thukral against Praveen Grover. Sunil Thukral had threatened Praveen Grover that Sunil would kill Praveen. Anant Volvoikar found Ashpak Bengre as the right person to kill Praveen Grover. Praveen had done money scandal. Snit had made a plan to kill Praveen. Anand and Sunil had decided to kill Praveen. They anyhow wanted to get rid of Praveen. Anand had given Praveen's residence address to ... 18 ... Ashpak. Sunil told Anant that assign Praveen's murder task to Ashpak.” 15. This report is one of the pieces available which needs to be taken into consideration in the back ground of the evidence of certain witness, namely the wife of the deceased, Amita Grover and one Pushpa who was serving with the deceased as well as the accused. Amita stated that there were dispute between the deceased and the accused no.1 and 2 over the ownership of the resort. She has stated that there were dispute between them since the year 2000 and since then both the accused were threatening the deceased with dire consequences. She has stated that the accused no.1 and 2 had attacked the deceased on three occasions through goondas and on all three occasions complaints were filed. The learned Sessions Judge has reproduced the actual statement of ... 19 ... Amita Grover. It is once again reproduced here for the purpose of convenience : “I am cent percent sure that Mr. Sunil Thukral and Anant Volvoikar have killed my husband today evening by shooting him......... I further say that just because both Mr. Sunil Thukral and Anant Volvoikar after trying their level best to attack my husband earlier did not succeed and due to frustration must have well planned by hatching criminal conspiracy and used hired goondas and killed my husband thinking that by doing so they will win the cases pending before the Court. We have no other enemies except Mr. Sunil Thukral and Mr. Anant Volvoikar who have always ... 20 ... threatened us earlier and hence we were living in fear from these two persons. Since both of them are well aware that they could not do anything directly to my husband they used some other person to eliminate my husband by giving contract as both of them have money power, muscle power through which both of them succeeded in doing so.” 16. Not only the wife of the deceased has stated that Sunil Thukral and Anant Volvoikar had hatched a conspiracy and had entrusted the work to the accused no.3 but also Pushpa who was the Manager of the resort and working with the deceased and the accused and that money was paid through her to accused no.3 to eliminate the deceased. The learned Sessions Judge has rightly ... 21 ... held that this material on record which is referred to above, was sufficient to presume that there is a ground to proceed against the accused. 17. The Supreme Court in a recent decision in Sanghi Brothers (Indore) Private Limited v. Sanjay Choudhary and ors. reported in (2008) 10 Supreme Court Cases 681 has observed as follows: “After analyzing the terminology used in the three pairs of sections it was held (in Antulay case) that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case is to be applied. The present case is not one where the High Court ought to have interfered with the order of framing the ... 22 ... charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed.” 18. What can be deduced from the decision is that even if there is strong suspicion charge should be framed. It is stated by the Supreme Court that in such cases, High Courts should not interfere. In the instant case, there is certainly evidence available to hold that strong suspicion is available. The order passed by the learned Sessions Judge therefore, calls for no ... 23 ... interference. There is no substance in the revision, it is therefore, dismissed. Rule discharged. C. L. PANGARKAR, J. lh/.