1 HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1406 OF 2009 Janardan Bhiva Koli ... Applicant. Vs. State of Maharashtra ... Respondent. Mr. Prakash Naik for the Applicant. Mr. S.S. Pednekar, APP for State/Respondent. CORAM: A.S. OKA, J. DATE: 24TH APRIL, 2009. JUDGMENT: 1 Rule. The learned APP waives service for the respondent. By consent taken up for final disposal. The applicant has been arraigned as an accused in connection with Crime No.I-8/2007 registered with Wadkhal police station, district Raigad for the offence punishable under section 302 of the Indian Penal Code. The concerned officer of the Wadkhal police station completed the investigation and filed a chargesheet against the applicant and others. 2 Further investigation of the case was ordered. Further investigation was carried out by the Deputy Superintendent of Police, State CID, Alibag. After completing the investigation, the said officer submitted a report dated 14th November 2008 which is at Exh.44 on record of the trial court. 2 In the said report, it was mentioned that investigation discloses that there is no evidence against the present applicant and others and therefore, they may be set at liberty. It was mentioned that the said report was submitted after approval of the Additional Director General of Police. It was stated in the report that only one Santosh Laxman Shirke deserves to be chargesheeted. On the basis of said report an application for the discharge was filed by the Applicant before Sessions Court. 3 A reply dated 3rd February, 2009 was filed by the said Investigating officer (Deputy Superintendent of Police) to the said discharge application recording therein that there was no evidence against the applicant and therefore, the State had no objection for passing an order of discharge. By the order dated 13th March, 2009, the learned Sessions Judge rejected the application for discharge. The learned Judge observed that no prior permission was sought by the Agency for carrying out further investigation. The learned Judge observed that an order was already passed on 30th July 2008 holding that there was a prima facie evidence against the applicant to frame charge on the basis of material produced at the initial stage. The learned Judge held that it was only a matter of trial to decide whether the applicant has played any role. 4 This Court granted time to the learned APP to take 3 instructions. After taking instructions, he pointed out that the further investigation revealed that there was no material against the Applicant. The learned APP on instructions of the concerned officer stated that the State will abide by the report submitted by the Deputy Superintendent of Police on 14th November 2008. 5 Perusal of the record shows that after carrying out further investigation the Deputy Superintendent of Police of the State CID came to the conclusion that there is absolutely no evidence against the applicant and he should be released for want of evidence. The said stand was also taken in the reply to the application for discharge. Thus, the investigating officer of the rank of the Deputy Superintendent of Police who carried out further investigation has clearly stated that there was absolutely no evidence against applicant to proceed against him. The learned Sessions Judge placed reliance on the order dated 30th July 2008 holding that there was a prima facie case against the Applicant. However, he ignored that the report at Exhibit-44 was submitted in November 2008. By a reply in writing, the State had given no objection to discharge the Applicant. Therefore, there was no justification for the learned Judge for rejecting the application for discharge. 6 Hence, this application succeeds and I pass the following order: 4 (i) The impugned order dated 13th March, 2009 is quashed and set aside. (ii) The application made by the applicant at Exh.51 in Sessions Case No. 176 of 2007 is allowed and the applicant is discharged from the said case. JUDGE 5 HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1406 OF 2009 Janardan Bhiva Koli ... Applicant. Vs. State of Maharashtra ... Respondent. Mr. Prakash Naik for the Applicant. Mr. S.S. Pednekar, APP for State/Respondent. CORAM: A.S. OKA, J. DATE: 24TH APRIL, 2009. P.C. 1 For the reasons recorded separately in the judgment, the following order is passed:- (i) The impugned order dated 13th March, 2009 is quashed and set aside. (ii) The application made by the applicant at Exh.51 in Sessions Case No. 176 of 2007 is allowed and the applicant is discharged from the said case. JUDGE