( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRI. WRIT PETITION NO. 1046 OF 2009 Dr. Bhalchandra Daulat Salvi, Age 76 years, Occ. Profession, R/o At post Sonai, Tq. Newasa, District Ahmednagar PETITIONER V E R S U S The State of Maharashtra RESPONDENT Mr. S.S. Deshmukh, Advocate for the petitioner Mr. D.R. Korde, APP for the respondent / State CORAM : A.V.NIRGUDE,J. DATED : 19th April, 2010 ORAL JUDGMENT 1. Heard. 2. Rule. Rule made returnable forthwith. By consent of parties, petition is taken up for final hearing. 3. The Writ Petition challenges the order passed by the learned Sessions Judge, Ahmednagar, in Sessions Case No. 128 of 2009, rejecting the petitioner’s application under Section 227 of Code of Criminal Procedure seeking discharge. The Sessions Case No. 128 of 2009 arose from Crime No. 135 of 2009. 4. One Peter Salvi, a Lawyer of Ahmednagar was found dead in his ( 2 ) house on 29th March, 2009, at about 03.00 p.m. Peter’s nephew immediately lodged complaint and the police registered the offence of murder. It is probably not in dispute that the present petitioner, who was cousin of deceased Peter, had long standing civil litigation with deceased Peter. The petitioner himself is a old person of 75 years and is practicing Medicine. The other four accused are the petitioner’s son abhijit, his wife Harjitkaur, Ranjit and Kishor. It is the prosecution case that Abhijit, his wife Harjitkaur and the the petitioner hatched a conspiracy to eliminate Peter and engaged the other two accused for committing his murder. 5. Abhijit, his wife Harjitkaur and the other two accused were apprehended while they traveling in a vehicle, on 31st March, at about 10.30 p.m. There is ample material on record to show that accused Ranjit and Kishor had killed Peter at the instruction of accused Abhijit and his wife Harjitkaur. The petitioner is roped in this case mainly because he happened to be father of the accused Abhijit and that he had long standing litigation with the deceased. 6. It is the prosecution case that the petitioner had enmity with the deceased. It is not in dispute that the petitioner is not resident of Ahmednagar, but resides at village Sonai, Taluka Newasa, District Ahmednagar, a place about 40 k.m. Away from the place where the incident took place. It is also not in dispute that other accused Abhijit and his wife stayed at Ahmednagar. 7. The material that the police could collect against the petitioner is that after the incident of murder of 29th March, 2009, he had, at about 06.00 p.m., called up his daughter-in-law Harjitkaur on her mobile phone. The prosecution also rely on ( 3 ) two calls that his son and his daughter-in-law made to the petitioner during that evening. The prosecution further places reliance on two more calls that the petitioner’s son Abhijit made on 30th March to the petitioner. The prosecution further placed its reliance on a call which accused Abhijit made to the petitioner on 31st March, 2009. The prosecution further placed reliance on two calls which the petitioner made during morning hours of 1st April, 2009 to his son – accused Abhijit. The prosecution does not have transcription of the conversation that took place between the parties. The prosecution does not rely on any material which points out holding of any meeting between the petitioner and his son, or, between the petitioner and his daughter-in-law before the incident took place. There is nothing on record to show that the petitioner had made any phone call or had any contact with the accused Nos. 1 and 2, the alleged contract killers. 8. In order to prove the conspiracy, the prosecution has to have material to not only connect the accused interse, but to indicate that there was meeting of minds between them prior to the alleged crime. As said above, there is nothing on record to show that the petitioner had any contact with the other four accused prior to the incident. It is thus clear that the prosecution suspects the involvement of the petitioner in this case only because he happened to be the father of one of the accused, father-in-law of the other accused and had enmity with the deceased. The enmity would certainly give a strong motive to a person to commit a crime of this nature. But, merely because, the petitioner had possible motive of committing murder of the deceased, he cannot be prosecuted for the murder of his enemy. In ( 4 ) order to rope the present petitioner in this case, the prosecution must produce on record sufficient material to prima facie hold that the petitioner had hatched criminal conspiracy with the other accused for committing murder of Peter Salvi. The basic ingredients of the offence of criminal conspiracy are; an agreement between two or more persons and the agreement must relate owing to be done either by an illegal act, or an act which is not illegal in itself but is done by illegal means. It is common knowledge that a criminal conspiracy is in secrecy, as also in most of the matters, adduces direct evidence of the common intention of the conspirators. Therefore, it is necessary for the prosecution to at least bring circumstances on record to show meeting of minds of the conspirators. As said above, in this case, the prosecution has not brought on record the circumstances, which would indicate, prima facie, that there was meeting of minds between the petitioner and other accused. The learned Judge of the trial Court though placed reliance on the Judgment of the Supreme Court in the case of Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra (2008) 10 Supreme Court Cases 394), did not read the Judgment properly to apply its ratio to the facts of the case. The Supreme Court in this Judgment reiterated the Law which is stated by the Supreme Court in the case of State of Bihar v. Ramesh Singh (cited supra). The petition should therefore succeed. 9. I think, the petitioner had every reason to make an application under Section 227 of Code of Criminal Procedure for seeking discharge from this case. Section 227 of Code of Criminal Procedure reads as under : “Section 227. Discharge – If, upon consideration of the record of the case ( 5 ) 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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 10. What is required to be shown by the accused in such application, is that there is “no sufficient ground for proceeding” against him. Now, what is called ‘sufficient ground for proceeding’ is discussed in the Judgment of Supreme Court in the case of State of Bihar v. Ramesh Singh (AIR 1977 SC 2018). The Supreme Court held that if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. From the facts narrated above, at the most one can say that there could be merely suspicion against the petitioner for committing this offence. But, suspicion alone is not sufficient ground for proceeding against such an accused. The Supreme Court in the Judgment of P. Vijayan v. State of Kerala and Anr. (2010 AIR SCW 886) made distinction between 'suspicion' and 'gave suspicion', and held, that if the facts show suspicion against an accused, the trial Court would be empowered to discharge such an accused under Section 227. The Supreme Court held, in paragraph No. 10, as under “If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere Post Office to frame the charge at ( 6 ) the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 11. Having regard to the Law laid down, I think the learned Judge of the trial Court committed an error in holding that there was sufficient prima facie evidence against the petitioner to frame the charge. The learned Judge of the trial Court committed an error in giving undue importance to the long standing enmity between the deceased and the petitioner. 12. In the result, the petition is allowed, in terms of prayer clause ‘B’ and ‘C’ of the petition. Rule made absolute in above terms. sd/- [A.V.NIRGUDE,J.] SRM/criwp/1046/09/ok