1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 167/2010 1 2 3 4 Naresh Balkisan Agarwal, Age : 55 years, R/o 13/1, Mathura Road Faridabad at present B-74/2 Waluj M.I.D.C. Area, Aurangabad. Ram Trimbak Sagre, Age : 45 years, Occu. Service, R/o B-74/2 Waluj M.I.D.C. Area, Aurangabad. Amit Ganpatlal Parekh, Age : 51 years, Occu. Service, R/o B-74/2 Waluj M.I.D.C. Area, Aurangabad. Sanjay Kondiba Dahiwal Age : 34 years, Occu. Service, Mayur Park, Jalgaon Road, Aurangabad. ...Revision Applicants. Versus State of Maharashtra, through P.S.O., M.I.D.C., Waluj Police Station, Aurangabad. ...Respondent. Mr. S.S. Wagh, Advocate for applicants. Mr. S.N. Kendre, A.G.P. for State. CORAM : A.V. NIRGUDE, J. Date : 26th August, 2010. 2 ORAL ORDER:- 1 The revision challenges the order passed by the learned Additional Sessions Judge-1, Aurangabad in Sessions Case No. 296/2009 on the applicants’ application seeing discharge. 2 The applicants are original accused Nos. 5 to 8 in Sessions Case No. 296/2009. The offences under Sections 143 147, 149, 323, 337, 338, 307 of Indian Penal Code are alleged against the applicants and other accused. The complaint dated 09/03/2005 narrates incident as under. Since 07/03/2005 the complaint and other workers of the Industry managed by the applicants went on strike. They were sitting in front of the gate of Company for strike. On 09/03/2005 at about 1.00 p.m., riots started between the strike workers and the Company’s staff. Both the sides pelted stones at each other. In addition to this, the security personnel of the company fired shots from their riffles allegedly at the striking workers. The members of both the sides sustained injuries. At the time of incident, the present applicants were standing in front of the gate of the company and were instigating the security staff saying, they should keep firing at the striking workers. They were uttering words “Udav Udav”. This is the only material against the present applicants. The other eye witnesses initially did not attribute such a role to them. But subsequently they attributed this role to them. The learned judge of the lower Court rejected the applicants’ application seeking discharge and against that, this revision is filed The question before this Court is whether there is sufficient 3 prima facie material against the present applicants to continue their trial and not to discharge them. The judgment of the Supreme Court in the case of Dilawar Babu Kurane Versus The State of Maharashtra reported in AIR 2002 S.C. 564 is the guide line, for deciding the present application. The Supreme Court observed in this judgment as under:- "In exercising powers under Section 227 of the Code of 13 Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence 4 and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." 3 From the material that has come on record against the applicants, a strong prima facie case appears against the applicants that they were instigating the other accused for continuing the attack on the victims. The case against present applicants is better than mere grave suspicion. I do not think that there is possibility of two views, to appreciate the material against the applicants. The material unequivocally suggests that the applicants were present when the incident took place and were instigating the other accused. In view of this, the revision shall fail. ORDER The revision stands dismissed. The observations made in this order shall not influence the learned judge of the trial Court at the time of appreciating evidence. (A.V. NIRGUDE, J.) task/