1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.178 OF 2010 Pralhad S/o.Eknath Zagade, Age-56 years, Occu-Service, R/o.Pathrud, Tq.Majalgaon, Dist. Beed, presently at Majalgaon, Tq.Majalgaon, Dist. Beed APPLICANT VERSUS 1. The State of Maharashtra Through Police Station, Majalgaon, Dist. Beed 2. Bhagwat S/o.Shankarrao Vedpathak, Age-56 years, Occu-Agriculturist, R/o.Pathrud, Tq.Majalgaon, Dist. Beed RESPONDENTS Mr.S.J.Salunkhe, learned counsel for applicant. Mrs.V.A.Shinde, learned APP for State CORAM : A.V.POTDAR, J. DATE : 23/07/2010 ORAL JUDGMENT : 1. By the present application, the applicant has approached this Court to assail the order passed by the learned Additional Sessions Judge, Majalgaon, below Exh.11, in Sessions case No.11/2010, by which application of the applicant for discharge u/s. 227 of The Cr.P.C. was rejected. 2 2. Heard learned counsel for applicant, learned APP for State. Perused the impugned order passes below Exh.11 and the material collected against the applicant while filing the charge sheet. 3. Rule. 4. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission itself. 5. CR No.162/2009 was registered in Majalgaon Police Station on the basis of complaint lodged by one Bhagwant, the father of deceased Santosh on 08/08/2009. The said complaint was lodged against present applicant, one Dnyaneshwar and 3-4 unknown persons. 6. Papers of investigation discloses that initially after completion of investigation, charge sheet was filed only against Dnyaneshwar on 07/11/2009. It appears that present applicant came to be arrested in connection with this crime on 15/12/2009, and thereafter, supplementary charge sheet was filed against Dnyaneshwar. A foot note was put by the Investigation Officer concerned that he is filing additional charge sheet u/s. 173(8) of Cr.P.C. against the other persons, whose names were disclosed during the investigation. The fact is clear from this foot note that as at the time of filing of charge sheet against Dnyaneshwar on 07/11/2009, neither this applicant was arrested nor he was available for investigation, as the applicant 3 was arrested after filing of charge sheet. 7. During the course of submissions across the bar, relying on various judgments of this Court and Apex Court, it is tried to urge that the charge sheet filed against the present applicant is based on grave suspicion and there is no cogent evidence to link the applicant accused in connection with the charges for which he is to be prosecuted before the Court of Sessions Majalgaon. 8. With the assistance of learned counsel for applicant, and learned APP for State, perused the papers of investigation carried out while filing the charge sheet against the present applicant. According to the learned counsel for applicant, the applicant came to be arrested and roped in this offence on the basis of disclosure statement made by deceased Santosh while he was taken to the hospital in Auto by his parents and others. At that time, as per the statement of the complainant, the injured disclosed the name of present applicant, Dnyaneshwar and 3-4 unknown persons, but specifically gave name of applicant and Dnyaneshwar. According to the learned counsel for applicant, statement of the Auto Driver, recorded during the investigation is not supported by the statement of the complainant. Likewise, statement of Mahananda, the wife of the complainant, also do not whisper about it, as according to her when the deceased was shifted to the hospital, the deceased was in un-conscious condition. According to learned counsel for applicant, considering this scenario, the statement of the complainant to be 4 discarded while statement of other witnesses are to be accepted. According to him, this is a case of grave suspicion and not the circumstance against the applicant to link with the alleged offence. This court is not in agreement with these submissions across the bar. 9. Perusal of the recent judgment delivered by the Division Bench of this Court in the matter of Govind Sakharam versus State of Maharashtra, reported in ALL MR (Cri.) 1903, wherein the judgment in the matter of Niranjansing Panjabi versus state, reported in AIR 1990 SC 1962 is discussed in para no.19. In the judgment cited supra, there is also reference of the judgment in the matter of Supdt. and Remembrancer of Legal Affairs, West Bengal Vs.Anil Bhunja and others, reported in AIR 1980 SC 52, which are guiding judgments of the Apex Court on the point when the discharge u/s. 227 of The Cr.P.C. to be granted to the accused in the criminal trials before the Court of Sessions. In para no.25, it is observed by the Division Bench of this Court that - The principles laid down by the Supreme Court in the above cases need to be summarized. it is settled law that at the stage of Section 227 of the Code, the Court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The Court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court's enquiry must not be 5 directed to find out whether the case will end in conviction. However, though roving inquiry is not permissible, the court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross-examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of Section 227 or section 228, the scales as to the guilt or innocence of the accused are even then the court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the Court to think that there is a ground for presuming that the accused has committed an offence, then the Court will proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the Court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court can not make a roving enquiry into the pros and cons of the matter and weight the evidence as if it is conducting a trial. Probative value of the material can not be gone into at that stage. 10. Bearing in mind the guidelines provided as to when the discharge to be granted u/s. 227 of The Cr.P.C., the fact is clear that if there is prima facie evidence, involving the person arrayed as an accused in the charge sheet, then in such cases, discharge application of the accused to be rejected. There is difference between grave suspicion and prima facie evidence. In the case in hand, it is 6 clear from the allegations in the complaint that while shifting the injured Santosh to the hospital in Auto, deceased himself had disclosed the name of present applicant and Dnyaneshwar which is called prima facie evidence against the applicant about his involvement. It can not be termed as a case of grave suspicion as the statement in the complaint is not supported by other witnesses. Whether the statement in the complaint to be believed or not, it is a matter to be tested on the test of cross examination at the time of trial, but that benefit can not be made available to the applicant at this juncture. In the result, revision application is sans any merit, hence rejected. 11. Rule stands discharged. No order as to costs. 12. Learned Trial Court not to influence with the observations passed by this Court. (A.V.POTDAR, J.) khs/JULY 2010/cri-rev-178-10