CAPTAIN MANJIT SINGH VIRDI (RETD.) versus HUSSAIN MOHAMMED SHATTAF & ORS.
[2023] 6 S.C.R. 469, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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CAPTAIN MANJIT SINGH VIRDI (RETD.)
v.
HUSSAIN MOHAMMED SHATTAF & ORS.
(Criminal Appeal No. 1399 of 2023)
MAY 18, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Code of Criminal Procedure, 1973 – Application for
discharge – Victim’s body was found in a pool of blood in his bedroom
– After investigation, charge-sheet was filed against respondent
nos.1 & 2 – Trial Court had not yet framed charges – Immediately
after filing of charge-sheet, application for discharge was filed –
The same was dismissed by the Trial Court – However, the High
Court set aside the order passed by the Trial Court and discharged
respondent nos. 1 & 2 – On appeal, held: The settled proposition of
law is that at the stage of hearing on charges entire evidence
produced by the prosecution is to be believed – In case no case is
made out, then only an accused can be discharged – At the stage of
charge, the Court has to satisfy that a prima facie case is made out
against the accused persons – In the instant case, the High Court
had not referred to the evidence collected by the investigating agency
produced along with charge-sheet in its entirety – Rather there is
selective reference to the statements of some of the persons recorded
during investigation – There was no reference to the psychological
evaluation including psychological profiling, polygraph testing and
brain electrical oscillations signature profiling (BEOS) tests of the
accused and the other aides of respondent no.1 – Respondent
nos.
1 & 2 were discharged without application of mind – High Court
had exercised the jurisdiction in a manner which is not vested in it
to scuttle the trial of a heinous crime.
Allowing the appeal, the Court
HELD: 1. The law on issue as to what is to be considered
at the time of discharge of an accused is well settled. It is a case
in which the Trial Court had not yet framed the charges.
Immediately after filing of chargesheet, application for discharge
was filed. The settled proposition of law is that at the stage of
hearing on the charges entire evidence produced by the
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prosecution is to be believed. In case no offence is made out
then only an accused can be discharged. Truthfulness, sufficiency
and acceptability of the material produced can be done only at
the stage of trial. At the stage of charge, the Court has to satisfy
that a prima facie case is made out against the accused persons.
Interference of the Court at that stage is required only if there is
strong reasons to hold that in case the trial is allowed to proceed,
the same would amount to abuse of process of the Court. [Para
11][473-D-F]
2. The High Court vide impugned order had summed up
the entire evidence in two paras without even referring to the
Psychological Evaluation including Psychological Profiling,
Polygraph Testing and Brain Electrical Oscillations Signature
Profiling (BEOS) tests of the accused and the other aides of
respondent no.1 and ordered discharge of Respondent Nos.1 and
2. [Para 18][477-G-H; 478-A]
3. Though Psychological Evaluation test report only may
not be sufficient to convict an accused but certainly a material
piece of evidence. Despite this material on record, the High Court
could not have opined that the case was not made out even for
framing of charge, for which only prima facie case is to be seen.
[Para 19][478-B]
4. If the facts of the case are examined in the light of law
laid down by this Court on the subject, it is evident that the High
Court has not even referred to the evidence
collected by
Investigating Agency produced alongwith chargesheet in its
entirety. Rather there is selective reference to the statements of
some of the persons recorded during investigation. It shows that
there was total non-application of mind. The High Court had
exercised the jurisdiction in a manner which is not vested in it to
scuttle the trial of a heinous crime. [Para 20][478-B-D]
State of Rajasthan v. Ashok Kumar Kashyap (2021) 11
SCC 191 – relied on.
State of Maharashtra and Anr. v. Dr. Maroti
S/o. Kashinath Pimpalkar (2023) 4 SCC 298 – referred
to.
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Case Law Reference
(2023) 4 SCC 298
referred to
Para 4
(2021) 11 SCC 191
relied on
Para 12
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1399 of 2023.
From the Judgment and Order dated 17.07.2013 of the High Court
of Judicature at Bombay in CRLRA No. 135 of 2012.
Kunal Cheema, Shivam Dube, Raghav Deshpande, Advs. for the
Appellant.
Siddhartha Dave, Sr. Adv., Himanshu Bhushan, Ms. Aakriti Priya,
Kanu Agarwal, Siddhart Dharmadhikari, Aaditya Aniruddha Pande,
Bharat Bagla, Sourav Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
RAJESH BINDAL, J.
1. The order dated 17.07.2013 passed by the High Court of
Judicature at Bombay in Revision Application No. 135 of 2012 has been
challenged by the appellant. By the aforesaid order, the High Court has
set aside the order dated 21.02.2012 passed by the court below vide
which application filed by the Respondent nos.1 and 2 for discharge,
was dismissed.
2. The dispute arises out of an FIR No. 46 of 2006 registered at
Lonawala City Police Station on 14.05.2006 for murder of Manmohan
Singh Sukhdev Singh Virdi, a resident of Virdi’s Bungalow, Thombarewadi,
Lonawala. His body was found lying in a pool of blood in his bedroom.
3. Learned counsel appearing for the Appellant submitted that a
bare perusal of the impugned order passed by the High Court shows
that a mini trial has been conducted merely by referring to some of the
statements recorded by the police during investigation, which were
forming part of the chargesheet. This was beyond the scope of jurisdiction
of the Court at the time of consideration of application for discharge.
The Court had failed to consider the fact that there was Psychological
Evaluation including Psychological Evaluation including Psychological
Profiling, Polygraph Testing and Brain Electrical Oscillations Signature
Profiling (BEOS) conducted on Respondent Nos. 1 and four other aides
CAPTAIN MANJIT SINGH VIRDI (RETD.) v. HUSSAIN
MOHAMMED SHATTAF & ORS.
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of respondent no.1, which lead towards the accusation of Respondent
Nos. 1 and 2 in the crime.
4. In support of the arguments, learned counsel for the appellant
has placed reliance upon the judgment of this Court in the case of State
of Maharashtra and Anr. v. Dr. Maroti S/o.Kashinath Pimpalkar1.
5. On the other hand, learned counsel for Respondent Nos. 1 and
2 submitted that it is a case of blind murder, hence, there was no eye-
witness. There was no enmity of Respondent Nos. 1 and 2 with the
deceased. They were happily living in the neighbourhood. A false story
was built up by the prosecution for which there is no material to support.
He further submitted that Trial Court had failed to exercise jurisdiction
vested in it to discharge the respondent no. 1 and 2. They have been
falsely implicated in the case. It would be abuse of the process of the
Court in case they are made to face trial. The relevant material collected
by the prosecution was considered by the High Court.
6. Though the order passed by the High Court as such has not
been challenged by the State. The learned counsel for the State having
no explanation therefor sought to argue that the impugned order cannot
be legally sustained as at the stage of consideration of application for
discharge, appreciation of the evidence as such was not possible as the
same could be only after the evidence is recorded in the Court after
trial. At the stage of framing of
charge only prima facie case is to be
seen.
7. Heard learned counsel for the parties and perused the record
and relevant papers.
8. After registration of FIR, investigation was conducted and
statements of number of persons were recorded under Section 161 and
164 of Cr.P.C. Even a Psychological Evaluation including Psychological
Profiling, Polygraph Testing and Brain Electrical Oscillations Signature
Profiling (BEOS) of Respondent No. 1 was conducted on 31.5.2007
and similar tests were conducted on the other four persons viz. Baliram
Chidhu Khade, Mohan Vijayamma Shridharan, Ashok Gajraj Chaudhary,
Mehboob Dastagi Sheikh who were close aides of respondent no.1.
9. As it was a blind murder, the crime was investigated and
chargesheet dated 09.12.2009 was filed against Hussain Mohammed
1 (2023) 4 SCC 298
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Shattaf and Waheeda Hussain Shattaf (Respondent nos. 1 and 2) and
Zaanish Khan stating therein that while Respondent no.1 was staying in
Dubai for the purpose of his business, his wife respondent no.2 came in
contact with the deceased and developed friendship. They started
meeting each other frequently. The friendship turned into physical
relationship. When the Respondent No.1 returned from Dubai, he came
to know about the same. To take revenge, he in connivance with
respondent no.2 and one Zaanish Khan conspired to kill the deceased
through unknown assailants.
10. As the case was triable by Sessions, the matter was committed
by the Magistrate to the Sessions Court, Pune. Immediately thereafter
Respondent Nos. 1 and 2 filed revision application for discharge. The
same was dismissed by the Trial Court vide Order dated 21.02.2012.
The High Court vide impugned order had set aside the order passed by
the Trial Court and discharged Respondent Nos. 1 and 2. The aforesaid
order is under challenge before this Court.
11. The law on issue as to what is to be considered at the time of
discharge of an accused is well settled. It is a case in which the Trial
Court had not yet framed the charges. Immediately after filing of
chargesheet, application for discharge was filed. The settled proposition
of law is that at the stage of hearing on the charges entire evidence
produced by the prosecution is to be believed. In case no offence is
made out then only an accused can be
discharged. Truthfulness,
sufficiency and acceptability of the material produced can be done only
at the stage of trial. At the stage of charge, the Court has to satisfy that
a prima facie case is made out against the accused persons. Interference
of the Court at that stage is required only if there is strong reasons to
hold that in case the trial is allowed to proceed, the same would amount
to abuse of process of the Court.
12. The law on the point has been summarised in a recent judgment
of this Court in State of Rajasthan v. Ashok Kumar Kashyap2. Relevant
paras are extracted below: -
“11.1. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, this
Court had an occasion to consider Section 227 CrPC What is
required to be considered at the time of framing of the charge
and/or considering the discharge application has been considered
2 (2021) 11 SCC 191
CAPTAIN MANJIT SINGH VIRDI (RETD.) v. HUSSAIN
MOHAMMED SHATTAF & ORS. [RAJESH BINDAL, J.]
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elaborately in the said decision. It is observed and held that 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. It is observed that in other words,
the sufficiency of grounds 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. It is further observed that if the Judge comes to a conclusion
that there is sufficient ground to proceed, he will frame a charge
under Section 228 CrPC, if not, he will discharge the accused. It
is further observed that while exercising its judicial mind to the
facts of the case in order to determine whether a case for trial
has been made out by the prosecution, 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.
11.2. In the recent decision of this Court in State of
Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, one of us (D.Y.
Chandrachud, J.) speaking for the Bench has observed and held
in para 25 as under:
“25. The High Court [M.R. Hiremath v. State, 2017 SCC
OnLine Kar 4970] ought to have been cognizant of the fact that
the trial
court was dealing with an application for discharge under
the provisions of Section 239 CrPC. The parameters which govern
the exercise of this jurisdiction have found expression in several
decisions of this Court. It is a settled principle of law that at the
stage of considering an application for discharge the court must
proceed on the assumption that the material which has been brought
on the record by the prosecution is true and evaluate the material
in order to determine whether the facts emerging from the material,
taken on its face value, disclose the existence of the ingredients
necessary to constitute the offence. In State of T.N. v. N. Suresh
Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on
the subject, this Court held:
‘29. … At this stage, probative value of the materials has
to be gone into and the court is not expected to go deep into the
matter and hold that the materials would not warrant a conviction.
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In our opinion, what needs to be considered is whether there is a
ground for presuming that the offence has been committed and
not whether a ground for convicting the accused has been made
out. To put it differently, if the court thinks that the accused might
have committed the offence on the basis of the materials on record
on its probative value, it can frame the charge; though for
conviction, the court has to come to the conclusion that the accused
has committed the offence. The law does not permit a mini trial at
this stage.”
13. The relevant part of the impugned order passed by the High
Court is reproduced below:-
“In the statement of Suresh Thapa dated 11.12.2006, he says he
had attended party at the bungalow. In the statement of Collector
Singh Thakur recorded on 9.12.2007, he refers tearing of papers
by accused no.2 at 7 O’ clock on 13.5.2006. Even this statement
primarily would not activate to nail the accused-applicants as the
incident of elimination/murder has taken place late in the night.
Mr. Suresh Thapa, in his statement on 14.5.2006, refers that in
the late night he was sitting of a platform at site, at such time a
car came to drop deceased and thereafter the deceased went
with his gardener Hari to his house. In further statement dated
28.6.2006, he refers of a silver colour Tata India Car coming to
the area of society and a person from the car called the deceased
loudly, he was tall with long hair. The deceased came and had
chat with the
said person who later accompanied the deceased to
bungalow. In third statement dated 11.12.2006, Suresh Thapa
changed his earlier version and stated that a silver colour car
came to the gate of the society and driver honked, the deceased
came out of his bungalow, he opened the door, the deceased closed
the door and he then went towards bungalow no.5 and while
returning, the car was standing near his bungalow, the driver went
ahead to the deceased, however they had no communication. Then
he went ahead and called “Captain Captain”, they had chat. The
person accompanied the deceased and 2 – 3 person were sitting
in the car. In the supplementary statement of Ramesh Dhakol –
another security, dated 1.1.2007, he refers of vehicle of accused
no.2 coming back at around 2 to 2.30 a.m. in the night and she
went to her bungalow. He says, his earlier statement was
CAPTAIN MANJIT SINGH VIRDI (RETD.) v. HUSSAIN
MOHAMMED SHATTAF & ORS. [RAJESH BINDAL, J.]
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incorrect. Dr. Ajitsingh in his statement dated 31.12.2006 refers
to his visit to the deceased and also with the deceased to the
house of accused nos. 1 and 2 in April, 2006. He saw the deceased
and accused no.2 on a swing while accused no. 1 was nearby.
This he noticed on 13.5.2006. The statement of Sajida Begum –
wife of Zarnish (Mohd. Asgar) does not implicate the accused-
applicants. Brother of the deceased Mr. Manjitsingh refers to a
communication he had with accused no.1 in past, wherein accused
no.1 allegedly conveyed him the deceased wanted to purchase
everything, if time permits he will also purchase his wife. This
communication was on telephone”.
14. A perusal of the impugned order passed by the High Court
shows that some of the material collected by the Investigating Agency
filed alongwith chargesheet has been referred to in a sketchy manner.
The statements of Suresh Sherbahadur Thapa, Collector Thakur Singh,
Ramesh Dhakol, Manjit Singh, Dr. Ajit Singh and Sajida Begum have
been referred to. However, from a perusal of the record, it is evident
that their statements have not be noticed either in their entirety or only
part of the statements recorded on a particular day has been noticed and
the statements recorded either before or after, have not been referred
to. Besides that, the Investigating Agency had recorded the statements
of Hiraman Dyaneshwar Chaudhari, Ramesh Murlidhar, Mohan Vs.,
Ashok Gunaji
Thosar, Mehboob Dastagi Sheikh, and Rakma Shivram
Waghmare, which have not been referred to and considered by the High
Court while discharging Respondent Nos. 1 and 2. The fact cannot lost
sight of that it was a case of blind murder. The circumstances only could
have nailed the accused through the material collected by the Investigating
Agency.
15. Psychological Evaluation including Psychological Profiling,
Polygraph Testing and BEOS of Respondent No. 1 was conducted.
Besides this test was also conducted of other four persons who were
close aides of respondent no.1, namely, Ahok Gajraj Chaudhary, Mehboob
Dastagir Sheikh, Baliram Chidhu Khade and Mohan Vijayamma
Shridharan.
16. In the report of the test conducted on Respondent No.1, the
opinion furnished by the Directorate of Forensic Sciences Laboratory,
Home Department, Maharashtra, shows the involvement of Respondent
No.1 in the murder of Captain Manmohan Singh. His psychological
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profiling also pointed out towards him being an antisocial personality
with tendency to go against the social norms. Relevant part of the report
is extracted below:-
“Psychological Evaluation of the subject Mohammed Shattaf
clearly indicates his involvement in the murder of Capt. Manmohan
Singh as indicated by Deception on the questions of Polygraph
and by Experiential Knowledge present on the significant probes
on BEOS. This finding was corroborated by the finding that the
subject has Antisocial Personality Traits and a tendency to portray
himself in a socially desirable way. Narcoanalysis could not be
conducted on the subject he refused to give written consent for
the procedure”.
(emphasis supplied)
17. Besides this, opinion regarding four other persons shows that
there was deceit in responding to question about knowledge of killing of
deceased. Relevant part of the report is extracted below:-
“Psychological Evaluation of the subjects Ashok Gajraj Chaudhary
and Mehboob Dastagi Sheikh included Psychological Profiling and
Polygraph Examination in the case of the murder of Capt.
Manmohan Singh. With regard to Ashok Gajraj Chaudary, even
though he denied having any knowledge about the murder, yet his
Polygraph examination revealed about the murder, yet his
Polygraph examination revealed his attempts to deceive on
questions related to him hiding information related to the death of
Capt. Singh him being asked by somebody to hide information
about this murder,
and him knowing who has killed the victim. In
relation to Mehboob Dastagi Sheikh, even though he denied having
witnessed or helped in the murder of Capt. Manmohan Singh, or
having any knowledge about the same, yet his Polygraph
Examination reveals ‘Deception’ on the question related to him
knowing who has murdered Capt. Manmohan Singh”.
(emphasis supplied)
18. The High Court vide impugned order had summed up the entire
evidence in two paras without even referring to the Psychological
Evaluation including Psychological Profiling, Polygraph Testing and Brain
Electrical Oscillations Signature Profiling (BEOS) tests of the accused
CAPTAIN MANJIT SINGH VIRDI (RETD.) v. HUSSAIN
MOHAMMED SHATTAF & ORS. [RAJESH BINDAL, J.]
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and the other aides of respondent no.1 and ordered discharge of
Respondent Nos.1 and 2.
19. Though Psychological Evaluation test report only may not be
sufficient to convict an accused but certainly a material piece of evidence.
Despite this material on record, the High Court could not have opined
that the case was not made out even for framing of charge, for which
only prima facie case is to be seen.
20. If the facts of the case are examined in the light of law laid
down by this Court on the subject, it is evident that the High Court has
not even referred to the evidence collected by Investigating Agency
produced alongwith chargesheet in its entirety. Rather there is selective
reference to the statements of some of the persons recorded during
investigation. It shows that there was total non-application of mind. The
High Court had exercised the jurisdiction in a manner which is not vested
in it to scuttle the trial of a heinous crime.
21. For the reasons mentioned above, the appeal is allowed and
the impugned order of the High Court is set aside.
Ankit Gyan
Appeal allowed.