Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 291 PW 2023 State Vs Makesh and ors.
CNR-MHMM18-001303-2023
ORDER BELOW DISCHARGE APPLICATION (EXH.7)
1. Perused record. Heard Ld. Advocate for the accused and Ld. A.P.P.
2. This is an application filed under Section 239 of Code of Criminal
Procedure, for discharge mainly on the following grounds -
i. Applicants are falsely implicated. They had never treated informant with
any form of cruelty.
ii. The allegations are very short and vague, no offence made out.
iii. There is variation in the evidence produced.
iv. The applicant quoted various incidences and produced certain documents
stating that applicants falsely implicated.
3. Say of Ld. A.P.P. called. Ld. A.P.P. objected to application and
stated that there is enough material to frame charge. All the offences
made out. The allegations are serious, therefore, application shall be
rejected.
4. It is the case of the prosecution that informant got married with
applicant/Accused No.1, Mr. Makesh, on 26.03.2020, at Dharavi,
Mumbai. The marriage expenses were born by her father and several
articles were also handed over to applicants/accused. After some days of
cohabitation applicant/accused Mr. Makesh, started demanding money
and quarreling with informant. The Accused Nos.3 and 4, also started
demanding money and were quarreling with informant. On 10.11.2020,
applicant/accused Mr. Makesh, picked up quarrel with informant and
assaulted him. Other accused were also present there, they abused
informant and drove her out of the matrimonial house. Since then she
started residing with her father. In the mean time some quarrel also took
place on 26.12.2021, and then informant lodged report on 17.01.2022.
5. In support of these allegations the statements of various witnesses
were recorded by Investigating Officer. Those are admittedly relatives of
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C. C. No. 291 PW 2023 State Vs Makesh and ors.
CNR-MHMM18-001303-2023
informant. Except those statements and some medical record and
marriage photograph, there is no evidence produced in support of
allegations.
6. The law in respect of discharge of accused persons is well settled.
The prosecution case, if accepted by accused as it is and no conviction is
warranted accused can be discharged. If this principle is applied to
present matter the contents of the First Information Report and material
collected in support of it reflects that the main allegations are only against
accused Mr. Makesh (husband), Mr. Ganpati (father-in-law) and Mrs.
Mallika (mother-in-law). There are absolutely no specific allegations
against Miss. Mahalaxmi and Mr. Anwarda, which will constitute any
offence. Some general, stray and vague statements were made by the
informant and witnesses, against them, which even if accepted by them
no conviction is warranted. The charge sheet reflects that they were
implicated only on account of the fact that they are in-laws of the
informant.
7. The allegations against remaining accused persons i.e. Mr. Makesh
(husband), Mr. Ganpati (father-in-law) and Mrs. Mallika (mother-in-law),
are also of some what general nature and little vague. But they are enough
to made out prima facie case to frame charge against them. To show that
those statements/allegations are vague. Ld. Advocate for the applicants
produced and relied on certain documents. But those documents can not
be considered at this stage of framing of charge. Therefore, these accused
persons can not be discharged.
8. Supreme Court, in the case of Vikarmjit Kakati Vs State of Asam (2022
SCC OnLine 967), laid down certain principles, as -
10. Before we proceed to examine the matter on merits any further, it
will be apposite to take note of the legal principles applicable seeking
discharge, for which we may refer to a judgment of this Court in P.
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C. C. No. 291 PW 2023 State Vs Makesh and ors.
CNR-MHMM18-001303-2023
Vijayan v. State of Kerala & Another, which has been further reiterated
by this Court in the recent judgment in M.E. Shivalingamurthy v.
Central Bureau of Investigation, Bengaluru and discerned the following
principles:
“17.1. If two views are possible and one of them gives rise to suspicion
only as distinguished from grave suspicion, the trial Judge would be
empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the
instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding. Evidence
would consist of the statements recorded by the police or the documents
produced before the Court.
17.4. 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 offence, then, there will be no
sufficient ground for proceeding with the trial”.
17.5. It is open to the accused to explain away the materials giving rise
to the grave suspicion.
17.6. The court has to consider the broad probabilities, the total effect of
the evidence and the documents produced before the court, any basic
infirmities appearing in the case and so on. This, however, would not
entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the
material on record cannot be gone into, and the material brought on
record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong
suspicion which can form the basis for drawing up a charge and
refusing to discharge the accused.”
9. If we applied these principles to the present matter, in view of
observations made above, it is clear that as no conviction is warranted
against applicants/Accused Nos. 2 and 4, they needs to be discharged as
the probative value of evidence produced against them is almost nil.
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C. C. No. 291 PW 2023 State Vs Makesh and ors.
CNR-MHMM18-001303-2023
However, remaining accused persons can not be discharged. Therefore,
following order -
ORDER
a. Application is partly allowed.
b. Accused No.2, Miss. Mahalaxmi Ganpati Tewar and Accused
No.4, Mr. Anwarda Selvan Ganpati Tewar, are discharged.
c. Application is rejected in respect of remaining accused persons.
Note be taken below Exh.1.
MUMBAI (KOMALSING RAJPUT)
DATE – 19.10.2024 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
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