Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No.1903/PW/2017
ORDER BELOW EXH.-3
Accused Tehmul Burjor Sethna has filed the present
application under section 239 of the Code of Criminal Procedure.
According to accused/applicant he is Chartered Accountant, about 62
years old and resident of Ahmedabad, Gujarat. He is facing proceeding
under Domestic Violence Act and other criminal proceeding in Bandra
court as well as court at Gujarat state, which have been initiated by his
wife Kamalrukh Sethna. It is contended that, he has been arranged, as an
accused in the additional chargesheet filed by the Vakola police station on
the basis of confessional statements of other accused. It is contended that,
the F.I.R., statement of complainant and other witnesses do not reveal the
name of present accused/applicant as having done any act. He is innocent.
The chargesheet does not disclose prima-facie case against him.
2. The confessional statement of other co-accused are hit by
section 25 of the Indian Evidence Act. The said statements recorded
during the investigation by police, therefore, they are hit by section 162 of
the Code of Criminal Procedure. It is further contended that, no case
whatever against him in the present chargesheet. Therefore, he is entitled
to discharge from the case. The accused/applicant relied on the case of
Union of India V/s. Prafulla Kumar Samal reported in AIR 1978 Supreme
Court, wherein it has been held that, if there is no prima-facie case then
accused shall be discharged and if two view of the case from material on
record, one favoring the accused and other favoring the prosecution, the
one favoring the accused chosen and accused be discharged.
3. Ld. APP Shri Joshi resisted the application and contended
that, after detail investigation Investigating Officer has filed the
chargesheet against accused. During investigation police recorded
statement of Priya Chavan, who stated that, she has been appointed by
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present accused/applicant for taking watch on the informant, which is an
offence under section 354 D of I.P.C. It is contended that, there is a
technical, as well as electronic evidence on record, such as e-mails, call
details between present accused and accused Priya Chavan. There is also
evidence regarding money transaction between them in respect of said
work. Therefore, there is sufficient material on record for framing the
charge against accused. Hence, application is liable to be rejected.
4. Heard Ld. Advocate Shri P. D. Sawardekar for
accused/applicant and Ld. APP Shri Prasad Joshi for the state. Perused
the record. The record shows that, on the information given by informant
Smt. Chetana Nilkhant Shukl, Vakola police have registered C. R.
No.144/2017 for the offence punishable under section 354 D r/w 34 of
Indian Penal Code. After investigation Vakola police have filed the
chargesheet, initially against accused Sagar Metkari, Rrishikant Gole and
Priya Chavan. Thereafter, on 02/04/2019 Vakola police have filed the
supplementary chargesheet in the said offence against the present
accused/applicant. Thus, as per the chargesheet accused No.1, 2 and 3 at
the instance of accused/applicant taking watch on the informant, which is
offence punishable under section 354 D r/w 34 of Indian Penal Code.
5. Ld. Advocate Shri Sawardekar submits that, the
supplementary chargesheet has been filed by the police only on the basis
of confessional statements of co-accused, which are hit by section 25 of
Indian evidence Act, as well as, as per the provision of section 162 of the
Code of Criminal Procedure. Entire chargesheet does not disclose the role
of accused in the present offence and he has been falsely implicated in the
false offence at the instance of his wife Kamalrukh Sethna. No prima-facie
case to proceed against accused/applicant is made out. Therefore, accused
is entitled to be discharged as per the provision of section 239 of the Code
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of Criminal Procedure. Lastly, he prayed that application be allowed and
accused/applicant be discharged.
6. Per contra, Ld. APP Shri Joshi submits that, the statements of
co-accused Priya Chavan shows the nexus of present accused with the
offence. The chargesheet also shows that, at the instance of present
accused/applicant accused No.1, 2 and 3 have taken watch of the
informant. Therefore, there is prima-facie strong case against accused
hence, application is liable to be rejected.
7. Section 239 of the Code of Criminal Procedure provides that,
“if a magistrate, after reviewing the police report and the documents sent
with it and hearing the prosecution and accused properly, reaches the
conclusion that the charge against the accused are to be baseless and
groundless, he may discharge the accused after recording the reasons for
doing so.”
8. By keeping in my mind the above provision I would like to
state here that, the informant has lodged the report on 24/03/2017 to
Vakola police station alleging that accused No.1, 2 and 3 follows her,
despite her clear disinterest. After investigation Vakola police have initially
filed the chargesheet against three accused persons. Thereafter, during
investigation Investigating Officer revealed that, the act of stalking by
accused No. 1, 2 and 3 was at the instance of present accused and said
fact has been revealed to him during investigation from co-accused Priya
Chavan. It is the contention of prosecution that, at the instance of present
accused/applicant accused No.1, 2 and 3 are appointed as a detective for
taking watch on the Consultancy of the informant to find out whether wife
of accused/applicant has practicing in the said Consultancy. The
Investigating Officer also recorded the statements of co-accused, as well
as supplementary statement of informant.
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9. In supplementary statement of informant dated 11/12/2018
informant specifically stated that, she came across from the statement of
accused Priya Chavan that, Priya Chavan and other accused have been
appointed, as a detective for taking watch on her Consultancy. Therefore,
there is sufficient material on record which shows that, prima-facie
involvement of accused in the offence. Further, whether statement of co-
accused are hit by the provision of section 25 of Indian Evidence Act and
section 162 of Code of Criminal Procedure is matter of merit, which will
be decided on the evidence adduced by the both parties. The statement of
informant dated 11/12/2018 prima-facie shows the involvement of the
accused in the offence therefore, it can not be said that, the charge against
accused is groundless. Further, no view favoring to accused is also reflect
from the entire chargesheet, therefore, the ratio laid down in above supra
case is useful to the accused/applicant. Therefore, I do not find any
substance in the application hence, I proceed to pass following order.
ORDER
Application is rejected.
Date:30/09/2023.
SRD.
Sd/-
(A. B. Jadhav)
Metropolitan Magistrate,
71st Court, Bandra, Mumbai.
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