Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 216 PW 2021 State Vs Allen and anr.
CNR-MHMM18-004002-2021
ORDER BELOW EXH.6
1. Perused record. Heard Ld. Advocate for the applicant. Heard Ld.
A.P.P.
2. This is an application filed under Section 239 of Code of Criminal
Procedure, for discharge by Accused No.2, Mrs. Rozita Paul Fernandes,
hereinafter referred as applicant, who is advocate by profession.
3. The allegations against applicant in the charge sheet can be
summarized as follows -
On 10.09.2020, first informant Mr. Vincent Ilias Albuquerque,
approached Bandra Police Station, Mumbai, and lodged report stating that
the original owners of the property C/587, Plot No.176 and 177, having
current plot No.30, Saint Andrews Road, Bandra West, Mumbai, are Mr.
Urban Rony D’Souza, etc. These original owners in the year 1995,
entered into an agreement for it’s development with Mr. Allen D’Silva,
i.e. present Accused No.1. In the year 2004, two persons named as Mr.
Joel and Mr. Babu Thomas, approached informant for purchase of the
said land stating that Mr. Allen D’Silva, failed to honour the terms of
development agreement and the said agreement was thus accordingly
cancelled on 25.08.2004. On 08.09.2004, Deed of Cancellation was
executed, an amount of Rs.31 lacs was paid to Mr. Allen D’Silva.
However, the said payment was conditioned by certain compliance, to be
done by Mr. Allen D’Souza.
The informant approached the parent society controlling the
development for it’s no objection certificate. However, society refused
such certificate as, as per their terms the property is to be transferred only
for Catholics. Since then informant came in possession of the said
property.
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C. C. No. 216 PW 2021 State Vs Allen and anr.
CNR-MHMM18-004002-2021
On 08.09.2020, at about 11.00 O’Clock in the morning, when
security guard of the property Mr. Rhishimuni Jangali Morya, was
preparing his food, two unknown persons entered into the property and
forcefully obtained his mobile phone. Then other two persons came
carrying iron rod and country made revolver and threatened him to move
out of property unless they will kill him. He left the property and went to
Mrs. Naznin and requested her to call the informant, but informant was
not contacted.
The four persons broken the lock of the gate and entered into the
bunglow. They asked security guard to come inside. One of those persons
a woman i.e. present applicant/Accused No.2, offered him Rs.10,000/-
and asked him to leave the premises. He demanded his mobile phone
back however, said woman asked him not to contact informant unless
they will kill and bury him. They forcefully beaten security guard there.
About fifteen persons gathered there.
In the evening at about 05.00 O’Clock, informant came to know
about the incidence. Then at 07.30 hrs., informant approached police and
with the help of police removed the people forcefully entered into the
premises.
4. On the basis of this report the crime was registered at C.R.No.579
of 2020, with Bandra Police Station, Mumbai, for offences of rioting,
wrongful restrain, trespass, threatening, etc. The investigation was
completed and charge sheet has been filed.
5. Both the accused appeared and furnished bail. Then Accused No.2,
Mrs. Rozita Paul Fernandes, who is advocate by profession, filed the
present application for her discharge from the matter, mainly on the
grounds she was engaged by Accused No.1, and had been to the disputed
property in her professional capacity as an advocate, to explain the legal
implications to any person or authority. She has no personal interest and
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C. C. No. 216 PW 2021 State Vs Allen and anr.
CNR-MHMM18-004002-2021
just performing her professional duties. She is falsely implicated without
any or indirect proximity. In addition to it she pleaded in this application
various other merits of the matter and facts occurred leading upto the
filing of the present crime. The summary of those contentions is that the
matter is of civil nature and Accused No.1, is entitled to the possession of
the property.
6. Against it Ld. A.P.P., contended that the act alleged can not be said
to be performed in professional capacity as an advocate. The clear case
made out from the contents of the charge sheet. There found reasonable
connection of the applicant with the alleged act, which constitutes threat,
trespass, etc. Therefore, application shall be rejected.
7. The submissions of both the parties are in tune with their respective
contentions. Ld. Advocate for the applicant relied on certain judgments of
Madras High Court and another one. He also filed on record, his notes of
arguments, Exh.13.
8. The law in respect of discharge of accused is now settled. From the
various judgments, in case of Vikarmjit Kakati Vs State of Asam (2022 SCC
OnLine 967), recently Supreme Court, carved out basic principles of law
pertaining to discharge of accused, as follows -
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.
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.
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C. C. No. 216 PW 2021 State Vs Allen and anr.
CNR-MHMM18-004002-2021
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. The summary of the above principles is that if the whole charge
sheet, constituting material to prosecute, is accepted by accused as it is
and no conviction is warranted, accused can be discharged. Even if, from
the material produced a reasonable or strong suspicion made out, accused
can not be discharged.
10. If we go to the charge sheet, the name of the applicant/accused is
mentioned in the First Information Report and specific allegations of
threat and trespass, etc. are made against her. The statement of the main
witness Mr. Rhishimuni, a security guard posted by informant at the
disputed site also suggests the same thing. It is specifically alleged that
persons accompanying accused were carrying weapons, they detained
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security guard and threatened him of death, so as to cause him alarm. In
the allegations a clear role is attributed to accused/applicant.
11. The accused admitted her presence in this application as well. The
only or main ground assigned for discharge pleaded is that she had been
to the spot in professional capacity of advocate to assist his client. But as
stated in the preceding paragraph the active role is attributed to her in the
acts alleged. The conduct alleged can not be said to be an act performed
in professional capacity as an advocate. Therefore, it can not be said to be
a valid ground for discharge of the accused.
12. Certain other grounds based on main merits of the matter also
pleaded. But those can not be considered at this stage. The power of
discharge is restricted by above principles laid down in case of Vikarmjit
Kakati Vs State of Asam (2022 SCC OnLine 967). If those applied to the present
mater, it is clear that no case of discharge made out. Therefore, following
order -
ORDER
Application, Exh.6, is rejected.
MUMBAI (KOMALSING RAJPUT)
DATE – 02.09.2024 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
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