Interim Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 961 PW 2018 State Vs Shafikur
CNR No.MHMM18-007520-2018
ORDER BELOW EXH.2
1. Perused record. Heard Ld. Advocate for the applicant/accused.
Heard Ld. A.P.P.
2. The present application is filed under Section 239 of Code of
Criminal Procedure for discharge. The main grounds assigned are, that
accused is innocent. Allegations are false. The information received is in
variance with main record. There is suppression of material evidence, etc.
3. Ld. A.P.P. objected to it stating that there is enough material to
proceed further. No case of discharge made out.
4. The summary of the application is that, the whole charge sheet is
false and not as per the incidence occurred or not as per the material on
the basis of which charge sheet should be filed, the material facts are
suppressed. Thus, the ground assigned is based on the scrutiny of the
veracity of the facts, to be scrutinized during trial.
5. The law is now well settled and all the principles are laid down by
Supreme Court, in case of Vikarmjit Kakati Vs State of Asam (2022 SCC
OnLine 967). Those principles are 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.
-- 1 of 2 --
C. C. No. 961 PW 2018 State Vs Shafikur
CNR No.MHMM18-007520-2018
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.”
6. If these principles applied, the application fails. The record reflects
that there is ample material to proceed further. None of the above
principles is applicable to case in hand. As such, application is not
sustainable. Hence, order -
ORDER
Application is rejected.
MUMBAI (KOMALSING RAJPUT)
DATE – 24.07.2023 M.M., 12TH COURT, BANDRA, MUMBAI
-- 2 of 2 --