Ghattamaneni Srinivasa Rao S/O ... vs The State C.B.I, S.Cmb,Mumbai
2016 Latest Caselaw 935 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION
              CRIMINAL REVISION APPLICATION NO.335 OF 2015




                                                                                  
    Ghattamaneni Srinivasa Rao S/o. 




                                                          
    Murali Krishna,
    Inspector of Police C/o Mutkur Police 
    Station, Muthukur, Nellore District, 
    Andhra Pradesh-524344.                                       ...Applicant




                                                         
                    Versus

    1.The State C.B.I. S.Cm.B., Mumbai.
    2. The State of Maharashtra.                     ...Respondents




                                             
                                        .....
    Mr. Girish Kulkarni with Mr. Maitreya Shukla and Mr. Karan 
                               
    Kadam i/b. Mr. S.S. Pradhan for the Applicant.
    Mr. S.K. Shinde, Additional P.P. with Shri Y.M. Nakhwa, 
    Additional P.P. for C.B.I.
                              
    Mr. J.H. Ramugade, APP for the Respondent -State.

                                 CORAM : SMT. ANUJA PRABHUDESSAI, J. 
      


                                 ORDER RESERVED ON : 17th OCTOBER, 2015.
   



                                 ORDER PRONOUNCED ON: 28th MARCH, 2016.

    JUDGMENT:

By this application filed under section 397 of the Criminal

Procedure Code, the Applicant, who is an accused No.23 in the

Sessions Case No.312 of 2014 has challenged the order dated

11.6.2015 whereby the learned Special Judge has dismissed the

discharge application at Exh.542 filed by him, interalia holding that

the material on record is sufficient to give rise to grave suspicion

against the Applicant.

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2. Heard Mr. Kularni, the learned counsel for the Applicant.

He has submitted that the prosecution has sought to implicate the

Applicant herein mainly on the basis of statement of PW 87 Jaswinder

Singh S/o. Gurudas Singh vis-a-vis the entry in the gate register and

the statements of Gurudayalsingh PW-106. The learned counsel for the

Applicant has submitted that PW-87 and PW-106 and the other

passengers of the luxury bus had not identified the Applicant herein

and that his identity was also not established by holding ID parade. He

has further submitted that the prosecution has relied upon CDR

records in respect of phone No.984828177. However, there is no

material on record to indicate that the Applicant was in possession of

the said phone at the relevant time. He therefore, contends that said

CDR records do not give rise to a grave suspicion to connect the

Applicant with the crime.

3. The learned counsel for the Applicant has further submitted

that the records prima facie reveal that the Applicant was on duty at

Singarayakonda Police station on 23.11.2005 till about 5.00 p.m. The

said police station is at a distance of about 370 km from Hyderabad

and as such the Applicant could not be the part of the escort on

23.11.2005 at about 11.00 p.m. The learned counsel for the Applicant

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has submitted that the Applicant /accused cannot be ordered to face

trial on mere suspicion without there being any prima facie material to

show his involvement.

4. Mr. Shinde, the learned Public Prosecutor for C.B.I. has

submitted that amongst other sections the Applicant is also charged for

committing an offence punishable under section 120 B of the IPC. The

learned P.P. has submitted that the material on record prima facie

reveals that the Applicant was a sub inspector at Singarayakonda Police

station in Prakashm District of Andhra Pradesh had visited the C.R.P.F.

Center in vehicle No.AP10 J 7019 and had met other accused S.P.

Rajkumar Pandian, Parmar and Dabi, police officers from State of

Gujarat and Rajasthan who were involved in eliminating Sohrabuddin

Sheikh and his wife Kausarbi and Tulsiram Prajapati. The learned

Public Prosecutor has further submitted that the statement of

Jaswinder Singh vis-a-vis the extract of gate register prima facie

indicates that on 21.11.2005 the Applicant had visited CRPF center

and had met the co-accused S. P. Raj Kumar Pandian, Parmar and Dabi.

He has further submitted that statement of PW-106 Gurudayalsingh

also prima facie reveals that officers from ATS Gujarat had intercepted

a bus at Zahirabad and taken two men and a woman in their custody.

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The statement of said Gurudayalsingh also prima facie reveals that one

police officer from Hyderabad had accompanied them in sumo.

Statement of this witness also prima facie reveals that the said person

was constantly talking on the mobile phone.

5. The learned Public Prosecutor for CBI has further submitted

that material and CDRs prima facie reveal that the location of mobile

phone No.9848288177 was in Maharashtra and Gujarat. He has

further submitted that the statements of PW-19 and PW-23 prima facie

reveal that said cell phone was being used by the Applicant.

Furthermore, according to the statement of PW3 Tejus Patel, a Nodal

Officer of Vodafone Service Provider, the Applicant had received call

from co-accused S.P. Raj Kumar, from mobile No.9825049395 and the

Applicant was also constantly in touch with co-accused Dabi on mobile

No.9825006898 on 25th and 26th November, 2005. He has further

submitted that the duty register maintained at Singarayakonda Police

station reveals that the Applicant was on leave from 23.11.2005 to

29.11.2005. The learned counsel for the CBI submitted that the

aforesaid circumstances prima facie raises a grave suspicion about the

involvement of the Applicant in the aforesaid crime.

6. I have perused the records and considered the submissions

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advanced by the learned counsel for the respective parties. At the

outset it may be mentioned that at the stage of framing of charge the

Court is not required to scrutinise the material on record minutely but

the Court is only required to see whether the material placed before

the Court prima facie raises a grave suspicion against the accused

which leads him to form a presumptive opinion as to the existence of

the factual ingredients constituting the offence alleged. In Sajjan

Kumar Vs. CBI (2010) 9 SCC 368, the Apex Court has reiterated the

principles as under:

"On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:-

(i) The Judge while considering the question of framing the

charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has

been made out. The test to determine prima facie case would depend upon the facts of each case.

ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of

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the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at

this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting

a trial.

iv) If on the basis of the material on record, the Court could form

an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has

committed the offence.

v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a

charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of

offence by the accused was possible.

vi) At the stage of sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value

discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the

prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this

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stage, he is not to see whether the trial will end in conviction or acquittal."

7. In the instant case, the case of the prosecution is that some

police officers from Gujarat and Rajasthan had entered into a criminal

conspiracy to nab and kill one Soharabuddin. It is alleged that during

the intervening night of 22.11.2005 and 23.11.2005 said Sohrabuddin

was taken to Gujarat. In pursuance of the conspiracy some police

officers from Gujarat went to Hyderabad to nab said Sohrabuddin.

Said police officers from Gujarat with the aid of the present Applicant

and others intercepted a luxury bus at Zahirabad and forced

Sohrabuddin, his wife Kausarbi and one Tulsiram Prajapati to alight.

They were taken into custody and subsequently Sohrabuddin was

eliminated in a fake encounter. Kausarbi was also eliminated and

subsequently about a year later Tulsiram Prajapati was also eliminated

in a fake encounter at Banaskhantha District. The Applicant herein is

alleged to be one of the conspirators. The charge against the Applicant

is mainly based on the statement of PW 87- Jaswinder Singh, who at

the relevant time was posted at CRPF Group center, Hyderabad and

PW 106 Driver, Anti Terrorist Squad, Ahmedabad. The statement of

PW87-Jaswinder Singh reveals that in November, 2005 he was on the

duty of guard commander at Gate No.3. On 21.11.2005 he and two

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constables B.K. Reddy and Niranjan Kumar were on duty at Gate No.3.

He has stated that entry made in the gate register discloses that the

Applicant herein had visited CRPF guest house on 21.11.2005 by

vehicle No. AP 10 J-7019. The said gate register also prima facie

reveals that other co-accused i.e. police officers S.P. Rajkumar Pandian

and Dabi from Gujarat and Rajasthan and another police constable

Parmar had also visited said guest house on the same day. The details

of the vehicles are also recorded in the said gate register.

8. Statement of Gurudayalsingh Chaudhari (PW 106) prima

facie indicates that from August 2005 to 2006 he was working in Anti

Te-rrorist Squad, Ahmedabad as a Driver. On 20.11.2005 he had

accompanied P.I., Dabi and others to Hyderabad. They halted at CISF

campus at night. He has stated that about on the third day as per the

instructions of P.I., Dabi they had changed the number plate of Qualis

and lateron in the evening they left Hyderabad. He has narrated the

manner in which they had followed one luxury bus. He has stated that

one Qualis and two Sumo vehicles including the Sumo in which he and

three other officers were traveling had followed the luxury bus. He has

stated that thereafter Qualis vehicle in which R. Pandian was travelling

had overtaken the luxury bus and stopped the bus. The Tata Sumo, in

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which this witness was travelled was stopped at some distance.

Sometime thereafter the Qualis in which Pandian and Dabi were

traveling stopped near the Sumo vehicle. One burkha clad lady and a

gunman Santram Sharma alighted from the Qualis and were made to

sit in the Sumo vehicle and they had proceeded towards Bharuch. He

has stated that said lady was crying throughout the journey and that

the officers who had accompanied in Sumo from Hyderabad were

telling the lady not to cry. His statement reveals that one of the said

officers from Hyderabad had a mobile phone and that he had made 3 /

4 phone calls from the said mobile phone. His statement further

reveals that said officers were speaking mostly in English and

Karnataki language used in Hyderabad. He has stated that on the way

to Bharuch said gunman Santram and the burkha clad lady were

transferred into Qualis vehicle while he alongwith officers from

Hyderabad proceeded to ATS Ahmedabad.

9. The statement of PW19 prima facie reveals that sometime

in February-2005 the Applicant, who was working as Sub Inspector

(SI) in Singarayakonda Police station had requested him to get a sim

card in CUG plan and that he had obtained phone no.9848288177 in

his customer id on the address of his transport company. He has stated

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that though the application was addressed to the Executive, Credit

Control of Idea Cellular, application was made on the letter head of

M/s. V.N. Transport and that in the said application he had mentioned

user name as Srinivas Rao G. He has stated that though he had

obtained said sim card at the request of the Applicant and though the

payment bills were received in his transport office, the amount was

paid by the Applicant.

10.

Statement of PW23 Golla Venkata Suman Babu, the dealer

of Idea Cellular sim in Singarayakonda, reveals that on 8.2.2005 PW

19 had visited his shop and requested him to issue a new sim card

under the CUG plan. Since PW 19 had instructed him to write the user

name as Srinivas Rao G., he had obtained his personal details and

filled the form as per the instructions of PW 19. He has stated that

PW 19 had given a letter head wherein he has given his address proof.

He has stated that he had not obtained photograph of PW19 since he

already obtained Idea cellular sim in CUG plan on 8.2.2005. He has

further stated that he has forwarded the said application alongwith

necessary documents to the original office of Idea Cellular company.

The statements of PW-19 and PW23 therefore, prima facie reveals that

the cell phone no.9848288177 was obtained by the Applicant herein in

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the name of PW-19.

11. The statement of PW 3 Tejus Patel, Nodal Officer of

Ahmadabad reveals that the Applicant had received calls from S.P.

Rajkumar (accused No.2) from his cell phone no.9825049395. The

statement of this witness also prima facie reveals that P.I. Dabi was in

constant touch with the Applicant on 25-26.11.2005.

12. The statement of PW-20 Arun Bhahavtal, D.J.M.( Local,

regulator and nodal officer ) for Idea Cellular Ltd. prima facie reveals

that cell phone No.9848288177 used by the Applicant herein was in

roaming mode in Maharashtra and Gujarat during the relevant period.

13. The duty register maintained at Sigaraikonda police station

shows that from 23.11.2005 to 29.11.2005 the Applicant was on

leave. It may be mentioned that though PW-86 and PW-107 not

identified the Applicant by name or in the ID parade, the material on

record prima facie reveals that officers from Hyderabad had

accompanied them. Statement of PW-106 reveals that one of the

officers had made calls from his mobile phone. The material on record

reveals that the mobile no.9848288177, which was used by the

Applicant was in roaming mode in Maharashtra and Gujarat during the

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relevant period. The Applicant was also on leave during the said

period. All these facts coupled with the fact that the Applicant was on

leave from 23.11.2005 to 29.11.2005 prima facie sufficient to raise

grave suspicion that the Applicant was also involved in the said

conspiracy.

14. Under the circumstances, the impugned order does not

suffer from illegality or infirmity. Hence, the application is dismissed.

                               
                                             (ANUJA PRABHUDESSAI, J.)
                              
      
   






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