Naeem @ Nammu Khan S/O Salim Khan vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 1017 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



Criminal Revision Application No. 87 of 2015



Applicant               :          Naeem @ Nammu Khan son of Salim Khan,

                                   aged about 30 years, Occ: business, resident

                                   of Ward No. 6, Baiyyar Road, Balaghat, MP

                                   versus

Respondent              :          The State of Maharashtra, through Police 

                                   Station Officer, P. S. Ram Nagar, Gondia

                                   ---------

Intervener : Vishal Muralidhar Gajbhiye, aged about

33 years, Occ: Labour, resident of Bara

Kholi, Gondia

Shri R. M. Daga, Advocate for applicant

Shri H. R. Dhumale, APP for respondent-State assisted by Ms Vaishali Chhabriya, Advocate for intervener

Coram : S. B. Shukre, J

Dated : 24th March 2017

Oral Judgment

1. Heard. Admit. There is no need to call for Record and

Proceedings. Heard finally by consent of learned ciounsel for the parties.

2. Challenge in this revision is to order dated 20.6.2015

whereby application for discharge of the applicant from the case which is

Sessions Trial No. 48 of 2013 arising out of Crime No. 88/2012

registered with Police Station, Ram Nagar, Gondia for the offences

punishable under Sections 147, 148, 302, 307, 149, 109, 120-B and

Section 212 of the Indian Penal Code and Section 3 (2) (v) of the SC &

ST (Prevention of Atrocities) Act read with Sections 2, 4, 25 and 27 of the

Arms Act has been rejected.

3. Shri R. M. Daga, learned counsel for the applicant submits

that except for allegation of giving shelter to one of the accused persons

and assisting them in concealing one of the weapons, there are no

allegations made against the revision applicant and such bald allegations

would not satisfy the ingredients of the offence punishable under Section

212 of the Indian Penal Code.

4. Learned Assistant Government Pleader who is assisted by

learned counsel for the complainant submits that since now the charge

has been framed, the present revision application has been rendered

infructuous. He also submits that at least for the charge for an offence

punishable under Section 212 IPC, there is sufficient prima facie material

available on record.

5. Sofar as the objection to the maintainability of the revision

application is concerned, I do not find there is any merit in the same for

the reason that right to seek discharge has been admittedly asserted by

the revision-applicant much before the charge was framed. The

application for discharge vide exhibit 189 was filed by the applicant on

20.3.2015 and it was rejected on 4.4.2015 and thereafter on the same day

the learned Sessions Judge framed the charge against all the accused

including the present applicant, thereby giving virtually no time to the

applicant to challenge the impugned order. But, later on, the applicant

did file the challenge by way of this revision application and, therefore,

the right which had been asserted by the applicant well before framing of

the charge and which was denied, is continuing.

6. On merits of the case, a bare perusal of the charge-sheet

would be enough to conclude that there is great substance in the

arguments of learned counsel for the applicant. The only allegation made

against the applicant is that he had given shelter to the accused persons

and assisted the accused persons in concealing the evidence of the

offences. Although learned counsel for the applicant has submitted that

the statements of witnesses are not very specific so far as this offence is

concerned, as rightly pointed out by learned Additional Public Prosecutor

assisted by learned counsel for the complainant that one of the witnesses

viz. Ansarali has categorically made a statement supporting such an

allegation. At the stage of discharge, the statements of witnesses are to be

considered as they are and while doing so, if it is found that they disclose

essential ingredients of any particular offence or offences, the Court will

have no option but to hold that there is prima facie material disclosing

commission of an offence or offences. Therefore, at this stage, it cannot

be said that even for prima facie disclosing the offence punishable under

Section 212 IPC, there is no material available on record. However, this is

not so in respect of other offences. Learned Additional Public Prosecutor

also could not show even a semblance of evidence as against this

applicant prima facie pointing out commission of other offences by him

Thus, what emerges from this discussion is that the prosecution case only

prima facie discloses commission of offence punishable under Section 212

IPC against the present applicant and not under any other provisions of

the Indian Penal Code. These material facts and circumstances available

on record, it appears, have not been considered by the learned Sessions

Judge.

7. It appears to me that the learned Sessions Judge was swayed

away by the order passed by the Division Bench of this Court in Writ

Petition No. 1005 of 2015 on 11.12.2014 which was affirmed by the

Hon'ble Supreme Court. This order directed only framing of the charge

and conclusion of the trial as expeditiously as possible and nothing more.

By this order no direction was given to the trial Court for framing charge

in a particular manner or for particular officences and all that was said

was to frame the charge and finish the trial as early as possible. Even the

learned single Judge of this Court in previous round of litigation being

Criminal Revision No. 49 of 2015 wherein similar challenge to the order

passed by the Sessions Judge refusing to discharge the applicant was

made, observed that there was non-application of mind and remitted the

matter back to the learned Sessions Judge with a direction to decide the

application filed by the applicant seeking discharge afresh with a reasoned

order, within three weeks by giving opportunity of hearing to both the

parties. However, the impugned order dated 20 th June 2015 appears to

be a repeat of the previous order. There is no reason stated as to why the

charge for all the offences was framed against the applicant. There is

also no reason given while rejecting his application for discharge. This

approach of the learned Sessions Judge would only prompt me to

consider the discharge appliation (exhibit 189) on its own merits lest

there be a third repeat of instances of non-application of mind and giving

no reasons while passing final order on the part of the learned Sessions

Judge. I have accordingly considered the merits of the case.

8. In the result, the impugned order is hereby quashed and set

aside. The discharge application vide exhibit 189 is partly allowed and

the applicant, except for an offence punishable under Section 212 of the

Indian Penal Code, is discharged of all the remaining offences in Sessions

Trial No. 48 of 2012. Revision application is partly allowed and disposed

of.

S. B. SHUKRE, J

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