ORDER
S.S. Nijjar, J.
1. This judgment will dispose of Criminal Writ Petition No. 1338 of 1997 and Criminal Application No. 3806 of 1997.
This is a petition under Section 482 of the Criminal Procedure Code with a prayer that this Court be pleased to set aside the order dated 5th December, 1997 passed by the learned Sessions Judge in the application for discharge being Application No. 987 of 1997 in Sessions Case No. 1221 of 1997.
2. Facts as set out in the petition are brief and to the point. It is stated that the petitioner is an Indian National and resides permanently at Dagdi Chawl, Byculla, Mumbai with his mother, wife and children. He is stated to be presently lodged in Thane Central Jail, Dist. Thana. He is further stated to be president of a Political Party known as Akhil Bhartiya Sena. This Political Party is stated to be recognised by the Election Commission of India. In the petition itself it is stated that the petitioner is branded as a gang leader of a gang known as 'Gawli Gang'. He has been accused of entering into conspiracy to commit the murder of one Natwarlal Desai who Was shot dead on 19th August, 1997 in the compound of Tulsiani Chambers at Cuffe Parade, Mumbai. Accordingly to the petition, the prosecution case, is that when Natwarlal Desai got down from his car on 19th August, 1997 near his office, two persons fired shots at him. Having been wounded by gun shot injuries, Natwarlal Desai, hereinafter referred to as 'the deceased', was removed to Bombay Hospital where he was declared to be dead. According to the petitioner, the prosecution case further seems to be that Gawli gang had demanded monies form the deceased and have threatened him on phone. It is also the case of the prosecution that the deceased had been to Dagdi chawl in August, 1997 once. After the incident FIR was recorded by one Namesh Chagganlal Shah and few statements were recorded. Some panchanamas were also prepared in respect of C.R. No. 382' of 1997. After the investigation was over, charge-sheet against the petitioner was filed Copies of some of these statements have been collectively attached with the petition. Since the statements and the panchanama are all in Marathi, Mr. Sabnis, learned Senior Counsel appearing for the petitioner, has very kindly made available for the Court English translations of all the documents. It is stated by the petitioner, which is reiterated by Mr. Sabnis, that the petitioner has been falsely implicated by the police. This is so, according to Mr. Sabnis, as the police had already falsely involved the petitioner in a number of cases. In all these cases, it is submitted by Mr. Sabnis, the petitioner has been released on bail In two cases registered under Terrorist and Disruptive Activities Act, hereinafter referred to as 'TADA', being Special Case Nos. 42/91 and 31/1994 the petitioner has been acquitted. In other two cases being 864/94 and 1062/95 the petitioner has been discharged. The petitioner has been granted bail in nine cases bearing Nos. TADA Spl. Case Nos. 51/91 and 13/93 and Cases under various provisions of I.P.C. bearing Nos. 987/97, 193/97, 513/97, 308/88, 506/89 and 63/88. According to Mr. Sabnis, when the police did not succeed in the aforesaid cases they have foisted a case under Maharashtra Prevention of Dangerous Activities-Act, hereinafter referred to as 'MPDA'. Under this Act, the petitioner is kept in jail. The writ petition filed by the petitioner challenging the order of detention in that case is pending in this Court. It is further the case of Mr. Sabnis that it is only in the present case that the petitioner has been denied bail. He lays much stress on the fact that even according to the prosecution there is no direct involvement of the petitioner. The offence of conspiracy is always used against the petitioner whenever the police fails to implicate him in any other case. After the receipt of the charge-sheet the petitioner preferred the application for discharge in the Court of Session at Mumbai being criminal application No. 987 of 1997. This application has been rejected by order dated 5th December, 1997 which is impugned in the present writ petition.
3. Mr. Sabnis has taken the Court through all the statements made in the present case by the prosecution witnesses. It is submitted that the story put forward by the prosecution is so improbable that no reasonable person could form the opinion on the basis of the same even if proved that the petitioner is guilty of the offences with which he is charged. First of all Mr. Sabnis takes the statement made by Mr. Ramesh Chhaganlal Shah, the partner of the deceased. He points out that in this statement which is recorded on 19th August, 1997 i.e. the day of the incident, the only allegation made is that Mr. Shah is sure that the said incident had resulted from the extortion matter. The relevant portion of the statement is as under.
I am sure that the said incident has resulted from the extortion matter. The same is because about five/six months back three persons, had visited the residence of Mr. Natwarlal Desai at Vile Parle. Mr. Natwarlalbhai had told me demand was made by these (three) people by saying that they have come from the 'Arun Gawli gang'. Thereafter also Mr. Natwarlal had told me that threats were given on telephone by the 'people of Arun Gawli'. But on account of fear, we had not informed about the incident that had taken place. 5/6 months back or about the telephonic threats to the police or had asked for the police protection.
Mr. Sabnis states that this is a very general statement. No details whatsoever are given as to when the demands for extortion were made, by whom they were made. There is absolutely nothing in the statement to the effect that the petitioner himself had issued any threats. It is merely stated that according to the deceased demand was made by three persons who claimed that they had come from the 'Arun Gawli Gang'. Mr. Sabnis vehemently submits that this statement of Mr. Shah cannot be relied on at all as the same does not even mention the time at which it was recorded. There is another statement of Mr. Shah recorded on 20th August, 1997. In this statement Mr. Shah has stated that one other builder in the city had also been threatened for extortion by the same-gang. He further states that the said builder has lodged a police complaint at the Juhu Police Station. It is further stated as under:
Today the police shows me a black colour pocket diary. I am sure that the said diary is of the deceased late Mr. Natwarlal. To my knowledge there is no uncle alive by name 'Mama' of the deceased late Mr. Natwarlal Desai nor the name of any of his relatives is 'Mama'.
Learned counsel Mr. Sabnis states at this stage that a bare perusal of the statement would show that the police is fabricating documents and padding the case. The statements have been recorded merely to fill in the gaps in the prosecution case. Learned counsel then points to the panchanama which is recorded on 19th August, 1997. He submits that the black diary emerges for the first time when the panchanama is being recorded. In order to introduce the black diary the following is recorded therein :--
Further, a pocket diary, having black colour reckzine cover of Eagle Company, for the year 1997. The first page of the said diary contains the particulars of the deceased person.The said diary has got the nothings till the date 21 st August, 1997. Further, it is seen that there are other chits of papers containing thereon the phone numbers and money account and some other nothings. The said diary and the (contains therein) are seen filled with full of blood half way down.
He says that in order to lend credence to these comments recorded above, the statement of Mr. Shah has been recorded again on 20th August, 1997. Mr. Shah had not mentioned anything about the black diary in the statement dated 19th August, 1997. Next comes the statement of the Driver,which is also recorded on 19th August, 1997. The driver states that on the day of the incident he picked up the partner of the deceased whilst he was driving the deceased to the office. He says that his daily routine was that the deceased, would leave in his car (driven by this witness) and pick up Mr. Shah on the way to the office. He then describes the whole, incident as it takes place. He attributes the following words to one of the assailants.
Chala Chala Kam Zale Aahe (i.e. come on, come on, the work is done.
This driver also further states as under :
On being asked as to Whether my owner Shri Natwalal Desai had received threats, I inform as follows : About 5/6 months back three Gawli Gang people had visited the residence of the owner Shri Natwarlal. I learnt that they had threatened Shri Natwarlal with regard to extortion. Once, 5/6 months back, I had, taken Mr. Natwarlal to the Dagdi Chawl at Byculla in the afternoon. At that time I had stopped the car near the temple, at that time 'Sheth' (Mr. Natwarlal) had returned back approximately after half an hour. At that time he was somewhat worried and fearful.
Mr. Sabnis submits that these statements made by the driver are pure figment of imagination of the police. He says it cannot even be imagined that the Driver would have been told about the threats of extortion. He submits that when the statement of the only son-in-law of the deceased is examined it will become apparent that the deceased had not even informed his only son in law about the demand of extortion. Therefore, he submits that it is incredulous that the deceased would have informed the driver about the extortion. At the same time Mr. Sabnis has drawn my attention to the statement of the son-in-law which is also recorded on 19th August, 1997. A perusal of the said statement clearly shows that the son-in-law does not mention about any extortion demands. He rather goes on to say 'My father-in-law Shri Natwarlal Desai has been murdered by some unknown persons by firing bullets on him from the revolver. To my knowledge he had no enemy nor he had any dispute with anyone.' Mr. Sabnis further states that one of the so called assailants was actually eliminated by the police. Having eliminated him, (he police called three witnesses i.e. the driver, watchman and Peon of the deceased to identify the eliminated suspect. But whilst calling them, they were informed that the person they were going to identify is suspected to be one of the two persons who murdered the deceased. These facts are so recorded in the statements which have been pointed out to the court. Thus it is submitted that on the basis of the law now laid down by the Supreme Court, the petitioner is clearly entitled to discharge. It is submitted that the so called black diary has not been sent for expert's examination till date. He further submits that there is absolutely no evidence whatsoever of conspiracy. Mr. Sabnis relies on a judgment of the Supreme Court reported in : (1995)1SCC142 (P. K. Narayanan v. State of Kerala) to submit that in cases of conspiracy motive and preparation for the commission of the offence are not sufficient. It is submitted that the Supreme Court) has categorically held that an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. He further submits that inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. Counsel thereafter relies on the judgment of the Supreme Court in the case of State of U.P. v. Dr. Sanjay Singh 1994 (2) Supp SCC 707. He relies on paragraph 15 of the said judgment wherein the Supreme Court observes that admittedly there is no direct evidence to prove the conspiracy except by circumstantial evidence. The Supreme Court thereafter observes. 'Therefore, we have to find out whether the circumstantial evidence placed on record makes sufficient ground for proceeding against the respondents/accused for the offence with which they were indicated.' Thereafter the Supreme Court observes as follows :
19. When we scrutinise the entire material placed on record, even if unrebutted or totally accepted, we are of the view that they do not make out a case for conviction and the mere suspicion of motive cannot serve as a sufficient ground for framing the charges in the absence of any material, prima facie showing that the particular motive has passed into action and that the accused is connected with that action in question.
Relying on this judgment, Mr. Sabnis submits that the Supreme Court has scrutinised the entire material placed on record and then came to the conclusion that there was no material placed on the record to proceed in the matter. In paragraph 20 of the said judgment the Supreme Court has relied on an earlier judgment given in the case of Century Spinning and . v. State of Maharashtra : 1972CriLJ329 . Paragraph 20 of the judgment is as follows :
20. This Court in Century Spinning & . v. State of Maharashtra while examining the scope of Section 251(A) sub-sees. (2) and (3) of the old Code corresponding to Sections 239 and 240 of the new Code has made the following observation : SCC p. 291. para 16 : AIR p. 552, para 16....If on this material, the Court comes to the conclusion that there is no ground for presuming that the accused has committed an offence, then it can appropriately consider the charge to be groundless and discharge the accused. The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of of section or on its judicial interpretation or on any other recognised principle of law. The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecution authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.
In view of the above, submits Mr. Sabnis, that without further do the petitioner is entitled to be discharged. It is submitted that in the aforesaid case known as Century Spinning case the Supreme Court had categorically observed that the High Court should always come to the aid of a person to avoid unnecessary harassment. Mr. Sabnis submits that the facts of this case are as such that the petitioner is being unnecessarily harassed.
4. Learned counsel thereafter relies on another judgment of the Supreme Court reported in : 1990CriLJ1869 (Niranjan Singh Karam Singh Punjab v. Jitendra B. Bijjaya). Analysing the facts and circumstances of that particular case, the Supreme Court came to the conclusion that although the accused therein may be triable under Section 302 of the IPC but they can certainly not be tried under TADA. It was held that merely because the commission of the crime of a murder had caused terror and confusion at the time of the commission of the offence it could not be said even if the case of the prosecution was believed that the petitioners were guilty of offences under TADA. Mr. Sabnis relies on the following observations of the Supreme Court (at p. 1874) of Cri LJ): .In assessing this fact it is not necessary for the Court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under:
(1) that the Judge while considering the question of framing the charges under Section 227 of the Code 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.
(2) 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.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, 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 does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
In view of the above, it is submitted by Mr. Sabnis that it was the duty of the trial Court to sift the evidence. He ought to have taken into account the intrinsic value of the statements made by the prosecution. He Submits that if there had been any proper examination of the statements as required under the law. the trial Court could only come to one conclusion and that is to discharge the petitioner. Mr. Sabnis thereafter relies on a judgment of the Supreme Court in the case of Satish Mehra v. Delhi Administration : (1996)9SCC766 . It is submitted by Mr. Sabnis that after considering the scope of Section 227 of the Code of Criminal Procedure, the Supreme Court examined the question whether the Sessions Judge can look into any material other than those produced by the prosecution. In paragraphs 15 and 16 it is observed as under.
15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of workload. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself.
16. In the present case learned Sessions Judge has missed certain germane aspects. Apart from the seemingly incredulous nature of the accusations against a father that he molested his infant child (who would have just passed her suckling stage then) the Sessions Judge ought not to have overlooked the following telling circumstances.
On the basis of these observations, Mr. Sabnis submits that if the further conduct of the trial is going to be an exercise in futility or, a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227: of the Code itself. Thereafter referring to paras 17 to 21 of the judgment Mr. Sabnis demonstrated that the Supreme Court examined threadbare all the evidence and the material which was on the record. He further, submits that the ratio of the judgment is in para 22 that the charges have to be propped when there is no reasonable prospect of the offences being proved. This, according to Mr. Sabnis, is a departure from the earlier law. He submits that the Courts are becoming increasingly aware of the value to be attached to an individual' s liberty. Thus the Supreme Court has held in Mehra's case that the case of the prosecution should point to the guilt of the accused, beyond reasonable doubt, at the stage of framing of the charge. For this purpose, he submits that the Court has the power to sift and weigh the evidence at the initial stage itself. The proceedings will only continue if the Court comes to the conclusion that there is a very strong suspicion leading to a reasonable belief of conviction. This test, accepts Mr. Sabnis, of course, will depend on the, facts of each case. He submits that if on the basis of the material two views are possible then the accused is entitled to discharge. The evidence has to be examined broadly. In this case Mr. Sabnis further submits that the Supreme Court even looked into the intention of the parties to see as to whether or not the offence had been committed. The Supreme Court had noted particular facts in that case tending to prove or disprove the allegations which had been made by the complainant. In this perspective, it is submitted by Mr. Sabnis that, there is not an iota of evidence to connect the petitioner with the present offence. The prosecution has been launched at the instance of the police as has been done on numerous earlier occasions.
5. As opposed to this, the learned A.P.P. Mr. Rajiv Patil submits that the law has been settled for many decades on the question of the interpretation of Section 227 of the Cr. PC. He;further submits that the observations which have been made in Satish Mehra's case do not advance the case of the petitioner any further. Counsel has also relied on a judgment of the Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs v. Anil Kumar Bhunja : 1979CriLJ1390 . He submits that the law which has been laid down in the said judgment has not undergone any change as suggested by Mr. Sabnis. He submits that any possible defence that may be available to the petitioner is not at all relevant at this stage. He further submits that the Court merely has to see that if the entire evidence is taken at its face value then is it or is it not sufficient to proceed with the case. In other words, Mr. Patil submits that it is only the prima facie satisfaction of the Court which is required at this stage. The prosecution is not required to establish its case beyond reasonable doubt at the time when the charges are going to be framed. He further submits that apart from the judgment in Suptd. & Remembrancer of Legal Affair's case : 1979CriLJ1 (supra) the judgment cited by Mr. Sabnis in fact lays down the same laws. He submits that the same principles have recently reiterated by the Supreme Court in the case of State of Maharashtra v. Priya Sharan Majaraj : 1997CriLJ2248 .
6. I have anxiously considered the arguments put forward by both the learned counsels.
7. There is no dispute with the proposition put forward by Mr. Sabnis that conspiracy cannot be proved merely on the basis of inferences. The inferences have to be backed by evidence. There is also no dispute with the proposition put forward by Mr. Sabnis that if the material put forward by the prosecution is insufficient to bring home the guilt of the accused then he is entitled to discharge. There is also no dispute with the proposition of Mr. Sabnis that the Court has to examine the evidence. There is also no dispute that the Court can take into account the material produced by the accused. A perusal of the ratio of the judgment of the Supreme Court in Dr. Sanjay Singh's case (supra) shows that the Supreme Court came to the conclusion that the circumstantial evidence even if accepted in its entirety creates only a suspicion of motive. The Supreme Court also observed that the entire material placed on the record even if unrebutted or totally accepted do not make out a case for conviction. The mere suspicion of motive cannot serve as a sufficient ground for framing the charges in the absence of any ingredient prima facie showing that the particular motive had passed into action and that the accused is connected with that action in question. These observations of the Supreme Court, in my considered opinion are of no avail to the petitioner herein. In the Century Spinning's case it was held that if on the basis of the material placed before the Court it comes to a conclusion that there is no ground for presuming. that the accused has committed an offence then it can appropriately consider the charge to be groundless and discharge the accused... The Supreme Court further held that even at the stage of framing of charges the Court has to apply its judicial mind for considering whether or not there is ground for presuming the commission of the offence by the accused, the Court must not blindly adopt the decision of the prosecution. In Niranjan Singh's case : 1990CriLJ1869 (supra) the Supreme Court has held whilst assessing the evidence and material on record that it is not necessary for the Court to enter into the pros and cons of the matter or in weighing and balancing of evidence and probabilities. The Court may however evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. Thereafter the Court proceeded to lay down four general principles. I am of the considered opinion that the case of the petitioner does not fall within any of the aforesaid four principles. Considered in the light of these propositions, it has to be seen that at present there are categoric statements made by witnesses which if unrebutted would lead to the conviction of the accused. It is also a matter of record that at the time of the framing of the charge the petitioner had not placed any other material on the record which the Court could have taken into consideration. All that has been done by Mr. Sabnis, learned counsel for the petitioner, is to attack the veracity and credibility of the statements. Taking the statements at their face value, I find it difficult to hold that there is no reasonable chances of the petitioner being convicted. I find it difficult to accept that the Court has to examine the evidence with the same eyes and with the same standards as the trial Judge would examine the evidence at the final stage of the trial. The main judgment relied upon by Mr. Sabnis : (1996)9SCC766 , Satish Mehra's case, may now be considered. From this judgment it can readily be seen that the facts of the case had shaken the judicial conscience of the Court. The allegations were made by the wife that the husband whilst in America had sexually abused his three year old daughter. Indeed the judgment of the Supreme Court opens with the comments 'Some eerie accusations have been made by a wife against her husband. Incestuous sexually abuse, incredulous ex facie, (Emphasis supplied) is being attributed to the husband'. Thus without going any further merely by looking at the complaint the Supreme Court had come to the conclusion that the allegations are incredulous ex facie1. Thereafter the Supreme Court narrates the facts which without going into any strenuous examination would reveal that the case which was foisted on the husband was patently false. The husband and wife had three children. Nikita, the eldest was born on 2-4-1988. The relationship between husband and wife whilst living in America had been totally miserable. The wife had been complaining that the husband was a habitual drunkard and that he has been ill-treating her. The husband on the other hand was claiming that the wife had serious psychiatric problems. The husband therefore approached the Court in New York and secured the custody of his children. Thereupon the wife left on 31st October, 1992, the matrimonial home and took the children with her. She filed a complaint before the New York police alleging sexual abuse of Nikita. the police investigated and found the allegation to be totally unfounded against the husband. The medical examination also showed that there was no evidence of any abuse. On 7th March, 1993 the wife returned to India. In the meantime the Family court at New York had ordered that the custody of the children be given to the husband. Even a warrant of arrest was issued against the wife. Therefore, whilst in India on 19th March, 1993 wife filed a complaint with the 'Crime Against Women Cell (CAW Cell for short). She repeated the allegation that the husband had sexually abused Nikita in the United State. CAW Cell closed the case on the ground that they have no jurisdiction to enquire into complaints of offences committed outside India. She went back to America and then returned to India on 12th July, 1993. Thereafter she filed a petition for habeas corpus claiming custody of her children. She also filed a complaint on 14thAugust, 1993 before the Greater Kailash Police Station. FIR was registered as Crime No. 197 of 1993 for offences under Section 354 and 498-A of the Indian Penal Code. The offence under Section 376 of the IPC was subsequently added. The committal proceedings in the rape case took place during the pendency of the Special Leave Petition filed by the husband. The Supreme Court directed the Sessions Judge on 22nd February, 1996 'to apply its mind to the case committed and see whether a case for framing charge/charges has been made out or not'. The learned Sessions Judge, by a detailed order found that no charge under Section 498-A, IPC could be framed against the appellant. He, however, held that charges for offences under Sections 354 and 376 read with Section 511 of IPC should be framed against the husband. The first charge related to the husband fondling the private parts of Nikita. The Supreme Court examined the scope of the power under Section 227. Section 227 is reproduced in para 9 which is as under :
9. Considerations which should weigh with the Sessions Court at this stage have been well designed by Parliament through Section 227 of the Code of Criminal Procedure (for short 'the Code') which reads thus:
227. Discharge:- If, upon consideration of the record of the case and the document submitted therewith and after hearing the submission of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Section 228 contemplates the stage after the case survives the stage envisaged in the former Section When the Court is of opinion that there is ground to presume that the accused has committed an offence the procedure laid down therein has to be adopted. When those two sections are put in juxtaposition with each other the test to be adopted becomes discernible : Is there sufficient ground for proceeding against the accused It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is 'sufficient ground for proceeding'. (Vide State of Bihar v. Ramesh Singh and Supdt. and Remembrancer of Legal Affairs v. Anil Kumar Bhunja).
(emphasis supplied).
Thereafter the Supreme Court deals with incidental issue as to whether the evidence can be examined by the Court whilst deciding whether charge is to be framed or not. In para 10 the Supreme Court observes that the Court can sift and weigh the materials on record by seeing whether there is sufficient evidence for commitment (emphasis supplied). It observes that the purpose of the exercise is to find out whether a prima facie case against the accused has been made out. It is no where held that the Court has to come to the conclusion that a proof beyond reasonable doubt exists. Similarly while referring to the judgment of Union of India v. Prafulla Kumar : 1979CriLJ154 Samal in paragraph 11 the Supreme Court observed that the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. (emphasis supplied) In fact the Court cautioned that a roving enquiry into the pros and cons of the case by weighing the evidence as if he was conducting the trial is not expected or even warranted at this stage. In paragraph 15 the words used are 'when the Judge is fairly certain (emphasis supplied) that there is no prospect of the case ending in conviction'. In the very same paragraph the Supreme Court says that if the Sessions Judge is almost certain (emphasis supplied) that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings at the stage of Section 227 of the Code itself. In paragraph 16 the Supreme Court said that in the case under examination apart from the seemingly incredulous nature of the accusations against a father that he molested his infant child the Sessions Judge ought not to have overlooked the following telling circumstances. Having first come to the conclusion that the allegations by themselves ex facie are incredulous, the Supreme Court examined the material to find further support for the conclusion which had already been arrived at in para 1 of the Judgment. For these reasons I am unable to agree with the submissions of Mr. Sabnis that there has been a change in the law with regard to Section 227 of the Criminal Procedure Code. These views of mine are further supported by the judgment cited by Mr. Patil in the case of State of Maharashtra v. Priya Sharan Maharaj : 1997CriLJ2248 . In that case the accused was said to be a saint. He was, however, accused of molesting and raping his disciples. The plea put forward for discharge was that the accused therein was a saint person having thousands and millions of deciples. Therefore, it is inconceivable that he would commit the offence of rape. The High Court whilst examining the matter took into account a large number of authorities of the Supreme Court and held that the charges ought not to have been framed. The Supreme Court, however, held as follows in paragraph 9 (Of J.T.) (Para 8 of Cri LJ):
9. The law on the subject is now well settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bijjaya : 1990CriLJ1869 . that at Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all the prosecution states as gospel truth even if it is opposed, to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
In paragraph 13 (of J.T.): (Para 11 of Cri LJ) of the judgment the Supreme Court considered an argument similar to the argument put forward by Mr. Sabnis. He had submitted that these cases are being foisted against the petitioner because he is the leader of a Political Party. This Political Party is said to be recognised by the Election Commission of India. Thus it is submitted that it is the political rivals of the petitioner who instigate the police to implicate him in false cases. In my view, at the stage of framing of charges these issues are wholly irrelevant. The evidence has to be examined and sifted with a view to see whether there is a prima facie case made out for proceeding with the case. Even in the case of Satish Mehra : (1996)9SCC766 (supra) the Supreme Court has said that it is to be seen whether there is sufficient evidence for proceeding against the accused. The Supreme Court has not held that the Court should be satisfied that there is evidence to convict the accused before coming to the conclusion that it is a fit case for framing of charges. This view is reiterated by the Supreme Court in paragraph 13 of the judgment in Priya Sharan Maharaja's case : 1997CriLJ2248 . The said paragraph is as under :-
13. The above quoted paragraphs from the judgment clearly disclose that the High Court was much influenced by the submission made on behalf of the defence that Kripalu Maharaj is a saint old man, who has renounced the world, who is engrossed in spiritual activity and who has thousands/millions of disciples all over India and, therefore, he was not likely to indulge in the illegal acts alleged against him. It failed to appreciate that it is not unusual to come across cases where the so-called spiritual heads exploit young girls and women who become their disciples and come under their spell. Moreover, the reasoning of the High Court that it also does not stand to reason that a saintly man who has, thousands/millions of disciples all over India would commit sexual intercourse with a pracharal of his cult in presence of his disciples stands vitiated because of the vice of misreading the statements. The three girls have nowhere stated in their statements that R-2 had sexual intercourse; with them in presence of other disciples. The High Court gave too much importance to the conduct of the three victims and the delay in disclosing those illegal acts to their parents and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would depend upon the circumstances in which she is placed. It often happens that such victims do not complain against such illegal acts immediately because of factors like fear of shame or uncertainties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. What the three girls had stated in their statements was not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such a long time. What the High Court has failed to appreciate is that while making a complaint to the police or giving their statements they were not required to give detailed explanations. As stated earlier, what the Court has to consider at the stage of framing of the charge is whether the version of the person complaining together with his/her explanation is prima facie believable or not. It was, therefore not proper for the High Court to seek independent corroboration at that stage and to quash the charge and discharge the accused in absence thereof. (emphasis supplied). It was also improper to describe the version of Sulakshanaas false because no extensive injuries were noticed on her person while she was examined by a doctor on the basis of some observations made in Modi's textbook on 'Medical Jurisprudence and Toxicology'. We do not think it proper to say anything further as in the view that we are taking, the accused will have to face as trial and whatever observations we make now may cause some prejudice to them at the trial We would only say that the High Court was wholly wrong in discarding the before the Court as false and discharging the accused on that ground. (emphasis supplied),. ; As noticed above, similar was the argument put forward by Mr. Sabnis to the effect that these cases are being foisted against the petitioner because he is the leader of a Political Party. In view of the law declared by the Supreme Court, I am unable to agree with the submission of Mr. Sabnis that even at the stage of framing of the charge the prosecution evidence should be such that it would lead to a conclusion beyond reasonable doubt that the accused is guilty. All that is necessary at the stage of framing the charges is that there should be enough evidence, uncontroverted, to proceed with the trial. The possible defence is irrelevant at this stage unless they go to the root of the ease. In Satish Mehra's case : (1996)9SCC766 (supra) the Supreme Court in the opening sentence observed that 'some eerie accusations have been made by a wife against her husband'. Thus the Supreme Court had directed the learned Sessions Judge to enquire whether there is sufficient material to frame the charges. I would be hesitant to give my own views on the evidence which has been produced by the prosecution at this stage. Suffice it to say that if uncontroverted this would be sufficient to proceed against the accused. The points which have been raised by Mr. Sabnis can well be answered. But let them be answered at the proper stage of the trial, one way or the other. Let it, however, be said that I do not find the present case to be such that even if uncontroverted it would lead to a conclusion that even the charge cannot be framed against the accused. In Satish Mehra's case : (1996)9SCC766 (supra) the Supreme Court discarded the evidence of CAW Cell and commented adversely on the same. The Supreme Court also took into account the fact the New York Police had already found the allegations made by the wife to be unfounded. The Supreme Court also observed that there was sufficient time for the wife to manipulate the genital of the infant, since the medical examination in New York. The medical examination in New York on 24-11-92 had revealed no evidence of sexual abuse. Yet the allegation was made that the infant had been sexually abused in July, 1991. It was in these circumstances that the Supreme Court observed as under in paragraph 20 :
20. In the above context the petitioner drew our special notice to a medical report issued by Dr. Prabha Ka'poor (Children Medical Centre, Jorbagh, New Delhi) on 26-7-1993. It is stated in the report that Nikita was brought to the doctor by the; second respondent and on examination of the genitals of the child the doctor noticed 'a wide vaginal opening wider than would be expected of her age group'. On the strength of the aforesaid medical report, petitioner made a frontal attack on second respondent, alleging that in order to concoct medical evidence against him the little child's genitals would have been badly manipulated by its mother. To substantiate this allegation he drew our attention to the US police report, in which there is mention of a medical examination conducted on Nikita by a US doctor (Dr. Gordon) on 24-11-1992. that doctor pointed out that there was absolutely no indication of any sexual abuse when the child was physically examined. If the medical examination done on the child in November 1992 showed such normal condition, petitioner posed the question who would have meddled with the child's genitals before 26-7-93, to cause such a widening of the vaginal orifice (We now remember again that, as per the present case, the last occasion when the petitioner should have abused the child was in July 1991). The aforesaid question, posed by the petitioner in the context of expressing grave concern over what the mother might do with the little female child for creating evidence of sex abuse, cannot be sidelined by us in considering whether the case should proceed to the trial stage.
The Supreme Court also took notice of the fact that in the SLP the wife was prepared to settle provided Mr. Mehra did not reclaim the money that the wife and her father had taken out of the account of the husband. The husband was prepared to drop the claim regarding the huge amount of money misappropriated by the wife. These were all matters on which no oral testimony was required. But herein the statement made by the witnesses have yet to be subjected to cross examination. Thus I find it a little difficult to put the case of the accused in the present case at par' with that of the husband in the case of Satish Mehra. In view of the above I find no merit in the writ petition. The same is hereby dismissed with no order as to costs.
The facts narrated whilst deciding the Criminal Writ Petition would make it amply clear that very serious allegations are made against the applicant. He is alleged to have ordered the cold blooded pre-medicated murder of the deceased. Merely because the applicant has been released on bail in the other cases which have already mentioned in the judgment is no ground to hold that the applicant deserves to be released on bail in this case also, I do not find that this is a fit case in which bail ought to be granted. In view of the above, the application for bail is also rejected.
Certified copy expedited.