Bombay High Court
Prasanna Kantilal Mehta vs The State Of Maharashtra on 22 November, 2024
2024:BHC-AS:44970
P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1896 OF 2018
Mr. Prasanna Kantilal Mehta,
Age 42 years, Occupation : Business,
Residing at B-42,
Padmavati Nagar C.H.S.,
Dhankawadi, District Pune. .... Petitioner
Vs.
1. The State of Maharashtra
2. C.B.I., ACB, Mumbai .... Respondents
WITH
CRIMINAL WRIT PETITION NO. 1897 OF 2018
Shri. Suryakant Gulabrao Helkar,
Age 62 years, Occupation : Business,
Residing at Pent House No.21, 6th Floor,
Sai Ganesh Kunj, Bibwewadi,
Behind Chintamani Hotel,
District Pune. .... Petitioner
Vs.
1. The State of Maharashtra
2. C.B.I., A.C.B., Mumbai .... Respondents
Mr. Aabad Ponda, Sr. Advocate along with Mr. Rishi Ghorpade,
Adv. Harshada Shrikande and Mr. Siddharth Mehta for the Petitioner
in WP/1896/2018.
Mr. Manoj Mohite, Sr. Advocate a/w. Adv. Melwyn Pereira,
Mr. Chirag Shah i/b. Chaitanya Malgaonkar for the Petitioner
in WP/1897/2018.
Ms. P.P. Bhosale, APP for the State.
Mr. Kuldeep Patil, Special PP a/w. Mr. Ashish Kumar Srivastava
for the Respondent-CBI.
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P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc
CORAM : SHYAM C. CHANDAK, J.
ESERVED ON : 11th SEPTEMBER, 2024.
PRONOUNCED ON : 22nd NOVEMBER, 2024.
JUDGMENT :-
. Petitioners, who are Accused Nos.2 and 1 respectively in C.C.No.1171/PW/2010, have preferred present Petitions under Article 227 of the Constitution of India and Section 482 of Cr.P.C. seeking for quashing and setting-aside of the impugned common Order dated 27 th January, 2017 passed by the 3rd Court of learned Additional Chief Metropolitan Magistrate, Esplanade, Mumbai thereby said Court rejected the Discharge Applications of the Petitioners at Exhibits-18 and 17 respectively, filed in the said case; and quashing and setting- aside of the common Order dated 05 th March, 2018 passed by the learned Additional Sessions Judge, Greater Mumbai thereby said Court dismissed the Criminal Revision Application of the Petitioners bearing Nos.231 of 2017 and 230 of 2017, respectively and upheld the impugned common Order dated 27th January, 2017.
1.1) Swati Gaware, Inspector of Police, CBI filed her affidavit in WP/1986/2018 and opposed the Petitions on behalf of the Respondent.
2) Rule. Rule made returnable forthwith and heard finally with consent of the learned Counsels for the respective parties. 2/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 :::
P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc 3) First informant-S. Suresh, a Chartered Accountant, is
resident of Hyderabad. A software export deal was struck between Chakkilam Infotech Ltd., Pioneer e Labs Ltd. and Control S Ltd., as exporters of Hyderabad and 2 Companies from United Kingdom, as purchasers. The said deal was materialized through one Mr. Venkata Reddy, Accused No.3, referenced to S. Suresh by one Mr. Nikunj Parekh. Later on, S. Suresh was informed that, the British Companies have transferred money on 30th April, 2010 by way of LC to the bank accounts of the aforesaid exporters, in relation to the said business transactions. However, S. Suresh found that, said money was never credited to the said bank accounts and therefore, S. Suresh contacted Accused No.3 and apprised him the situation. In turn, Accused No.3 assured that, the money will be credited within a day or two, but it was not. Thereafter, S. Suresh tried to contact the Accused No.3 but the later avoided to talk and his mobile phone was switched off. Therefore, S. Suresh contacted Mr. Nikunj Parekh who gave the mobile number of one S.K. Jain (Petitioner-Prasanna Mehta who allegedly impersonated himself as S.K. Jain) as S.K. Jain and Accused No.3 were friends. Thereafter, S. Suresh contacted S.K. Jain on phone and discussed the issue and requested him to give the whereabouts of Accused No.3. On 27th May 2010, at about 10:00 p.m., S.K. Jain called S. Suresh and told that CBI people have called him (S.K. Jain), 3/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc Accused No.3 and S. Suresh on 28th May 2010, as somebody has given complaint to CBI about the aforesaid business transactions. S.K. Jain further told that, he has paid Rs.3 lacs as bribe to CBI officer and got his name removed from this case and he suggested S. Suresh to speak to CBI people, pay the bribe amount and get rid of the case. S.K. Jain told S. Suresh that, if the latter wanted, the former will help him in the matter. On the next day, S. Suresh received SMS from one Ram Singh (Petitioner-Suryakant Helkar who allegedly impersonated himself as Ram Singh) claiming himself to be a PI in CBI, Mumbai. Further, said Ram Singh directed S. Suresh to talk to S.K. Jain and solve the problem. On the next day, S.K. Jain told S. Suresh over mobile phone that, Ram Singh had initially demanded Rs.15 lacs as bribe but he negotiated and finally Ram Singh has agreed to accept Rs.10 lacs for removing the first informant's name. On 02nd June 2010, Mr. S.K. Jain told S. Suresh on mobile phone that he has to arrange Rs.5 lacs immediately and remaining Rs.5 lacs after 3 to 4 days. The mobile numbers used by S.K. Jain and Ram Singh were 09769753520 and 09619328531 respectively. Thereafter, on 03rd June 2010 itself, S. Suresh lodged a complaint with CBI, ACB, Mumbai against Ram Singh and S.K. Jain. In turn, police verified the complaint. Meanwhile, on various occasions, phone calls were made to and received from the said numbers by S. Suresh. The bribe demand verification 4/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc panchanama confirmed that, S. K. Jain and Ram Singh were demanding the bribe amount. Thereafter, as told during the said phone calls, S. Suresh carried a bribe amount of Rs.4 lacs to Hyderabad to deliver it at certain place, as desired by S.K. Jain. Police laid a trap there and caught two persons namely Mr. Haresh Kumar Amrutbhai Patel and Vihol Ramdevsinh (Darbar) while accepting the bribe amount. On inquiry with them, they confirmed that the said amount was received as Hawala and in turn, S. K. Jain was to receive the same amount in Mumbai at a particular Angdia Service Centre. Thereafter, police arranged the trap at the said Angdia Service Centre involving said Mr. Haresh Kumar and Vihol Ramdevsinh. Then, S.K. Jain sent his friend Accused No.4 at the said Angdia Service Centre to collect the bribe amount. However, Accused No.4 did not go there personally and he hired one Shashikant Revappa Kore and sent him to collect the money, impersonating as Arvind. Then police caught said Shashikant when he went to the said Angadia Centre to collect money and immediately thereafter police apprehended the Accused No.4 who was waiting near the said Angdia Centre. On inquiry, the Accused No.4 revealed that, he was sent by Jainbhai @ S.K. Jain to collect the bribe amount from the said Angdia Service Centre. Therefore, the Petitioners came to be arrested.
4) Investigation revealed that, the Petitioners impersonated 5/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc
them as Ram Singh and S.K. Jain (@ Jainbhai), contacted S. Suresh and demanded bribe of Rs.4 lacs from him, giving an assurance to remove his name from the probable prosecution to be filed by the CBI, as above. Then pursuant to their disclosure statement under Section 27 of the Evidence Act, both the Petitioners showed the place where they destroyed the mobile phones and the sim card, used in the offence. Police collected the voice samples of both the Petitioners. The earlier mobile phone calls exchanged between S. Suresh and both the Petitioners were recorded from time to time.
5) That, witnesses namely Hareesh R. Kunder and Sachin Parakh, were made to hear the voice of the respective Petitioner in the recorded conversation. Both the witnesses confirmed that, the voice they heard is of the respective Petitioner. Hareesh R. Kunder revealed that, he is a Branch Head, of Bharat Co-Op. Bank Ltd., Dhankawadi, Pune, where Petitioner Surykant Helkar and his family members are having their bank account. Many a times he had spoken to Suryakant Helkar face-to-face and over phone, therefore, he is acquainted with his voice. Mr. Sachin Parakh, Pune disclosed that, he is a Chartered Accountant and the Petitioner Prasanna Mehta is his client. Many a times he had spoken to Prasanna Mehta face-to-face and over phone, therefore, he is acquainted with his voice. The questioned/recorded telephonic conversations and the voice samples of the Petitioners were 6/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc sent to the scientific voice expert. Said expert confirmed that, the sample voices matched with the questioned voices. Hence, police submitted charge-sheet against the Petitioners and their co-accused for commission of the offences punishable under Sections 120-B read with 170, 419 and 420 of the Indian Penal Code.
6) In contrast, the Petitioners claim that, there is no legal evidence against them and whatever evidence is collected, it is insufficient to establish that they have committed the said offences. Hence, they preferred the Discharge Applications at Exhibits-18 and 17 respectively. However, the learned Additional Chief Metropolitan Magistrate rejected the said Applications by the impugned common Order dated 27th January, 2017. The Petitioners assailed the said common Order by filing Criminal Revision Application Nos.231 of 2017 and 230 of 2017 respectively, but the Revisions were rejected by the impugned common Judgment and Order dated 05 th March, 2018 passed by the learned Additional Sessions Judge, Greater Mumbai. Hence, the Petitions.
7) Mr. Ponda, learned Senior Counsel for the Petitioner in WP/1896/2018 and Mr. Mohite, learned Senior Counsel for the Petitioner in WP/1897/2018 submitted that, the report of the Scientific Officer/Forensic Expert only indicates that, the voices in the recorded telephonic conversations are probable voices of Petitioners, 7/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc whose specimen voice is recorded. Thus, it is evident that, the said opinion given by the Scientific Expert is not a conclusive proof that, the questioned voices are of the Petitioners. Except this, there is no other evidence against the Petitioners to connect them with the alleged crime. They submitted that, the investigation material interalia raises a suspicion that, the accused persons have committed this offence but not of grave suspicion which is required to frame the charge and put the Petitioner on trial for the alleged offence.
8) Additionally, Mr. Mohite, learned Senior Counsel for the Petitioner in WP/1897/2018 submitted that, the procedure by which the voice samples of the Petitioners have been obtained, is not a correct procedure because certain sentences from the transcription of the recorded calls were picked up as it is and put in the passages to be read by the Petitioners for the purpose of giving their voice samples. However, as per law, only words from the transcription of the recorded calls can be used for the purpose of taking a voice sample. He submitted that, the manner in which the questioned voices were played before the witnesses and their opinions as to the voice identification have been sought, is not a lawful identification of a voice of a suspect. As such, the voice samples have no legal sanctity. Thus, the process issued against the Petitioners for the alleged offences is not based on a legal evidence. Hence, the Petitioners are entitled for 8/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc discharge. However, the learned trial Court as well as the revisional Court failed to consider the aforesaid legal defects in the prosecution case.
9) Both learned Senior Counsel have emphatically relied upon the following reported decisions to support their submissions :-
9.1) Vikramjit Kakati Vs. State of Assam1 wherein the Hon'ble Supreme Court noted the principles applicable in cases of discharge, for which a reference was made to a decision in P.Vijayan Vs. State of Kerala & Anr2, which has been further reiterated by the Apex Court in M.E. Shivalingamurthy Vs. Central Bureau of Investigation, Bengaluru3 and discerned the following legal 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. 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
1. 2022 SCC OnLine SC 967
2. (2010) 2 SCC 398
3. (2020) 2 SCC 768 9/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc 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."
9.2) Delhi Race Club (1940) Ltd. and Others Vs. State of Uttar Pradesh and Anr4. In this case it is observed that, "... issuance of summons is a serious matter and, therefore, should not be done mechanically and it should be done only upon satisfaction on the ground for proceeding further in the matter against a person concerned based on the materials collected during the inquiry." 9.3) Ritesh Sinha Vs. State of Uttar Pradesh and Anr.5 and Pravinsinh Nrupatsinh Chauhan Vs. State of Gujarat 6. In these cases,
4. 2024 SCC OnLine SC 2248
5. (2019) 8 SCC 1
6. SLP (Cri.) No(s).4693/2023 (SC) 10/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc the Hon'ble Supreme Court has held that, an accused can be ordered by a Magistrate to give his voice sample.
9.4) Sudhir Chaudhary and Othrs. Vs. State (NCT of Delhi)7 and State of Rajasthan Vs. Vikramjeet Singh @ Vika Virk 8. In these cases, it is observed that, the text which the accused would be called upon to read out for the purpose of his/her voice sample should not have the sentences from the inculpatory text but can contain words drawn from the recorded conversations.
9.5) Nilesh Dinkar Paradkar Vs. State of Maharashtr9. In this case, no attempt was made to mix the voices of the accused persons with some other unidentified voices before asking the concerned witness to identify the suspected voices of the accused persons. The voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. The witnesses concerned were informed in advance as to whose voice they had to identify. Therefore, the evidence as to identification of the voices was rejected.
10) On the other hand, learned Retainer Counsel Mr. Patil for the Respondent-CBI strongly submitted that, there is sufficient evidence in the case which indicates that both Petitioners along with
7. (2016) 8 SCC 307
8. 2018(2) RLW 1591 (Raj.).
9. (2011) 4 SCC 143 11/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc their co-accused have committed this crime. As such, the impugned Order of rejecting the Revision Applications of the Petitioners is perfect in law.
11) I have carefully considered the evidence on record in the light of rival submissions and the reported decisions.
12) The most significant incriminating evidence available qua the Petitioners is in the nature of voice recording i.e., when they allegedly exchanged the phone calls with the informant S. Suresh and their voice samples. The Scientific Officer clearly opined that, the question voices in the recorded telephonic conversations matched with the voice samples of the Petitioners. Moreover, the statement of the witnesses recorded from time to time clearly indicate that, only Petitioners were instrumental in causing a fear in the mind of informant S. Suresh that he would be booked in some prosecution by the CBI and making him mentally prepared to give the bribe amount, as stated above. To get the bribe, the Petitioners purposely selected different locations. That apart, the Petitioners brought the Accused No.4 in aid, to collect the bribe/ransom money. The Accused No.4 was promptly inquired on his apprehension and he immediately disclosed that he was instructed by Petitioner Prasanna Mehta to collect the money from the Angdia Centre. The Petitioners did all this simply to play safe and not to leave any scope for being implicated in this crime. 12/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 :::
P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc The Accused No.4 did not go to collect the money personally, but employed third person for that. This is sufficient to presume that, the accused No.4 was aware of the ill-design of the Petitioners, otherwise there was no reason to indict an innocent person, giving him small amount as remuneration to complete the job of collecting the bribe money. The questioned voices of the Petitioners have been identified by the witnesses who knew them since considerable time and had spoken face-to-face as well as on telephone. Thus, there is grave suspicion against the Petitioners of having committed this crime. Looking at the nature of the evidence on record, it is safe to conclude that, if said evidence goes unchallenged in the cross-examination on behalf of the Petitioners, their conviction for the alleged offences is assured.
13) The Senior Scientific Officer in his 'Forensic Voice Examination Report' opined that, the subject voices are the 'probable' voices of the Petitioners. The said opinion is based on various minute details of the voice tests and the findings arrived at during the subject voices examinations. Nevertheless, much has been highlighted to demonstrate that the opinion recorded by the Sr. Scientific Officer is not a conclusive piece of evidence. Yet, looking at the question of discharge in the Petitions and the material evidence available on record vis-a-vis the definition of the expression 'Proved' stated in the 13/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc Evidence Act, in my considered view, at present, no exercise is needed to examine and lay a definite findings as to whether the opinion of Sr. Scientific Officer is conclusive proof or otherwise. Because in the definition of the expression 'Proved', indispensable stress is on the words 'so probable'. To amply clarify this, it is necessary to refer the relevant definition, which reads as under :-
"Proved".- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
14) In a recent decision in the case of Rajesh Yadav & Anr. v/s. State of U.P.10, the Hon'ble Supreme Court has held as under :-
"12. Section 3 of the Evidence Act defines "evidence", broadly divided into oral and documentary. "Evidence" under the Act is the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an "Adjective Law" highlighting and aiding substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt.
13. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is to the degree of probability in proving a fact through the
10. (2022) 12 SCC 200 14/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical influence.
14. Matters are necessary, concomitant material factors to prove a fact. All evidence would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also add strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
15. Matters do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
16. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar. 15/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 :::
P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc
17. What is important for the court is the conclusion on the basis of existence of a fact by analysing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it.
18. The word "prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
19. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an 16/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc issue of fact to be proved. However, we may hasten to add, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domain."
15) Having regard to the enunciation of law in Rajesh Yadav (Supra) and the facts of the case in hand together, in my considered view, an opportunity should be with the prosecution to prove its case on the touchstone of the cross-examination of the prosecution witnesses and then let the trial Court to conclude as to whether the alleged offences are made out or not. In other words taking that job in these petitions would be too premature and against the scope of the Article 227 of the Constitution and Section 482 of Cr.P.C.
16) No doubt, in the cases Sudhir Chaudhary (supra) and Nilesh Paradkar (supra), the Hon'ble Supreme Court directed a certain way/procedure to collect and establish the specimen voices. However, firstly, in my considered opinion, these two decisions do not mandate that for the reason of difference in the procedure of collecting and proving the suspect's voice, the earlier prosecution cases should be rejected at the threshold, more particularly when otherwise there is sufficient material to frame a charge of the alleged offence. Secondly, it is trite that each case should be decided on its own facts.
17) In the above context it is apposite to consider paragraph 34 17/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc
from the decision in the case of Nilesh Paradkar (supra), which reads as under :
"34. In Ram singh's case (supra), this Court also notices with approval the observations made by the Court of Appeal in England in the case of R. Vs. Maqsud Ali. In the aforesaid case, Marshall, J. observed thus:- "We can see no difference in principle between a tape-recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape- recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged."
18) Conspectus of the above discussion is that, considering the facts of the case and as provided in Section 240 of Cr.P.C., there is sufficient incriminating material against the Petitioners which forces an opinion that there is ground for presuming that the Petitioners have committed alleged offence triable under Chapter XIX of Cr.P.C. In other words, looking at the said material, it cannot be said that, the charge against the accused to be groundless as provided in Section 239 18/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 ::: P.H. Jayani 04 WP1896 AND 1987 OF 2018.doc of Cr.P.C. Therefore, the learned Magistrate is correct in rejecting the discharge Applications of the Petitioners and so also the learned Additional Sessions Judge who dismissed the Revisions assailing said common Order of rejection. As such, both the impugned Orders do not call for interference in these Petitions.
18.1) In the result, the Petitions are liable to be dismissed and Petitions are dismissed, accordingly.
PREETI (SHYAM C. CHANDAK, J.) HEERO JAYANI Digitally signed by PREETI HEERO JAYANI Date: 2024.11.26 18:34:52 +0530 19/19 ::: Uploaded on - 26/11/2024 ::: Downloaded on - 26/11/2024 23:19:46 :::