Bombay High Court
Yusuf Siddique Sayed And Ors vs The State Of Maharashtra on 15 November, 2019
Equivalent citations: AIRONLINE 2019 BOM 1183
Author: N. J. Jamadar
Bench: N. J. Jamadar
CRIREVN419-19.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
REVISION APPLICATION NO. 419 OF 2019
1. Yusuf Siddique Sayed
Age : 44 years, Occu. : Business,
R/o: 605, C-Wing, Hill View CHS,
S.M.D. Road, Antop Hill,
Mumbai - 400 037
2. Asif Yusuf Sayed
Age : 19 years, Occu. Student,
R/o. 605, C-Wing, Hill View CHS,
S.M.D. Road, Antop Hill,
Mumbai - 400 037
3. Saleem Siddique Sayed
Age : 34 years, Occ: Service
S.M.D. Road, Antop Hill,
Mumbai - 400 037 ...Applicants
Versus
The State of Maharashtra ...Respondent
Mr. Faiz Merchant, Mr. Mahesh Ahire, Mr. Faisal F. Shaikh,
i/b Rizwan Merchant & Associates, for the Applicant.
Mr. Vinod Chate, APP for the State.
Mr. Ashok M. Salve, P.I., Antop Hill Police Station, present.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 8th NOVEMBER, 2019.
PRONOUNCED ON: 15th NOVEMBER, 2019.
JUDGMENT:-
1. With the consent of the learned Counsels for the parties, heard fnally at the admission stage.
2. The legality, propriety and correctness of an order dated 8th August, 2019, passed by the learned Additional Sessions 1/14 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:44 ::: CRIREVN419-19.DOC Judge, Sessions Court, Greater Bombay, on an application for discharge (Exhibit 11) under Section 227 of the Code of Criminal Procedure ("the Code", for short) in Sessions Case No.862 of 2019 along with Sessions Case No.518 of 2018, CNR No.MHCC02-009050-2019, whereby the said application was partly allowed and prayer of the applicants herein for discharge came to be rejected, is assailed in this revision application.
3. Shorn of unnecessary details, the background facts can be stated as under:
(a) Mehnaz (hereinafter referred to as 'the deceased') was a 15 year old girl. Her mother had expired when she was about four months old. The deceased was brought up by the applicant no.1 - Yusuf, her maternal uncle. Applicant no.1 -
Asif is the son of applicant no.1. Applicant no.3 - Salim is the brother of applicant no.1.
(b) Applicant nos.1 and 3 reside with their respective spouses, namely, Sabira Bano and Soliya along with their children and parents, Siddique Sayed and Farida Siddique Sayed (the co-applicant nos.4 and 5 before the learned Sessions Judge, whose application for discharge came to be allowed). The deceased was residing with them.
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(c) On 4th May, 2018, at about 1.30 p.m., on hearing commotion emanating from the house of the applicants, the neighbours rushed in. The deceased was lying in an unconscious state. The deceased's grand-mother Farida, Sabira Bano, the wife of applicant no.1, Soliya, the wife of applicant no.3 and Umaira, a minor daughter of applicant no.1 were then present in the house. They were attempting to resuscitate the deceased. On enquiry, the inmates of the house informed that the deceased fell in the bathroom and became unconscious. The deceased was shifted to Sion Hospital. She was pronounced dead. On examination by the Medical Offcer, it was noticed that there was a ligature mark on the neck of the deceased.
4. Initially ADR was registered. Inquest was conducted. It transpired that the inmates had made an incorrect statement about the cause of death. Hence, the crime was registered at CR No.181 of 2018. During the course of investigation, the statements of the neighbours, the father of the deceased Mr. Mohammed Hussain Umar Hussain Qureshi, the friends and acquaintances of the deceased were recorded. Initially charge- sheet was lodged against Soliya, Sabira Bano and juvenile in conficted with law. Later on, after fnding the complicity of the applicants and the grandparents of the deceased, a 3/14 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:44 ::: CRIREVN419-19.DOC supplementary charge-sheet came to be lodged against the applicants for the offences punishable under Sections 302, 120B and 201 of the Indian Penal Code.
5. The gravamen of indictment against the accused is that the accused used to ill-treat and harass the deceased and in- furtherance of criminal conspiracy the deceased was done to death by strangulation and the evidence was sought to be destroyed.
6. The applicants and the grand-parents of the deceased, Siddique and Farida, preferred an application under Section 227 of the Code asserting, inter alia, that there was no material to prosecute them for the alleged offence of murder, criminal conspiracy and destruction of evidence. The applicants and Siddique Sayed (applicant no.4), by the own showing of the prosecution, were not present at the time of the alleged occurrence. The applicant no.5 Farida is paralyzed and unable to move. The material on record does not support the charge of criminal conspiracy.
7. The learned Sessions Judge considered the averments in the application and the resistance put-forth by the learned prosecutor. After evaluating the material on record the learned Sessions Judge was persuaded to partly allow the application 4/14 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:44 ::: CRIREVN419-19.DOC holding, inter alia, that there was no suffcient ground for proceeding against the applicant no.4 Siddique and applicant no.5 Farida. However, in the opinion of the learned Sessions Judge, there was suffcient material to frame charge against the applicants herein.
8. Being aggrieved by and dissatisfed with the rejection of the application for discharge, the applicants have invoked the revisional jurisdiction of this Court.
9. I have heard Mr. Merchant, the learned Counsel for the applicants and Mr. Chate, the learned APP for the State. Perused the material on record including the initial charge-sheet and supplementary charge-sheet and the documents annexed thereto.
10. Mr. Merchant, the learned Counsel for the applicants urged with a degree of vehemence that the learned Sessions Judge has not at all considered the material on record which, by no stretch of imagination, justifes an inference that there is suffcient material to frame charge against the applicants for the offences punishable under Sections 302, 120B and 201 of IPC. Though the learned Sessions Judge has specifcally observed that at the time of the alleged occurrence, apart from the deceased, only Sabira Bano, Soliya and juvenile in confict with 5/14 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:44 ::: CRIREVN419-19.DOC law and Farida were present in the house, yet the learned Sessions Judge had not adverted to the non-availability of any material which would, prima facie, indicate that there was a criminal conspiracy as alleged by the prosecution. The observations of the learned Sessions Judge that there was material to indicate that the inmates of the house, apart from the applicant nos.4 and 5, were not giving good treatment to the deceased and they were ill-treating her and, thus, there was suffcient material to frame charge against the applicants are neither borne out by the record nor satisfy the test which is required to be adopted while arriving at the conclusion that there is suffcient material to frame charge against the accused. A grievance was made by the learned Counsel for the applicants that apart from the aforesaid observations, in paragraph 18 of the impugned order, no reason is ascribed to reject the application for discharge.
11. Taking me through the statements of the witnesses, including those of Moujil Afzal Ansari, Samira Abrar Ansari, Safa Abrar Ansari and Md. Afzal Ansari recorded under Section 164 of the Code, an endeavour was made by the learned Counsel for the applicants to demonstrate that the charge against the applicants is wholly groundless. 6/14 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:44 :::
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12. In contrast to this, the learned APP would urge that there is suffcient material to warrant the prosecution of the applicants. The material on record, especially CDR, reveals that applicant no.1 had telephonic conversion with the accused Sabira Bano, at the relevant time. Though, the applicants were not personally present at the time of occurrence, yet, in view of the charge of criminal conspiracy, the prosecution cannot be thrown overboard at this stage, urged the learned APP. It was further submitted that having regard to limited nature of the revisional jurisdiction, it would be impermissible to weigh the veracity of the material on record, as if the guilt of the applicants is being adjudicated at the trial.
13. To lend support to this submission, the learned APP placed reliance upon the judgment of the Supreme Court in the case of Asim Shariff vs. National Investigation Agency 1, wherein, in the backdrop of the material in the nature of the cell-phone conversion prior to and after the occurrence, it was observed that the existence, truth and veracity of the conspiracy is required to be examined during the course of trial. Reliance was also placed on the judgment of the Supreme Court in the case of Sandeep Sunil Kumar Loharia vs. Sumeet Ganpatrao 1 (2019) 7 Supreme Court Cases 148.
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CRIREVN419-19.DOC Bachewar & anr.,2 wherein the Supreme Court had set aside the order passed by this Court of discharge as it was noted that this Court had undertaken the exercise of appreciation of evidence at the stage of consideration of the application for discharge.
14. At the outset, it is imperative to note that though the impugned order makes copious reference to the statements of the witnesses recorded during the course of investigation, the reasons which weighed with the Court, in partly allowing the application, are to be found in paragraph 18 of the impugned order, which reads as under:
"18. After perusal of the statement, it shows that except grandparents of deceased i.e., applicant no.4 Siddique Sayed and applicant no.5 Farida Siddique Sayed, others were not giving good treatment to deceased and they ill-treating so, I fnd that there is suffcient material to frame charge against the applicants Yusuf Siddique Sayed, Asif Yusuf Sayed and Saleem Siddique Sayed so, I fnd that there is no suffcient ground for proceedings against grandparents i.e., applicant no.4 Siddique Sayed and applicant no.5 Farida Siddique Sayed therefore, I fnd that application is to be partly allowed."
15. The aforesaid observations indicate that what prevailed upon the Court was the fact that the statements of the witnesses revealed that, apart from the grant-parents who were ordered to be discharged, the other family members including the applicants were ill-treating the deceased and, thus, the court found that there was suffcient material to frame the 2 2018 ALL MR (Cri) 4470 (S.C.) 8/14 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:44 ::: CRIREVN419-19.DOC charge against the applicants. Indubitably, the Court has recorded, in no uncertain terms, that at the time of occurrence, only female members were present in the house and, conversely, the applicants were not present thereat. Undoubtedly, the charge is of criminal conspiracy. The conspiracies are often hatched in secrecy. The crucial question, which, however, warranted consideration by the Court was whether there was prima facie material to show that the applicants were the confederates in the alleged conspiracy. Was the material suffcient to draw an inference that there was ground for presuming that the applicants were guilty of the offences alleged?
16. From the observations in paragraph 18, extracted above, it becomes abundantly clear that the Court had not posed unto itself the pertinent questions and did not examine the material on record on the touchstone of the provisions contained in Section 227 and 228 of the Code.
17. A proftable reference, in this context, can be made to the judgment of the Supreme Court in the case of Union of India vs. Prafulla Kumar Samal & another3, wherein the scope of Section 227 of the Code was enunciated in the following words: 3
(1979) 3 Supreme Court Cases 4.9/14 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:44 :::
CRIREVN419-19.DOC "7. Section 227 of the Code runs thus:
If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not suffcient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
The words 'not suffcient ground for proceeding against the accused' clearly show that the Judge is not a mere post offce to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to fnd out whether or not there is suffcient ground for proceeding against the accused. The suffciency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."
18. The pronouncement of the Supreme Court in the case of Sajjan Kumar vs. Central Bureau of Investigation4 after consideration of the previous pronouncements, culls out the principles which emerged as regards the scope of Section 227 and Section 228 of the Code. They read as under:
"27. 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 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of fnding 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 4 (2010) 9 Supreme Court Cases 368.10/14 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:44 :::
CRIREVN419-19.DOC been properly explained, the court will be fully justifed in framing a charge and proceeding with the trial.
(iii) The Court cannot act merely as a Post Offce 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 infrmities 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 satisfed 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 fnd out if the facts emerging therefrom taken at their face value disclose 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 stage, he is not to see whether the trial will end in conviction or acquittal."
19. By a catena of decisions, the legal position is crystallized to the effect that while considering an application for discharge or addressing the question of framing charge, the Sessions Court is within its right to sift and weigh the material placed before it. However, the scope of enquiry is to fnd out whether or not a prima facie case has been made out against the accused. The enquiry is not for the purpose of evaluating the material to 11/14 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:44 ::: CRIREVN419-19.DOC judge as to whether it would entail conviction. In the event, the material on record justifes grave suspicion, then the court would be justifed in framing the charge. However, where the matter remains in the realm of suspicion only (in contradistinction to a grave suspicion) the Court may be justifed in discharging the accused.
20. In the backdrop of the aforesaid legal position, reverting to the facts of the case, the material on record, in the form of the statements of the witnesses, including the father of the deceased Mohammed Hussain Umar Hussain Qureshi, indicates that the deceased used to make a grievance that her maternal aunt Sabira Bano (to whom, she called Mummy) was not treating her well. She was deprived of the things which she liked. She was discriminated against, in comparison to the juvenile in confict with law. False accusations were levelled against her. The investigating agency, in its report, was however not persuaded to place implicit reliance on the veracity of the claim of the father of the deceased that few days prior to the occurrence the deceased had confded in him about the harassment and had also made an accusation that applicant no.2 - Aasif used to sexually exploit her.
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21. The learned Sessions Judge, in the backdrop of aforesaid material, qua the applicants, was persuaded to hold that there was material to indicate that the deceased was ill-treated. The learned Sessions Judge, however, did not advert to the question as to whether, in the face of the indisputable position that the applicants were no present at the time of the alleged occurrence, there was suffcient material to implicate the applicants for the commission of the alleged murder by roping in them on the basis of the criminal conspiracy, in furtherance of which the offences of murder and destruction of evidence were allegedly committed.
22. As the learned Sessions Judge has not examined the said aspect, it would not be appropriate for this Court to evaluate the material on record, as a Court of frst instance, and arrive at a defnitive conclusion. In my considered opinion, it would be in the ftness of things to direct the learned Sessions Judge to consider the application for discharge afresh, in the backdrop of the scope of the provisions contained in Section 227 and Section 228 of the Code, and decide the same after providing an opportunity of hearing to the applicants and the prosecution. The application, therefore, deserves to be partly allowed.
23. Hence the following order:
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(i) The application stands partly allowed.
(ii) The impugned order of rejection of the application for discharge of the applicants stands quashed and set aside. The application for discharge (Exhibit 21) stands restored to the fle of the learned Sessions Judge.
(iii) The learned Sessions Judge is directed to hear and decide afresh the application after providing an opportunity of hearing to the applicants and the prosecution.
(iv) It is, however, made clear that the observations made hereinabove are only for the purpose of determining the instant application and they may not be construed as an expression of opinion on merits of the matter and the learned Sessions Judge shall not be infuenced by any of the observations made hereinabove, save and except on the scope of the provisions contained in Section 227 and Section 228 of the Code.
[N. J. JAMADAR, J.] 14/14 ::: Uploaded on - 16/11/2019 ::: Downloaded on - 16/11/2019 23:25:44 :::