ORDER OF DISCHARGE

Source: The Hitavada      Date: 03 Sep 2018 10:49:18


IN THE judgement of the case – Sandeep Sunil Kumar Loharia v. Sumeet Ganpatrao Bachewar and Another, delivered on August 23, 2018, a 3-judge Bench consisting of Justice Ranjan Gogoi, Justice Navin Sinha and Justice K. M. Joseph, at the Supreme Court, have held that it cannot be said yet, that there are two possible views of the matter, hence the observations of the apex court in paragraph 16 of the decision of the case – Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra- (2008) 10 SCC 394 will, therefore, do not assist the accused.

According to the court, what has happened in the present case is that the statements recorded in the course of investigation had been weighed, analyzed and appreciated, though this evidence is yet to be tested by cross-examination and the veracity of either of the two versions is yet to be established, hence, it cannot be stated that there are two possible views of the matter.The trial court had refused to discharge the accused persons, who were facing a charge under section 302 of the Indian Penal Code. The HC while exercising its revisional power overturned the verdict and thought it proper to order for discharge. Aggrieved thereby, these appeals (arising out of special leave petition (Cr.) have been filed by the son of the deceased.

The court heard three senior counsels, Siddarth Luthra for the appellant-complainant, Salman Khurshid for respondent-accused and Indira Jaising for respondent-accused Bhupesh Prakashchand Gupta and Advocate Nishant R. Katneshwarkar. Who appeared for the appellant-State in one of the criminal appeals. In the course of the investigation, particularly, on the basis of the statements recorded under Section 161 of the Code of Criminal Procedure, two sets of evidence were ‘received’ by the prosecution.

The first was the statement made by the deceased to the person (Tejas Sharad Janjurne} who drove the auto-rickshaw and took the deceased to the hospital and an employee of the deceased, one Satyendra Kumar Hanumanprasad Pandey who also accompanied the deceased to the hospital.

In the statement made before the aforesaid two persons by the deceased the names of accused – Suresh Bijlani and Anurag Shivmohan Garg were mentioned. According to the son, that is appellant he had arrived at the hospital at about 8.40 am and the deceased (his father) had stated before him that he was attacked and injured, apart from Suresh Bijlani and Anurag Garg, by three other persons namely Sumeet Bachchewar, S. P. Agarwal and Bhupesh Prakashchand Gupta.

The HC has observed in the impugned order that the statement made by the appellant appears to be calculated and does not indicate trustworthiness in comparison to the statements made by the person who took him in the auto rickshaw and by the employee-Satyendra. Appreciation of evidence is an exercise that the HC, in the apex court’s considered view, could not have undertaken at this stage of consideration of the application for discharge. But this is what precisely the HC appears to have done.

Senior counsel, Indira Jaising in support of her contentions relied upon the following passage from an earlier Supreme Court decision in the case –Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra-(2008) 10 SCC 394: 16. “It is trite that the words “not sufficient ground for proceeding against the accused” appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.”

However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. “The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable 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 produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused.

“At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible.” While there can be no dispute on the proposition that has been laid by this court in paragraph 16 of Yogesh alias Sachin Jagdish Joshi, what has happened in the present case is that the statements recorded in the course of investigation had been weighed, analyzed and appreciated.

In a situation where the said evidence is yet to be tested by cross-examination and the veracity of either of the two versions is yet to be established, it cannot be said that there are two possible views of the matter. The observations of this court in Yogesh alias Sachin Jagdish Joshi will, therefore, not assist the accused.

In view of this, the court held that the power exercised by the Bombay High Court to order discharge was “premature”. Consequently, the Supreme Court has been of the view that the order of the HC ought to be set aside, which it did and allowed the appeals.The Supreme Court made it clear that its interference with the order of the HC is in no way any expression of opinion on the merits of the rival contentions which will naturally have to be considered at the trial. The apex court allowed the appeals in terms of the signed order. Pending applications, if any, were disposed of.