While taking potshots at the discharge of the accused by the Bombay High Court, the Apex Court in a most pertinent, pragmatic, peculiar and progressive judgment titled Captain Manjit Singh Virdi (Retd) vs Hussain Mohammed Shattaf & Ors in Criminal Appeal No. 1399 of 2023 and cited in 2023 LiveLaw (SC) 462 that was pronounced on May 18, 2023 in the exercise of its criminal appellate jurisdiction set aside an order that was passed by the Bombay High Court which had discharged two murder accused persons on the ground that the High Court did not refer to the evidence, in its entirety, collected by Investigating Agency produced along with charge-sheet. It must be laid bare that the Division Bench of Hon’ble Mr Justice Abhay S Oka and Hon’ble Mr Justice Rajesh Bindal observed explicitly without mincing any words that:
If the facts of the case are examined in the light of law laid down by this Court on the subject, it is evident that the High Court has not even referred to the evidence collected by Investigating Agency produced alongwith chargesheet in its entirety. Rather there is selective reference to the statements of some of the persons recorded during investigation. It shows that there was total non-application of mind. The High Court had exercised the jurisdiction in a manner which is not vested in it to scuttle the trial of a heinous crime. Very rightly so!

At the very outset, this learned, laudable, landmark and latest judgment authored by the Single Judge Bench authored by Hon’ble Mr Justice Rajesh Bindal for a Division Bench of the Apex Court comprising of Hon’ble Mr Justice Abhay S Oka and himself sets the ball in motion by first and foremost putting forth in para 1 that:
The order dated 17.07.2013 passed by the High Court of Judicature at Bombay in Revision Application No. 135 of 2012 has been challenged by the appellant. By the aforesaid order, the High Court has set aside the order dated 21.02.2012 passed by the court below vide which application filed by the Respondent nos.1 and 2 for discharge, was dismissed.

To put things in perspective, the Division Bench envisages in para 2 that:
The dispute arises out of an FIR No. 46 of 2006 registered at Lonawala City Police Station on 14.05.2006 for murder of Manmohan Singh Sukhdev Singh Virdi, a resident of Virdi’s Bungalow, Thombarewadi, Lonawala. His body was found lying in a pool of blood in his bedroom.

As we see, the Bench observes in para 6 that:
Though the order passed by the High Court as such has not been challenged by the State. The learned counsel for the State having no explanation therefor sought to argue that the impugned order cannot be legally sustained as at the stage of consideration of application for discharge, appreciation of the evidence as such was not possible as the same could be only after the evidence is recorded in the Court after trial. At the stage of framing of charge only prima facie case is to be seen.

As it turned out, the Division Bench points out in para 6 that:
Though the order passed by the High Court as such has not been challenged by the State. The learned counsel for the State having no explanation therefor sought to argue that the impugned order cannot be legally sustained as at the stage of consideration of application for discharge, appreciation of the evidence as such was not possible as the same could be only after the evidence is recorded in the Court after trial. At the stage of framing of charge only prima facie case is to be seen.

Further, the Division Bench then also mentions in para 8 that:
After registration of FIR, investigation was conducted and statements of number of persons were recorded under Section 161 and 164 of Cr.P.C. Even a Psychological Evaluation including Psychological Profiling, Polygraph Testing and Brain Electrical Oscillations Signature Profiling (BEOS) of Respondent No. 1 was conducted on 31.5.2007 and similar tests were conducted on the other four persons viz. Baliram Chidhu Khade, Mohan Vijayamma Shridharan, Ashok Gajraj Chaudhary, Mehboob Dastagi Sheikh who were close aides of respondent no.1.

To recapitulate, the Division Bench recalls in para 9 observing that:
As it was a blind murder, the crime was investigated and chargesheet dated 09.12.2009 was filed against Hussain Mohammed Shattaf and Waheeda Hussain Shattaf (Respondent nos. 1 and 2) and Zaanish Khan stating therein that while Respondent no.1 was staying in Dubai for the purpose of his business, his wife respondent no.2 came in contact with the deceased and developed friendship. They started meeting each other frequently. The friendship turned into physical relationship. When the Respondent No.1 returned from Dubai, he came to know about the same. To take revenge, he in connivance with respondent no.2 and one Zaanish Khan conspired to kill the deceased through unknown assailants.

Further, the Division Bench specifies in para 10 that:
As the case was triable by Sessions, the matter was committed by the Magistrate to the Sessions Court, Pune. Immediately thereafter Respondent Nos. 1 and 2 filed revision application for discharge. The same was dismissed by the Trial Court vide Order dated 21.02.2012. The High Court vide impugned order had set aside the order passed by the Trial Court and discharged Respondent Nos. 1 and 2. The aforesaid order is under challenge before this Court.

Do note, the Bench notes in para 11 that:
The law on issue as to what is to be considered at the time of discharge of an accused is well settled. It is a case in which the Trial Court had not yet framed the charges. Immediately after filing of chargesheet, application for discharge was filed. The settled proposition of law is that at the stage of hearing on the charges entire evidence produced by the prosecution is to be believed. In case no offence is made out then only an accused can be discharged. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reasons to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the Court.

Be it noted, the Division Bench notes in para 14 that:
A perusal of the impugned order passed by the High Court shows that some of the material collected by the Investigating Agency filed alongwith chargesheet has been referred to in a sketchy manner. The statements of Suresh Sherbahadur Thapa, Collector Thakur Singh, Ramesh Dhakol, Manjit Singh, Dr. Ajit Singh and Sajida Begum have been referred to. However, from a perusal of the record, it is evident that their statements have not be noticed either in their entirety or only part of the statements recorded on a particular day has been noticed and the statements recorded either before or after, have not been referred to. Besides that, the Investigating Agency had recorded the statements of Hiraman Dyaneshwar Chaudhari, Ramesh Murlidhar, Mohan Vs., Ashok Gunaji Thosar, Mehboob Dastagi Sheikh, and Rakma Shivram Waghmare, which have not been referred to and considered by the High Court while discharging Respondent Nos. 1 and 2. The fact cannot lost sight of that it was a case of blind murder. The circumstances only could have nailed the accused through the material collected by the Investigating Agency.

It cannot be glossed over that the Division Bench points out in para 18 that, The High Court vide impugned order had summed up the entire evidence in two paras without even referring to the Psychological Evaluation including Psychological Profiling, Polygraph Testing and Brain Electrical Oscillations Signature Profiling (BEOS) tests of the accused and the other aides of respondent no.1 and ordered discharge of Respondent Nos.1 and 2.

Most significantly, the Division Bench minces absolutely no words to underscore in para 19 stating that:
Though Psychological Evaluation test report only may not be sufficient to convict an accused but certainly a material piece of evidence. Despite this material on record, the High Court could not have opined that the case was not made out even for framing of charge, for which only prima facie case is to be seen.

Equally significant is what is then enunciated in para 20 that:
If the facts of the case are examined in the light of law laid down by this Court on the subject, it is evident that the High Court has not even referred to the evidence collected by Investigating Agency produced alongwith chargesheet in its entirety. Rather there is selective reference to the statements of some of the persons recorded during investigation. It shows that there was total non-application of mind. The High Court had exercised the jurisdiction in a manner which is not vested in it to scuttle the trial of a heinous crime.

As a corollary, the Bench then concludes by holding in para 21 that:
For the reasons mentioned above, the appeal is allowed and the impugned order of the High Court is set aside.

In short, the key takeaway from this notable judgment by the Apex Court while overturning the Bombay High Court judgment is that accused can be discharged only if no case is made out even after presuming entire prosecution evidence to be true. It thus merits no reiteration that all the courts must pay heed to what the Apex Court has held in this leading case. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.