IMPORTANT POINT
Discharge from criminal case – If on the basis of materials on record, court could come to conclusion that commission of offence is a probable consequence, case for framing of charge exists.

ORDER (ORAL)

By way of present application, applicant has requested to quash and set aside the order dated 22.07.2022 passed by the learned Special Judge, (ACB), District: Mahesana passed in the application preferred below Exhibit 40 under Section 227 of the Criminal Procedure Code, 1973 seeking discharge of the present applicant from the Criminal Case being Special ACB Case No. 9 of 2017 pending before the Court of Learned Special Judge, (ACB), Mahesana and requested to discharge the present applicant from the Criminal Case being Special (ACB) Case No. 9 of 2017 pending before the Court of Learned Special Judge (ACB), Mahesana.

2. Brief facts of the present case are as under:—

2.1 That, on 01.06 2017 the alleged incident is said to have taken place, wherein, as per the version of the original informant namely Mahendra Narayanbhai Pate whose son (deceased) namely Ketanbhait Mahendrabhi Patel was allegedly kidnapped by one Bharatbhai Manilal Brahmbhatt and five other persons and the said incident was seen by one Patel Arvindbhai Ranchhoddas. It is further alleged that Ketanbhai Mahendrabhai Patel was taken to the store and was beaten and he was handed over to police station, That, after 12 days the FIR came to be registered on 13.06.2017 with Mahesana Taluka Police Station being CR. No. I — 118 of 2017 for the offences under Sections 302, 365, 323, 364, 397, 342, 116, 330, 331, 143, 147, 149, 120 (b) of the Indian Penal Code, 1860 and under Sections 7 and 12 of the Prevention of Corruption Act, 1947. That, the son of the original informant had died in the Police custody. The Police with a view to save their skin, conducted investigation in a biased manner and the applicant came to be arraigned as accused by way of supplementary charge sheet forwarded to the Sessions Court on 18.04.2018. Whereas, the charge sheet was already filed after completion of investigation and was forwarded to the Sessions Court at: Mahesana on 07.09.2017, wherein, applicant was not shown as accused. The applicant therefore, preferred the discharge application below exhibit 40 in Special (ACB) Case No. 9 of 2017 before the Learned Special Judge (ACB), Mahesana seeking discharge from the alleged offences on 12.06.2019. The said application was preferred and the same came to be decided on 22.07.2022 and the Learned (ACB) Judge was pleased to pass the order, whereby, the said application came to be dismissed and that is how the applicant has preferred present application.

3. Heard learned advocate for the applicant.

4. It was submitted by learned advocate for the applicant that the applicant was neither named in the FIR nor was he involved in the alleged offences at all. He cannot be attributed any intention or even knowledge with regard to the alleged act which may constitute the offence under Section 302 of Indian Penal Code, 1860. That, the applicant was granted anticipatory bail by this Hon’ble Court by allowing the said application being Criminal Misc. Application No. 4168 of 2018 dated 27.02.2018. That, the learned Judge below has committed a serious error by merely referring to the allegation made against the accused Nos. 1 and 2 and observing that the deceased was beaten by the accused persons including the applicant and has merely referred to the postmortem note of the postmortem conducted twice and making a general reference with regard to the injuries on the body of the deceased and observing that it is not determined as to because of which injury the death was caused and that the same cannot be decided at the stage of framing of charge. The Learned Judge has therefore committed an error by rejecting the case of the applicant without considering the material on record and without assigning reasons as to how and what contents of the material on record makes out sufficient ground for proceeding against the applicant. That, even when the concerned Court frames the charge, at that stage the Court has to consider the material and while doing so t