ORDER :

Leave to amend.

1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State

2. By way of present application, applicant has requested to quash and set aside the judgment and order dated 18.07.2022 passed below Ex.16 by learned 11th Additional Sessions Judge, Dhoraji at Rajkot in Sessions Case No. 23 of 2019.

3. Heard learned advocates for the respective parties.

4. It was submitted by learned advocate for the applicant that the charge sheet has been filed on 07.05.2019 against the present applicant and looking to the charge sheet papers, there are total 49 witnesses and out of 49 witnesses, none of the witnesses attributed the role of the present applicant. That, the FIR came to be registered against the unknown person and FIR came to be registered after the period of one day after the incident took place and FIR is filed against the unknown person. That looking to the charge sheet papers, no weapon was recovered or discovered by the present applicant, no clothes were seized by the investigation officer, and looking to the charge sheet paper, there is no arrest panchnama against the present applicant. Even looking to the FIR, no scorpio car is shown that is also not seized by the investigation officer and there is no arrest panchnama as well as the Scorpio car is also not belonged to the present applicant. That, there is no eye witness in the present case and there is no extra judicial confession and there is no role shown against the present applicant.

5. It was further submitted by learned advocate for the applicant that Investigating Officer has only implicated the present applicant on the ground of call details wherein the present applicant was in touch with the accused no. 2 who is son of maternal uncle of the present applicant and the Investigating Officer has not seized any mobile phone or a sim card of the present applicant. Even though, looking to the charge sheet papers, there is no last seen together theory. Ultimately, it was submitted by learned advocate for the applicant to allow present application.

6. On the other side, learned APP for the respondent-State has strongly objected the submissions made by learned advocate for the applicant and submitted that the sufficient material is available against the present applicant and the call details shows that the applicant was in constant connect with other two co accused persons. That the statement of the witness Raghubhai recorded by police on 26.10.2017 shows that the applicant and other co accused had confessed about committing the murder. That the present case is a case of conspiracy, in which the applicant is am main conspirator. That, the conduct of the present applicant, prior to and subsequent to the offence raises grave suspicion against him and it is settled law that the charge can be framed on grave suspicion. Ultimately, it was submitted by learned APP for the respondent State to dismiss present application.

7. Having heard learned advocates for the respective parties as well as considering the averments made in the present application, it appears that after filing of the charge sheet, the applicant has approached the learned trial court with discharge application which was rejected by the learned trial court. Before concluding the present application, first of all we may consider the legal provisions relating to discharge application.

7.1. In case of Saranya vs. Bharathi and Another, (2021) 8 SCC 583, the Hon’ble Supreme Court, in paragraph nos.10 and 11, observed as under:

“10. Before considering the rival submissions of the parties, few decisions of this Court on the principles which the High Court must keep in mind while exercising the jurisdiction under Section 482 C.P.C. at the stage of framing of the charge while considering the discharge application are required to be referred to and considered.

11. In the case of Deepak (supra), to which one of us (Dr. Justice D.Y. Chandrachud) is the author, a