IMPORTANT POINT
Degree of satisfaction of the Court as to prima facie case is much higher than while taking cognizance.

JUDGMENT :

Chandramauli Kr. Prasad, J.:-

Before we proceed to consider the case, we must remind ourselves the maxim “judex damnatur cum nocens absolvitur” which means that a Judge is condemned when guilty person escapes punishment. But, at the same time, we cannot forget that credibility of the justice delivery system comes under severe strain when a person is put on trial only for acquittal.

2. By Order dated 8th December, 2011, Veja Prabhat Bhutia was added as petitioner no. 2. He was an accused in the case and his grievance was that due to pendency of the present petition filed by petitioner Babubhai Bhimabhai Bokhiria, his trial has been stayed and he is unnecessarily rotting in jail. This judgment shall, therefore, will have no bearing on him and the expression “petitioner/appellant” in this judgment would mean petitioner no.1/appellant no.1 Babubhai Bhimabhai Bokhiria.

3. Shorn of unnecessary details, facts giving rise to the present petition are that one Mulubhai Gigabhai Modhvadiya was murdered on 16th of November, 2005 and for that a case was registered at Kalambaug Police Station, Porbandar, under Section 302, 201, 34, 120B, 465, 468 and 471 of the Indian Penal Code and Section 25 of the Arms Act. Police after usual investigation submitted the charge-sheet and the case was ultimately committed for trial to the Court of Session. When the trial was so pending, the wife of the deceased filed an application for further investigation under Section 173(8) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’), alleging petitioner’s complicity in the crime, inter alia, stating that the petitioner was a business rival of the deceased whereas one of the main accused is his business partner with whom he conspired to kill the deceased. It was alleged that petitioner was a Minister earlier from the party which was in power in the State and therefore, he was let off during investigation. It was also pointed out that a letter written almost a year ago by the deceased was recovered from his purse in which it was stated that in the event of his death, the petitioner shall be held responsible as he intended to kill him. In reply to the said application, the Investigating Officer filed his affidavit stating therein that during the course of investigation, nobody supported the plea of the wife that the deceased was apprehending any threat from the petitioner or for that matter, any other person. In another affidavit filed by the Investigating Officer, a firm stand was taken that no material had surfaced to show the complicity of the petitioner in the offence. It was pointed out by the Investigating Officer that the deceased filed an application for arms licence and in that application also he did not disclose any threat or apprehension to his life from any person, including the petitioner herein. Notwithstanding the aforesaid affidavit of the

Investigating Officer, the Sessions Judge directed for further investigation. In the light of the aforesaid, the investigating agency submitted further report stating therein that the call records of the period immediately preceding the death of the deceased do not show any nexus between him and the petitioner and the deceased did not have any threat from the petitioner. In this way, the police did not find the complicity of the petitioner in the crime.

4. During the course of trial of other accused, 134 witnesses were examined and at that stage, an application was filed by the son of the deceased praying for arraigning the petitioner as an accused in exercise of power under Section 319 of the Code. Said application was allowed by the learned Sessions Judge on its finding that prima facie strong evidence exists to summon the petitioner as the letter recovered from the deceased incriminated him. It was also observed that the veracity of the letter recovered from the deceased was established by two witnesses who confirmed that the letter was in the handwriting of the deceased.

5. A