CAPTAIN MANJIT SINGH VIRDI (RETD.) versus HUSSAIN MOHAMMED SHATTAF & ORS. on 18 May 2023

1. The order dated 17.07.2013 passed by the High Court ofJudicature at Bombay in Revision Application No. 135 of 2012 has beenchallenged by the appellant. By the aforesaid order, the High Court hasset aside the order dated 21.02.2012 passed by the court below videwhich application filed by the Respondent nos.1 and 2 for discharge,was dismissed.

2. The dispute arises out of an FIR No. 46 of 2006 registered atLonawala City Police Station on 14.05.2006 for murder of ManmohanSingh Sukhdev Singh Virdi, a resident of Virdi’s Bungalow, Thombarewadi,Lonawala. His body was found lying in a pool of blood in his bedroom.

3. Learned counsel appearing for the Appellant submitted that abare perusal of the impugned order passed by the High Court showsthat a mini trial has been conducted merely by referring to some of thestatements recorded by the police during investigation, which wereforming part of the chargesheet. This was beyond the scope of jurisdictionof the Court at the time of consideration of application for discharge.The Court had failed to consider the fact that there was PsychologicalEvaluation including Psychological Evaluation including PsychologicalProfiling, Polygraph Testing and Brain Electrical Oscillations SignatureProfiling (BEOS) conducted on Respondent Nos. 1 and four other aides A

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Aof respondent no.1, which lead towards the accusation of RespondentNos. 1 and 2 in the crime.

4. In support of the arguments, learned counsel for the appellanthas placed reliance upon the judgment of this Court in the case of Stateof Maharashtra and Anr. v. Dr. Maroti S/o.Kashinath Pimpalkar[1].B

5. On the other hand, learned counsel for Respondent Nos. 1 and2 submitted that it is a case of blind murder, hence, there was no eye-witness. There was no enmity of Respondent Nos. 1 and 2 with thedeceased. They were happily living in the neighbourhood. A false storywas built up by the prosecution for which there is no material to support.CHe further submitted that Trial Court had failed to exercise jurisdictionvested in it to discharge the respondent no. 1 and 2. They have beenfalsely implicated in the case. It would be abuse of the process of theCourt in case they are made to face trial. The relevant material collectedby the prosecution was considered by the High Court.

D6. Though the order passed by the High Court as such has notbeen challenged by the State. The learned counsel for the State havingno explanation therefor sought to argue that the impugned order cannotbe legally sustained as at the stage of consideration of application fordischarge, appreciation of the evidence as such was not possible as thesame could be only after the evidence is recorded in the Court afterEtrial. At the stage of framing of charge only prima facie case is to beseen.

7. Heard learned counsel for the parties and perused the recordand relevant papers.

F8. After registration of FIR, investigation was conducted andstatements of number of persons were recorded under Section 161 and164 of Cr.P.C. Even a Psychological Evaluation including PsychologicalProfiling, Polygraph Testing and Brain Electrical Oscillations SignatureProfiling (BEOS) of Respondent No. 1 was conducted on 31.5.2007and similar tests were conducted on the other four persons viz. BaliramGChidhu Khade, Mohan Vijayamma Shridharan, Ashok Gajraj Chaudhary,Mehboob Dastagi Sheikh who were close aides of respondent no.1.

9. As it was a blind murder, the crime was investigated andchargesheet dated 09.12.2009 was filed against Hussain Mohammed H1 (2023) 4 SCC 298

Shattaf and Waheeda Hussain Shattaf (Respondent nos. 1 and 2) andZaanish Khan stating therein that while Respondent no.1 was staying inDubai for the purpose of his business, his wife respondent no.2 came incontact with the deceased and developed friendship. They startedmeeting each other frequently. The friendship turned into physicalrelationship. When the Respondent No.1 returned from Dubai, he cameto know about the same. To take revenge, he in connivance withrespondent no.2 and one Zaanish Khan conspired to kill the deceasedthrough unknown assailants.

10. As the case was triable by Sessions, the matter was committedby the Magistrate to the Sessions Court, Pune. Immediately thereafterRespondent Nos. 1 and 2 filed revision application for discharge. Thesame was dismissed by the Trial Court vide Order dated 21.02.2012.The High Court vide impugned order had set aside the order passed bythe Trial Court and discharged Respondent Nos. 1 and 2. The aforesaidorder is under challenge before this Court.

11. The law on issue as to what is to be considered at the time ofdischarge of an accused is well settled. It is a case in which the TrialCourt had not yet framed the charges. Immediately after filing ofchargesheet, application for discharge was filed. The settled propositionof law is that at the stage of hearing on the charges entire evidenceproduced by the prosecution is to be believed. In case no offence ismade out then only an accused can be discharged. Truthfulness,sufficiency and acceptability of the material produced can be done onlyat the stage of trial. At the stage of charge, the Court has to satisfy thata prima facie case is made out against the accused persons. Interferenceof the Court at that stage is required only if there is strong reasons tohold that in case the trial is allowed to proceed, the same would amountto abuse of process of the Court.

12. The law on the point has been summarised in a recent judgmentof this Court in State of Rajasthan v. Ashok Kumar Kashyap[2]. Relevantparas are extracted below: - “11.1. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, thisCourt had an occasion to consider Section 227 CrPC What isrequired to be considered at the time of framing of the chargeand/or considering the discharge application has been considered 2 (2021) 11 SCC 191

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elaborately in the said decision. It is observed and held that at thestage of Section 227, the Judge has merely to sift the evidence inorder to find out whether or not there is sufficient ground forproceeding against the accused. It is observed that in other words,the sufficiency of grounds would take within its fold the nature ofthe evidence recorded by the police or the documents producedbefore the court which ex facie disclose that there are suspiciouscircumstances against the accused so as to frame a charge againsthim. It is further observed that if the Judge comes to a conclusionthat there is sufficient ground to proceed, he will frame a chargeunder Section 228 CrPC, if not, he will discharge the accused. Itis further observed that while exercising its judicial mind to thefacts of the case in order to determine whether a case for trialhas been made out by the prosecution, it is not necessary for thecourt to enter into the pros and cons of the matter or into a weighingand balancing of evidence and probabilities which is really thefunction of the court, after the trial starts.

11.2. In the recent decision of this Court in State ofKarnataka v. M.R. Hiremath, (2019) 7 SCC 515, one of us (D.Y.Chandrachud, J.) speaking for the Bench has observed and heldin para 25 as under:

“25. The High Court [M.R. Hiremath v. State, 2017 SCCOnLine Kar 4970] ought to have been cognizant of the fact thatthe trial court was dealing with an application for discharge underthe provisions of Section 239 CrPC. The parameters which governthe exercise of this jurisdiction have found expression in severaldecisions of this Court. It is a settled principle of law that at thestage of considering an application for discharge the court mustproceed on the assumption that the material which has been broughton the record by the prosecution is true and evaluate the materialin order to determine whether the facts emerging from the material,taken on its face value, disclose the existence of the ingredientsnecessary to constitute the offence. In State of T.N. v. N. SureshRajan, (2014) 11 SCC 709, adverting to the earlier decisions onthe subject, this Court held:

‘29. … At this stage, probative value of the materials hasto be gone into and the court is not expected to go deep into thematter and hold that the materials would not warrant a conviction.

In our opinion, what needs to be considered is whether there is aground for presuming that the offence has been committed andnot whether a ground for convicting the accused has been madeout. To put it differently, if the court thinks that the accused mighthave committed the offence on the basis of the materials on recordon its probative value, it can frame the charge; though forconviction, the court has to come to the conclusion that the accusedhas committed the offence. The law does not permit a mini trial atthis stage.”

13. The relevant part of the impugned order passed by the HighCourt is reproduced below:-

“In the statement of Suresh Thapa dated 11.12.2006, he says hehad attended party at the bungalow. In the statement of CollectorSingh Thakur recorded on 9.12.2007, he refers tearing of papersby accused no.2 at 7 O’ clock on 13.5.2006. Even this statementprimarily would not activate to nail the accused-applicants as theincident of elimination/murder has taken place late in the night.Mr. Suresh Thapa, in his statement on 14.5.2006, refers that inthe late night he was sitting of a platform at site, at such time acar came to drop deceased and thereafter the deceased wentwith his gardener Hari to his house. In further statement dated28.6.2006, he refers of a silver colour Tata India Car coming tothe area of society and a person from the car called the deceasedloudly, he was tall with long hair. The deceased came and hadchat with the said person who later accompanied the deceased tobungalow. In third statement dated 11.12.2006, Suresh Thapachanged his earlier version and stated that a silver colour carcame to the gate of the society and driver honked, the deceasedcame out of his bungalow, he opened the door, the deceased closedthe door and he then went towards bungalow no.5 and whilereturning, the car was standing near his bungalow, the driver wentahead to the deceased, however they had no communication. Thenhe went ahead and called “Captain Captain”, they had chat. Theperson accompanied the deceased and 2 – 3 person were sittingin the car. In the supplementary statement of Ramesh Dhakol –another security, dated 1.1.2007, he refers of vehicle of accusedno.2 coming back at around 2 to 2.30 a.m. in the night and shewent to her bungalow. He says, his earlier statement was AB

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Aincorrect. Dr. Ajitsingh in his statement dated 31.12.2006 refersto his visit to the deceased and also with the deceased to thehouse of accused nos. 1 and 2 in April, 2006. He saw the deceasedand accused no.2 on a swing while accused no. 1 was nearby.This he noticed on 13.5.2006. The statement of Sajida Begum –wife of Zarnish (Mohd. Asgar) does not implicate the accused-Bapplicants. Brother of the deceased Mr. Manjitsingh refers to acommunication he had with accused no.1 in past, wherein accusedno.1 allegedly conveyed him the deceased wanted to purchaseeverything, if time permits he will also purchase his wife. Thiscommunication was on telephone”.C

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14. A perusal of the impugned order passed by the High Courtshows that some of the material collected by the Investigating Agencyfiled 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 haveDbeen referred to. However, from a perusal of the record, it is evidentthat their statements have not be noticed either in their entirety or onlypart of the statements recorded on a particular day has been noticed andthe statements recorded either before or after, have not been referredto. Besides that, the Investigating Agency had recorded the statementsof Hiraman Dyaneshwar Chaudhari, Ramesh Murlidhar, Mohan Vs., EAshok Gunaji Thosar, Mehboob Dastagi Sheikh, and Rakma ShivramWaghmare, which have not been referred to and considered by the HighCourt while discharging Respondent Nos. 1 and 2. The fact cannot lostsight of that it was a case of blind murder. The circumstances only couldhave nailed the accused through the material collected by the Investigating FAgency.

15. Psychological Evaluation including Psychological Profiling,Polygraph Testing and BEOS of Respondent No. 1 was conducted.Besides this test was also conducted of other four persons who wereclose aides of respondent no.1, namely, Ahok Gajraj Chaudhary, MehboobGDastagir Sheikh, Baliram Chidhu Khade and Mohan VijayammaShridharan.

16. In the report of the test conducted on Respondent No.1, theopinion furnished by the Directorate of Forensic Sciences Laboratory,Home Department, Maharashtra, shows the involvement of RespondentHNo.1 in the murder of Captain Manmohan Singh. His psychological profiling also pointed out towards him being an antisocial personalitywith tendency to go against the social norms. Relevant part of the reportis extracted below:- “Psychological Evaluation of the subject Mohammed Shattafclearly indicates his involvement in the murder of Capt. ManmohanSingh as indicated by Deception on the questions of Polygraphand by Experiential Knowledge present on the significant probeson BEOS. This finding was corroborated by the finding that thesubject has Antisocial Personality Traits and a tendency to portrayhimself in a socially desirable way. Narcoanalysis could not beconducted on the subject he refused to give written consent forthe procedure”.

(emphasis supplied)

17. Besides this, opinion regarding four other persons shows thatthere was deceit in responding to question about knowledge of killing ofdeceased. Relevant part of the report is extracted below:- “Psychological Evaluation of the subjects Ashok Gajraj Chaudharyand Mehboob Dastagi Sheikh included Psychological Profiling andPolygraph Examination in the case of the murder of Capt.Manmohan Singh. With regard to Ashok Gajraj Chaudary, eventhough he denied having any knowledge about the murder, yet hisPolygraph examination revealed about the murder, yet hisPolygraph examination revealed his attempts to deceive onquestions related to him hiding information related to the death ofCapt. Singh him being asked by somebody to hide informationabout this murder, and him knowing who has killed the victim.Inrelation to Mehboob Dastagi Sheikh, even though he denied havingwitnessed or helped in the murder of Capt. Manmohan Singh, orhaving any knowledge about the same, yet his PolygraphExamination reveals ‘Deception’ on the question related to himknowing who has murdered Capt. Manmohan Singh”.

(emphasis supplied)

18. The High Court vide impugned order had summed up the entireevidence in two paras without even referring to the PsychologicalEvaluation including Psychological Profiling, Polygraph Testing and BrainElectrical Oscillations Signature Profiling (BEOS) tests of the accused A

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Aand the other aides of respondent no.1 and ordered discharge ofRespondent Nos.1 and 2.

19. Though Psychological Evaluation test report only may not besufficient to convict an accused but certainly a material piece of evidence.Despite this material on record, the High Court could not have opinedBthat the case was not made out even for framing of charge, for whichonly prima facie case is to be seen.

20. If the facts of the case are examined in the light of law laiddown by this Court on the subject, it is evident that the High Court hasnot even referred to the evidence collected by Investigating AgencyCproduced alongwith chargesheet in its entirety. Rather there is selectivereference to the statements of some of the persons recorded duringinvestigation. It shows that there was total non-application of mind. TheHigh Court had exercised the jurisdiction in a manner which is not vestedin it to scuttle the trial of a heinous crime.

D21. For the reasons mentioned above, the appeal is allowed andthe impugned order of the High Court is set aside.

Ankit Gyan

Appeal allowed.

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