TMI Blog2019 (7) TMI 1546X X X X Extracts X X X X X X X X Extracts X X X X ..... ion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him - It is thus clear that while examining the discharge application filed Under Section 227 Code of Criminal Procedure, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not supposed to hold a mini trial by marshalling the evidence on record. There are no error in the judgment passed by the trial Court and confirmed by the High Court by the impugned judgment dated 22nd November, 2018 which calls for our interference - appeal dismissed. - A.M. Khanwilkar and Ajay Rastogi, JJ. JUDGMENT Ajay Rastogi, J. 1. Leave granted. 2. The present appeal has been preferred by the Accused Appellant against whom a criminal case bearing No. RC 04/16-NIA-HYD came to be registered along with four other Accused persons for the offences punishable Under Sections 120-B, 109, 150, 153A, 302, 201 read with Section 34 of Indian Penal Code; Sections 3 and 27 of the Arms Act and Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich stated that Accused Nos. 1 to 4 conspired with the Accused Appellant(accused No. 5) to kill RSS members and in furtherance of their acts, they committed offence punishable Under Sections 302, 201 read with Section 34 Indian Penal Code. The Accused persons were said to be in possession of weapons without license, thereby it attracted the offence punishable Under Sections 3 and 27 of the Arms Act. Further, the acts of the Accused persons including the Accused Appellant amounted to offences punishable Under Sections 120B, 109, 150, 153A, 302, 201 read with Section 34 Indian Penal Code and Under Sections 16(1)(a), 18 and 20 of the UAP Act. 6. The Appellant sought discharge Under Section 227 Code of Criminal Procedure along with other Accused persons which came to be rejected vide order dated 2nd January, 2018 and framed charges against the Accused persons including Accused Appellant. Special NIA Court under its Order dated 2nd January, 2018 while deciding the application of Appellant seeking discharge Under Section 227 Code of Criminal Procedure observed that it was admitted by the defence counsel that the Appellant is the President of Bengaluru unit of Popular Front o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing terror among a Section of people belonging to RSS is concocted and without any substance as nothing incriminating has been recovered from the Appellant or to support the prosecution story and in the given circumstances, rejecting his application for discharge Under Section 227 Code of Criminal Procedure by the trial Judge and affirmed by the High Court is not sustainable in law. 10. Learned Counsel further submits that though the alleged incident as per the case of prosecution has been planned and executed on the last day of Navaratri being Vijayadashmi whereas it is a matter of record that the Navaratri was already over on the said date and the Vijayadashmi was on 11th October, 2016 and the alleged incident was on 16th October, 2016. Such a statement was made just to prejudice the mind of the Court to frame charge against the Appellant which is unreasonable and unjustified and this has not been looked into and appreciated by the High Court in its impugned judgment. 11. Learned Counsel further submits that none of the Accused in this case are the member of any terrorist organisation which are banned under the Schedule of UAP Act and, therefore, the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed by the Appellant to kill RSS members. vi) Accused No. 4 confesses that Accused Appellant was the mastermind behind the killing of RSS members. 15. Learned Counsel further submits that there is a strong suspicion which leads the Court to think that the Appellant has committed an offence which clearly borne out from the charge-sheet placed on record and the trial Court rightly held that the prima facie case was made out against the Appellant and after the matter has been elaborately considered by the High Court in revisiting the factual matrix taken note by the trial Court under its Order dated 2nd January, 2018, no interference at least is called for in the appeal preferred at the instance of the Appellant. 16. Before we proceed to examine the facts of the present case, it may be apposite to take note of the ambit and scope of the powers of the Court at the time of considering the discharge application. This Court in Union of India Vs. Prafulla Kumar Samal and Ors. 1979(3) SCC 4 had an occasion to consider the scope of Section 227 Code of Criminal Procedure and it held in paragraph 7 as under: 7. Section 227 of the Code runs t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the Accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the Accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the Accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. Subsequently, National Investigation Agency(NIA) registered first information in R.C. No. 24/2016 including the Appellant-Asim Shariff (accused No. 5) in the list of the accused. The task of investigation was entrusted to NIA by the Union of India, Ministry of Home Affairs(Internal Security-1 Division), North Block, New Delhi through its orders dated 7th December, 2016 as per Section 6(5) read with Section 8 of the National Investigation Act. In obedience to the said order, the NIA, Hyderabad Branch, registered the case in RC 04/16-NIA-HYD for the offences punishable Under Sections 120B, 109, 150, 153A, 302, 201 read with Section 34 Indian Penal Code; Sections 3 and 27 of the Arms Act and Sections 15, 16, 17, 18 20 of the UAP Act. 21. After completion of the investigation, final report was submitted before the trial Court against the Accused persons 1 to 5 on 21st April, 2017. At this stage, the application filed by the Accused Appellant Under Section 227 Code of Criminal Procedure seeking his discharge from the charge for the aforesaid offences came to be dismissed by the trial Court, after recording cogent reasons and order of framing charge against him and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged, assessed and adjudicated in the proceedings and again the Petitioner has come for the next round. On facts or in law there is no material worth to suggest fallibility of the proceedings in Spl. C.C. No. 181/2017 pending on the file of XLIX Addl. City Civil Sessions Judge (Special Court of trial of NIA cases) at Bengaluru for the offences punishable under Sections 302, 201 r/w Sections 34 of Indian Penal Code and Section 3 and 27 of Arms Act and Under Section 15, 16, 17, 18 and 20 of Unlawful Activities (Prevention) Act, 1967. 23. That apart, we have also gone through the relevant record and extract of the charge-sheet placed on record for perusal, the fact reveals that the Accused Appellant is the President of Bengaluru unit of Popular Front of India(PFI) and the other Accused Nos. 1 to 4 are also the members of PFI. It reveals from the charge-sheet that there was frequent telephonic/mobile conversation between Appellant(accused No. 5) with other Accused persons(accused Nos. 1 to 4) prior and subsequent to 16th October, 2016 (the alleged date of incident) which persuaded the Court to arrive to a conclusion that there is a prima facie material of conspiracy am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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