Tushar Dilip Sampat Vs the State of Maharashtra and Anr.

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(10)WPNo.7702019.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO.770 OF 2019

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Tushar Dilip Sampat
Versus

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...Petitioner

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The State of Maharashtra & Anr. ...Respondents

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Mr.Siddharth C. Wakankar, Advocate for the Petitioner.

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Mr.A.R.Kapadnis, the Additional Public Prosecutor for the
Respondent/State.

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PSI Chitra Chaudhari, Koregaon Park Police Station, Pune is
present in person.

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CORAM : A.M.BADAR J.

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DATED : 20th JANUARY 2020.

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P.C.:

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1By this Writ Petition, the petitioner is challenging the
revisional Order passed on 22/01/2019 by the learned Additional
Sessions Judge, Pune thereby rejecting his Revision Petition and
confirming the Order dated 09/03/2018 passed by the learned
trial Magistrate rejecting the application below Exhibit 23 in
Regular Criminal Case No.4140 of 2016 whereby discharge was
claimed.

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2Heard the learned Counsel appearing for the
petitioner/accused. He argued that alleged incident is dated

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Gaikwad RD

(10)WPNo.7702019.doc

21/04/2015, whereas the report thereof came to be lodged on
13/05/2015. According to the learned Counsel, statement of all
other witnesses are absolutely silent about this incident and those
are reflecting general conduct. There are many witnesses who
have favoured the petitioner/accused. But those statements were
not considered by the learned trial Magistrate and those
statements were not even included in the compilation of the final
report by the police. According to the learned Counsel for the
petitioner, in their matters initiated at the instance of the First
Informant, B Summary is already granted.

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3By relying on Judgment in the matter of Nitya
Dharmananda @ K. Lenin & Anr. v. Gopal Sheelum Reddy also
known as Nithya Bhaktananda & Anr.1, the learned Counsel for the
petitioner argued that at the stage of framing of charge, the
accused can invoke Section 91 of the Code of Criminal Procedure
by satisfying the Court that the material of sterling quality
available with the Investigator is not made part of the charge-sheet
and such material has crucial bearing on the framing of the
charge. He argued that the learned trial Magistrate ought to have
invoked this jurisdiction for calling statement of witnesses who
favoured the accused. By relying on Judgment of the Honourable
Single Judge of this Court in the matter of Baburao Hari Pawar v.
State of Maharashtra2, the learned Counsel argued that delay in

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1 (2018) 2 Supreme Court Cases 93.

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2 Decided on 22^nd July 1986 at Mumbai.

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filing an application for discharge can be overlooked because right
to ask for discharge is always available to an accused at any stage
of trial. Reliance is also placed on the Judgment of the
Honourable Apex Court in the matter of Amit Kapoor v. Ramesh
Chander & Anr.3 for contending that presumption that the accused
has committed the offence is not a presumption of law.
Satisfaction of the Court in respect of the facts leading to the
offence is necessary for exercise of jurisdiction for framing the
charge. The petitioner further relied on Judgment of the
Honourable Apex Court in the matter of Ajoy Kumar Ghose v.
State of Jharkhand4 and contended that the Magistrate is justified
in framing the charge if he is of the opinion that there is ground
for presuming that the accused has committed an offence.

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4The learned Additional Public Prosecutor opposed the
application by drawing my attention to the FIR lodged by the
victim of the crime in question so also on various statements of
witnesses recorded during the course of investigation.

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5I have considered the submissions so advanced and
perused the material placed on record including the charge-sheet.

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6FIR of the subject crime was lodged on 13/05/2015 by
the First Informant, who happens to be the victim of the crime in
question. Accordingly, Crime No.45 of 2015 came to be registered
and on conclusion of investigation, the prosecuting agency has

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3 (2012) 9 Supreme Court Cases 460.

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4 (2009) 14 Supreme Court Cases 115.

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filed the charge-sheet for offences punishable under Sections 354-
A, 354-D, 504, 506 and 509 of the Indian Penal Code. The claim
is for discharge from these offences in this matter.

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7Perusal of the FIR shows that the First Informant
/alleged victim woman was residing at Flat No.C-12 in the Infinity
Apartment, whereas the petitioner/accused is stated to be resident
of Flat No.B-10 of the same Apartment. It is averred by the First
Informant that as she was residing alone in the Apartment, the
petition/accused started making unwelcome advances towards her
and he was insisting for having sex with her. She has spoken
about obscene gestures of the petitioner/accused in April 2015
with utterances “I will fuck you”. Apart from abuses, she is very
categoric in respect of the incident dated 29/04/2015. As per
version in the FIR, at about 6.30 p.m. of that day, she was
proceeding from a lane of Koregaon Park, Pune and the petitioner/
accused started following her. He accosted her, gave abuses to her
and flashed at her by opening chain of his full pant. The First
Informant further stated that the petitioner/accused uttered “Can
we sleep together to night. You are alone I am also alone. Let us
have sex together”. She stated that thereafter she was threatened
by the petitioner/accused. She has also stated about jamming lock
of her outer door of her apartment by inserting Fevi Quick liquid
by the petitioner/accused so also adulterating petrol in her
vehicle.

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8For framing the charge what is required to be
considered is whether the material collected by the Investigating
Officer is sufficient for presuming that the offence has been
committed. It is not necessary that such a material is sufficient to
convict the accused. There was statements of witnesses, who have
corroborated the First Informant in material particulars. The
witness has stated that the First Informant had, soon after the
incident, had disclosed the incident which took place on
21/04/2015 to her.

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9It is not case of the petitioner that he has moved an
application under Section 91 of the Code of Criminal Procedure
and the same was not considered. Non-consideration of
statements of favourable witnesses or non-filing of those
statements shall have bearing during the course of trial and not at
the state of discharge. For deciding the claim for discharge, those
are not relevant as weighing the evidence would result in mini
trial before the Court.

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10No infirmity can be found in the impugned Order in
the light of foregoing discussion. The petition, as such, fails and
the same is dismissed.

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Raju D. Gaikwad

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Digitally signed by Raju D. Gaikwad Date: 2020.01.20 18:34:49 +0530

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Gaikwad RD

Tushar Dilip Sampat v. the State of Maharashtra and Anr.

Case brief

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Tushar Dilip Sampat v. the State of Maharashtra and Anr.

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