CAPTAIN MANJIT SINGH VIRDI (RETD.)versusHUSSAIN MOHAMMED SHATTAF & ORS.

                        [2023] 6 S.C.R. 469                              469


           CAPTAIN MANJIT SINGH VIRDI (RETD.)                            A
                                  v.
           HUSSAIN MOHAMMED SHATTAF & ORS.
                 (Criminal Appeal No. 1399 of 2023)
                           MAY 18, 2023                                  B
        [ABHAY S. OKA AND RAJESH BINDAL, JJ.]
       Code of Criminal Procedure, 1973 – Application for
discharge – Victim’s body was found in a pool of blood in his bedroom
– After investigation, charge-sheet was filed against respondent
                                                                         C
nos.1 & 2 – Trial Court had not yet framed charges – Immediately
after filing of charge-sheet, application for discharge was filed –
The same was dismissed by the Trial Court – However, the High
Court set aside the order passed by the Trial Court and discharged
respondent nos. 1 & 2 – On appeal, held: The settled proposition of
law is that at the stage of hearing on charges entire evidence           D
produced by the prosecution is to be believed – In case no case is
made out, then only an accused can be discharged – At the stage of
charge, the Court has to satisfy that a prima facie case is made out
against the accused persons – In the instant case, the High Court
had not referred to the evidence collected by the investigating agency
                                                                         E
produced along with charge-sheet in its entirety – Rather there is
selective reference to the statements of some of the persons recorded
during investigation – There was no reference to the psychological
evaluation including psychological profiling, polygraph testing and
brain electrical oscillations signature profiling (BEOS) tests of the
accused and the other aides of respondent no.1 – Respondent nos.         F
1 & 2 were discharged without application of mind – High Court
had exercised the jurisdiction in a manner which is not vested in it
to scuttle the trial of a heinous crime.
      Allowing the appeal, the Court
      HELD: 1. The law on issue as to what is to be considered           G
at the time of discharge of an accused is well settled. It is a case
in which the Trial Court had not yet framed the charges.
Immediately after filing of chargesheet, application for discharge
was filed. The settled proposition of law is that at the stage of
hearing on the charges entire evidence produced by the                   H
                                 469
470            SUPREME COURT REPORTS                      [2023] 6 S.C.R.


A     prosecution is to be believed. In case no offence is made out
      then only an accused can be discharged. Truthfulness, sufficiency
      and acceptability of the material produced can be done only at
      the stage of trial. At the stage of charge, the Court has to satisfy
      that a prima facie case is made out against the accused persons.
      Interference of the Court at that stage is required only if there is
B
      strong reasons to hold that in case the trial is allowed to proceed,
      the same would amount to abuse of process of the Court. [Para
      11][473-D-F]
            2. The High Court vide impugned order had summed up
      the entire evidence in two paras without even referring to the
C     Psychological Evaluation including Psychological Profiling,
      Polygraph Testing and Brain Electrical Oscillations Signature
      Profiling (BEOS) tests of the accused and the other aides of
      respondent no.1 and ordered discharge of Respondent Nos.1 and
      2. [Para 18][477-G-H; 478-A]
D           3. Though Psychological Evaluation test report only may
      not be sufficient to convict an accused but certainly a material
      piece of evidence. Despite this material on record, the High Court
      could not have opined that the case was not made out even for
      framing of charge, for which only prima facie case is to be seen.
E     [Para 19][478-B]
            4. If the facts of the case are examined in the light of law
      laid down by this Court on the subject, it is evident that the High
      Court has not even referred to the evidence collected by
      Investigating Agency produced alongwith chargesheet in its
F     entirety. Rather there is selective reference to the statements of
      some of the persons recorded during investigation. It shows that
      there was total non-application of mind. The High Court had
      exercised the jurisdiction in a manner which is not vested in it to
      scuttle the trial of a heinous crime. [Para 20][478-B-D]

G           State of Rajasthan v. Ashok Kumar Kashyap (2021) 11
            SCC 191 – relied on.
            State of Maharashtra and Anr. v. Dr. Maroti
            S/o. Kashinath Pimpalkar (2023) 4 SCC 298 – referred
            to.
H
    CAPTAIN MANJIT SINGH VIRDI (RETD.) v. HUSSAIN                            471
            MOHAMMED SHATTAF & ORS.

                        Case Law Reference                                   A
(2023) 4 SCC 298                 referred to                 Para 4
(2021) 11 SCC 191                relied on                   Para 12
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1399 of 2023.                                                                B
      From the Judgment and Order dated 17.07.2013 of the High Court
of Judicature at Bombay in CRLRA No. 135 of 2012.
      Kunal Cheema, Shivam Dube, Raghav Deshpande, Advs. for the
Appellant.
                                                                             C
      Siddhartha Dave, Sr. Adv., Himanshu Bhushan, Ms. Aakriti Priya,
Kanu Agarwal, Siddhart Dharmadhikari, Aaditya Aniruddha Pande,
Bharat Bagla, Sourav Singh, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      RAJESH BINDAL, J.                                                      D
       1. The order dated 17.07.2013 passed by the High Court of
Judicature at Bombay in Revision Application No. 135 of 2012 has been
challenged by the appellant. By the aforesaid order, the High Court has
set aside the order dated 21.02.2012 passed by the court below vide
which application filed by the Respondent nos.1 and 2 for discharge,         E
was dismissed.
      2. The dispute arises out of an FIR No. 46 of 2006 registered at
Lonawala City Police Station on 14.05.2006 for murder of Manmohan
Singh Sukhdev Singh Virdi, a resident of Virdi’s Bungalow, Thombarewadi,
Lonawala. His body was found lying in a pool of blood in his bedroom.        F
       3. Learned counsel appearing for the Appellant submitted that a
bare perusal of the impugned order passed by the High Court shows
that a mini trial has been conducted merely by referring to some of the
statements recorded by the police during investigation, which were
forming part of the chargesheet. This was beyond the scope of jurisdiction   G
of the Court at the time of consideration of application for discharge.
The Court had failed to consider the fact that there was Psychological
Evaluation including Psychological Evaluation including Psychological
Profiling, Polygraph Testing and Brain Electrical Oscillations Signature
Profiling (BEOS) conducted on Respondent Nos. 1 and four other aides
                                                                             H
472                SUPREME COURT REPORTS                      [2023] 6 S.C.R.


A     of respondent no.1, which lead towards the accusation of Respondent
      Nos. 1 and 2 in the crime.
            4. In support of the arguments, learned counsel for the appellant
      has placed reliance upon the judgment of this Court in the case of State
      of Maharashtra and Anr. v. Dr. Maroti S/o.Kashinath Pimpalkar 1.
B            5. On the other hand, learned counsel for Respondent Nos. 1 and
      2 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 the
      deceased. They were happily living in the neighbourhood. A false story
      was built up by the prosecution for which there is no material to support.
C     He further submitted that Trial Court had failed to exercise jurisdiction
      vested in it to discharge the respondent no. 1 and 2. They have been
      falsely implicated in the case. It would be abuse of the process of the
      Court in case they are made to face trial. The relevant material collected
      by the prosecution was considered by the High Court.

D             6. Though the order passed by the High Court as such has not
      been challenged by the State. The learned counsel for the State having
      no explanation therefor sought to argue that the impugned order cannot
      be legally sustained as at the stage of consideration of application for
      discharge, appreciation of the evidence as such was not possible as the
      same could be only after the evidence is recorded in the Court after
E     trial. At the stage of framing of charge only prima facie case is to be
      seen.
            7. Heard learned counsel for the parties and perused the record
      and relevant papers.

F            8. After registration of FIR, investigation was conducted and
      statements of number of persons were recorded under Section 161 and
      164 of Cr.P.C. Even a Psychological Evaluation including Psychological
      Profiling, Polygraph Testing and Brain Electrical Oscillations Signature
      Profiling (BEOS) of Respondent No. 1 was conducted on 31.5.2007
      and similar tests were conducted on the other four persons viz. Baliram
G     Chidhu 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 and
      chargesheet dated 09.12.2009 was filed against Hussain Mohammed

H     1
          (2023) 4 SCC 298
       CAPTAIN MANJIT SINGH VIRDI (RETD.) v. HUSSAIN                           473
       MOHAMMED SHATTAF & ORS. [RAJESH BINDAL, J.]

Shattaf and Waheeda Hussain Shattaf (Respondent nos. 1 and 2) and              A
Zaanish Khan stating therein that while Respondent no.1 was staying in
Dubai for the purpose of his business, his wife respondent no.2 came in
contact with the deceased and developed friendship. They started
meeting each other frequently. The friendship turned into physical
relationship. When the Respondent No.1 returned from Dubai, he came
                                                                               B
to know about the same. To take revenge, he in connivance with
respondent no.2 and one Zaanish Khan conspired to kill the deceased
through unknown assailants.
       10. As the case was triable by Sessions, the matter was committed
by the Magistrate to the Sessions Court, Pune. Immediately thereafter
Respondent Nos. 1 and 2 filed revision application for discharge. The          C
same was dismissed by the Trial Court vide Order dated 21.02.2012.
The High Court vide impugned order had set aside the order passed by
the Trial Court and discharged Respondent Nos. 1 and 2. The aforesaid
order is under challenge before this Court.
       11. The law on issue as to what is to be considered at the time of      D
discharge of an accused is well settled. It is a case in which the Trial
Court had not yet framed the charges. Immediately after filing of
chargesheet, application for discharge was filed. The settled proposition
of law is that at the stage of hearing on the charges entire evidence
produced by the prosecution is to be believed. In case no offence is           E
made out then only an accused can be discharged. Truthfulness,
sufficiency and acceptability of the material produced can be done only
at the stage of trial. At the stage of charge, the Court has to satisfy that
a prima facie case is made out against the accused persons. Interference
of the Court at that stage is required only if there is strong reasons to
hold that in case the trial is allowed to proceed, the same would amount       F
to abuse of process of the Court.
        12. The law on the point has been summarised in a recent judgment
of this Court in State of Rajasthan v. Ashok Kumar Kashyap2. Relevant
paras are extracted below: -
                                                                               G
         “11.1. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, this
         Court had an occasion to consider Section 227 CrPC What is
         required to be considered at the time of framing of the charge
         and/or considering the discharge application has been considered
2
    (2021) 11 SCC 191                                                          H
474      SUPREME COURT REPORTS                            [2023] 6 S.C.R.


A     elaborately in the said decision. It is observed and held that at the
      stage of Section 227, the Judge has merely to sift the evidence in
      order to find out whether or not there is sufficient ground for
      proceeding against the accused. It is observed that in other words,
      the sufficiency of grounds would take within its fold the nature of
      the evidence recorded by the police or the documents produced
B
      before the court which ex facie disclose that there are suspicious
      circumstances against the accused so as to frame a charge against
      him. It is further observed that if the Judge comes to a conclusion
      that there is sufficient ground to proceed, he will frame a charge
      under Section 228 CrPC, if not, he will discharge the accused. It
C     is further observed that while exercising its judicial mind to the
      facts of the case in order to determine whether a case for trial
      has been made out by the prosecution, it is not necessary for the
      court to enter into the pros and cons of the matter or into a weighing
      and balancing of evidence and probabilities which is really the
      function of the court, after the trial starts.
D
      11.2. In the recent decision of this Court in State of
      Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, one of us (D.Y.
      Chandrachud, J.) speaking for the Bench has observed and held
      in para 25 as under:
E             “25. The High Court [M.R. Hiremath v. State, 2017 SCC
      OnLine Kar 4970] ought to have been cognizant of the fact that
      the trial court was dealing with an application for discharge under
      the provisions of Section 239 CrPC. The parameters which govern
      the exercise of this jurisdiction have found expression in several
      decisions of this Court. It is a settled principle of law that at the
F     stage of considering an application for discharge the court must
      proceed on the assumption that the material which has been brought
      on the record by the prosecution is true and evaluate the material
      in order to determine whether the facts emerging from the material,
      taken on its face value, disclose the existence of the ingredients
G     necessary to constitute the offence. In State of T.N. v. N. Suresh
      Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on
      the subject, this Court held:
             ‘29. … At this stage, probative value of the materials has
      to be gone into and the court is not expected to go deep into the
H     matter and hold that the materials would not warrant a conviction.
    CAPTAIN MANJIT SINGH VIRDI (RETD.) v. HUSSAIN                              475
    MOHAMMED SHATTAF & ORS. [RAJESH BINDAL, J.]

      In our opinion, what needs to be considered is whether there is a        A
      ground for presuming that the offence has been committed and
      not whether a ground for convicting the accused has been made
      out. To put it differently, if the court thinks that the accused might
      have committed the offence on the basis of the materials on record
      on its probative value, it can frame the charge; though for
                                                                               B
      conviction, the court has to come to the conclusion that the accused
      has committed the offence. The law does not permit a mini trial at
      this stage.”
      13. The relevant part of the impugned order passed by the High
Court is reproduced below:-
                                                                               C
      “In the statement of Suresh Thapa dated 11.12.2006, he says he
      had attended party at the bungalow. In the statement of Collector
      Singh Thakur recorded on 9.12.2007, he refers tearing of papers
      by accused no.2 at 7 O’ clock on 13.5.2006. Even this statement
      primarily would not activate to nail the accused-applicants as the
      incident of elimination/murder has taken place late in the night.        D
      Mr. Suresh Thapa, in his statement on 14.5.2006, refers that in
      the late night he was sitting of a platform at site, at such time a
      car came to drop deceased and thereafter the deceased went
      with his gardener Hari to his house. In further statement dated
      28.6.2006, he refers of a silver colour Tata India Car coming to         E
      the area of society and a person from the car called the deceased
      loudly, he was tall with long hair. The deceased came and had
      chat with the said person who later accompanied the deceased to
      bungalow. In third statement dated 11.12.2006, Suresh Thapa
      changed his earlier version and stated that a silver colour car
      came to the gate of the society and driver honked, the deceased          F
      came out of his bungalow, he opened the door, the deceased closed
      the door and he then went towards bungalow no.5 and while
      returning, the car was standing near his bungalow, the driver went
      ahead to the deceased, however they had no communication. Then
      he went ahead and called “Captain Captain”, they had chat. The           G
      person accompanied the deceased and 2 – 3 person were sitting
      in the car. In the supplementary statement of Ramesh Dhakol –
      another security, dated 1.1.2007, he refers of vehicle of accused
      no.2 coming back at around 2 to 2.30 a.m. in the night and she
      went to her bungalow. He says, his earlier statement was
                                                                               H
476            SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A           incorrect. Dr. Ajitsingh in his statement dated 31.12.2006 refers
            to his visit to the deceased and also with the deceased to the
            house of accused nos. 1 and 2 in April, 2006. He saw the deceased
            and 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-
B
            applicants. Brother of the deceased Mr. Manjitsingh refers to a
            communication he had with accused no.1 in past, wherein accused
            no.1 allegedly conveyed him the deceased wanted to purchase
            everything, if time permits he will also purchase his wife. This
            communication was on telephone”.
C            14. A perusal of the impugned order passed by the High Court
      shows that some of the material collected by the Investigating Agency
      filed 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 have
D     been referred to. However, from a perusal of the record, it is evident
      that their statements have not be noticed either in their entirety or only
      part of the statements recorded on a particular day has been noticed and
      the statements recorded either before or after, have not been referred
      to. Besides that, the Investigating Agency had recorded the statements
      of Hiraman Dyaneshwar Chaudhari, Ramesh Murlidhar, Mohan Vs.,
E     Ashok Gunaji Thosar, Mehboob Dastagi Sheikh, and Rakma Shivram
      Waghmare, which have not been referred to and considered by the High
      Court while discharging Respondent Nos. 1 and 2. The fact cannot lost
      sight of that it was a case of blind murder. The circumstances only could
      have nailed the accused through the material collected by the Investigating
F     Agency.
             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 were
      close aides of respondent no.1, namely, Ahok Gajraj Chaudhary, Mehboob
G     Dastagir Sheikh, Baliram Chidhu Khade and Mohan Vijayamma
      Shridharan.
            16. In the report of the test conducted on Respondent No.1, the
      opinion furnished by the Directorate of Forensic Sciences Laboratory,
      Home Department, Maharashtra, shows the involvement of Respondent
H     No.1 in the murder of Captain Manmohan Singh. His psychological
    CAPTAIN MANJIT SINGH VIRDI (RETD.) v. HUSSAIN                           477
    MOHAMMED SHATTAF & ORS. [RAJESH BINDAL, J.]

profiling also pointed out towards him being an antisocial personality      A
with tendency to go against the social norms. Relevant part of the report
is extracted below:-
      “Psychological Evaluation of the subject Mohammed Shattaf
      clearly indicates his involvement in the murder of Capt. Manmohan
      Singh as indicated by Deception on the questions of Polygraph         B
      and by Experiential Knowledge present on the significant probes
      on BEOS. This finding was corroborated by the finding that the
      subject has Antisocial Personality Traits and a tendency to portray
      himself in a socially desirable way. Narcoanalysis could not be
      conducted on the subject he refused to give written consent for
      the procedure”.                                                       C

                                                  (emphasis supplied)
       17. Besides this, opinion regarding four other persons shows that
there was deceit in responding to question about knowledge of killing of
deceased. Relevant part of the report is extracted below:-                  D
      “Psychological Evaluation of the subjects Ashok Gajraj Chaudhary
      and Mehboob Dastagi Sheikh included Psychological Profiling and
      Polygraph Examination in the case of the murder of Capt.
      Manmohan Singh. With regard to Ashok Gajraj Chaudary, even
      though he denied having any knowledge about the murder, yet his       E
      Polygraph examination revealed about the murder, yet his
      Polygraph examination revealed his attempts to deceive on
      questions related to him hiding information related to the death of
      Capt. Singh him being asked by somebody to hide information
      about this murder, and him knowing who has killed the victim. In
      relation to Mehboob Dastagi Sheikh, even though he denied having      F
      witnessed or helped in the murder of Capt. Manmohan Singh, or
      having any knowledge about the same, yet his Polygraph
      Examination reveals ‘Deception’ on the question related to him
      knowing who has murdered Capt. Manmohan Singh”.
                                                  (emphasis supplied)       G
       18. The High Court vide impugned order had summed up the entire
evidence in two paras without even referring to the Psychological
Evaluation including Psychological Profiling, Polygraph Testing and Brain
Electrical Oscillations Signature Profiling (BEOS) tests of the accused
                                                                            H
478                SUPREME COURT REPORTS                        [2023] 6 S.C.R.


A     and the other aides of respondent no.1 and ordered discharge of
      Respondent Nos.1 and 2.
             19. Though Psychological Evaluation test report only may not be
      sufficient to convict an accused but certainly a material piece of evidence.
      Despite this material on record, the High Court could not have opined
B     that the case was not made out even for framing of charge, for which
      only prima facie case is to be seen.
              20. If the facts of the case are examined in the light of law laid
      down by this Court on the subject, it is evident that the High Court has
      not even referred to the evidence collected by Investigating Agency
C     produced alongwith chargesheet in its entirety. Rather there is selective
      reference to the statements of some of the persons recorded during
      investigation. It shows that there was total non-application of mind. The
      High Court had exercised the jurisdiction in a manner which is not vested
      in it to scuttle the trial of a heinous crime.

D           21. For the reasons mentioned above, the appeal is allowed and
      the impugned order of the High Court is set aside.


      Ankit Gyan                                                    Appeal allowed.


E




F




G




H