SHETIYAMMA PUJARI DHOTRE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Quite an important question of law that I am called upon to decide in this criminal application filed by the petitioner under section 397 read with section 482 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") is as to at what stage the jurisdiction of the Court of Session can be invoked by an accused for being discharged under section 227 of the Code. The issue assumes greater importance as there is no precedent on this law point or if there is any, it has not been brought to my notice.

(2.) The petitioner is the mother of one Suresh who is alleged to have been murdered. The prosecution case is that the petitioner was unfaithful to her husband during his life time and even after his death. Here husband was dealing in quarry business which was being managed after his death by the petitioner and her deceased son Suresh. However, subsequently disputes arose over this business between the mother and then son. The prosecution alleged that on account of such disputes, the petitioner decided to do away with her son with a view to become an absolute owner of the business. It is alleged that, therefore, she conspired with her men of confidence viz. Shankar (accused No. 2) and Gangadhar, stated to be absconding accused No. 5. It is the prosecution case that the petitioner was having illicit relations with Gangadhar. Further, it is alleged that after entering into conspiracy with Shankar and Gangadhar to kill Suresh, Accused No. 3 Baidulla and accused No. 4 Asagarali were hired and in pursuance of such conspiracy, on 23rd November, 1985 when Suresh was proceeding in his car along Quarry Road, Jogeshwari, accused Nos. 3 and 4 followed him upon a motor cycle and fired shot from a country made pistol at Suresh and sped away. Suresh succumbed to the injuries received by him, before admission in the hospital. The D.N. Nagar Police carried out investigation in this murder case and arrested the petitioner as also Shankar and the two hirelings. Gangadhar is shown as absconding. The accused were charge-sheeted in the Court of the learned Metropolitan Magistrate, 44th Court, Andheri who by his order dated 6th March, 1986 committed the case to the Court of Session, Greater Bombay, for offences punishable under sections 120-B and 302 read with section 34 of the Indian Penal Code.

(3.) The trial is pending in the Sessions Court but in the meanwhile the petitioner made an application under section 227 of the Code for being discharged, contending that the material procured by the prosecution against her was not sufficient to frame a charge and that in the normal course it would take about two to three years for the trial to commence. She also contended that this was an unusual case where a mother was charged for an alleged offence of murder of her own son which has adversely affected her image in the society and she was facing social boycott and great humiliation and even her other children are not prepared to talk to her. The said application was heard by the learned Additional Sessions Judge (Mrs. P.D. Upasani) who by her impugned order dated 2nd September, 1986 rejected it mainly on the ground that the stage for discharging the accused has not reached as under Chapter XVIII of the Code the trial is conducted by the Public Prosecutor who opens the case of the prosecution under section 226 by stating what evidence he proposes to adduce to prove the guilt of the accused and then only the stage of discharging the accused arrives under section 227 and if the accused is not discharged, a charge has to be framed under section 228. In other words, the learned Additional Sessions Judge was of the view that the application made by the petitioner for being discharged even before the commencement of trial under Chapter XVIII, was premature and, therefore, not maintainable in law. She was also of the view that if such a premature application is entertained, "one can visualise the situation where each accused would be seen rushing, flooding and engulfing the Sessions Court immediately after the committal order was passed with application for discharge which would throw out of gear the work and procedure in the Sessions Court." This is one more reason why she rejected the petitioners application.