Criminal Appeal No.

1399 of 2023

[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 1399 of 2023

Captain Manjit Singh Virdi (Retd.) …Appellant(s)

Versus

Hussain Mohammed Shattaf & Ors. …Respondent(s)

JUDGMENT

Rajesh Bindal, J.

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, 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

Signature Not Verified

Digitally signed by
SNEHA DAS

Virdi’s Bungalow, Thombarewadi, Lonawala. His body was

Date: 2023.05.18
17:33:52 IST
Reason:

found lying in a pool of blood in his bedroom.

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 Criminal Appeal No. 1399 of 2023

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 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 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 Pimpalkar1.

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

1 (2023) 4 SCC 298

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 Criminal Appeal No. 1399 of 2023

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. 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.

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 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.

8. After registration of FIR, investigation was conducted

and statements of number of persons were recorded under

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 Criminal Appeal No. 1399 of 2023

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 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 Shattaf and Waheeda Hussain Shattaf (Respondent

nos. 1 and 2) and 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 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.

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 Criminal Appeal No. 1399 of 2023

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 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 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 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

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 Criminal Appeal No. 1399 of 2023

trial is allowed to proceed, the same would amount 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: -

“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 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 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 is further observed that while exercising
its judicial mind to the facts of the case in order to
2 (2021) 11 SCC 191

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 Criminal Appeal No. 1399 of 2023

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.

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:
“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 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
necessary to constitute the offence. In State of
T.N. v. N. Suresh Rajan, (2014) 11 SCC 709,

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 Criminal Appeal No. 1399 of 2023

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 matter and
hold that the materials would not warrant a
conviction. In our opinion, what needs to be
considered is whether there is 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 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:-

“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

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 Criminal Appeal No. 1399 of 2023

primarily would not activate to nail the accused-

applicants as the incident of elimination/murder has
taken place late in the night. 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 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 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 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

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 Criminal Appeal No. 1399 of 2023

her bungalow. He says, his earlier statement was

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-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”.

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 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

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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., 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 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 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 No.1 in the murder of Captain

Manmohan Singh. His psychological profiling also pointed out

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towards him being an antisocial personality 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 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”.
(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:-

“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

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 Criminal Appeal No. 1399 of 2023

knowledge about the murder, yet his 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 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)

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 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

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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.

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 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.

21. For the reasons mentioned above, the appeal is

allowed and the impugned order of the High Court is set aside.

_____________, J.
(Abhay S. Oka)

____________, J.
(Rajesh Bindal)
New Delhi
May 18, 2023.

//JK- PM //

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