State Of Gujarat And Others vs R M Solanki And Others on 28 December, 2016

[Cites 48, Cited by 0]

Gujarat High Court

State Of Gujarat And Others vs R M Solanki And Others on 28 December, 2016

Bench: Paresh Upadhyay

                R/CR.RA/111/2012                                         CAV JUDGMENT




                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                CRIMINAL REVISION APPLICATION NO. 111 of 2012

                                          With

                 SPECIAL CRIMINAL APPLICATION NO. 619 of 2012

                                           With

                    CRIMINAL MISC.APPLICATION NO. 585 of 2012

         ======================================================

                STATE OF GUJARAT AND OTHERS                       ....Applicants

                        Versus

                R M SOLANKI AND OTHERS                            ....Respondents

         ======================================================

         Criminal Revision Application No.111 of 2012
         (State of Gujarat Vs. R.M.Solanki)

         MR MITESH AMIN, PUBLIC PROSECUTOR with
         MS MONALI BHATT, APP for the Applicant

         MR   R J GOSWAMI, ADVOCATE for the Respondent No.1
         MR   RITURAJ NANAVATI, ADVOCATE for the Respondent No.2
         MR   SHIRISH R PATEL, ADVOCATE for the Respondent Nos.3-7
         MR   P S CHAMPANERI, ADVOCATE for the Respondent No.8

         Special Criminal Application No.619 of 2012
         (R.M.Sonlaki Vs. State of Gujarat )

         MR K B ANANDJIWALA, SENIOR ADVOCATE with
         MR R J GOSWAMI, ADVOCATE for the Applicant

         MR MITESH AMIN, PUBLIC PROSECUTOR with
         MS MONALI BHATT, APP for the Respondent State




                                        Page 1 of 53

HC-NIC                                Page 1 of 53     Created On Thu Dec 29 00:37:51 IST 2016
                R/CR.RA/111/2012                                           CAV JUDGMENT




         Criminal Misc. Application No.585 of 2012
         (Manojkumar Bechardas Patel Vs. State of Gujarat)
         MR P S CHAMPANERI, ADVOCATE for the Applicant

         MR MITESH AMIN, PUBLIC PROSECUTOR with
         MS MONALI BHATT, APP for the Respondent State

         MR F B BRAHMBHATT, ADVOCATE for the Respondent Complainant
         ======================================================


          CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY

                                   Date : 28/12/2016

                                     CAV JUDGMENT

1. These three applications are interconnected and therefore they are heard together by this Court and are decided by this common Judgment.

2. The petitioner of Special Criminal Application No.619 of 2012 (Mr.R.M.Solanki) is one of the accused in Special NDPS Case No.1 of 2006. He had given an application Exh.195 for discharge to the Sessions Court, Ahmedabad (Rural). Along with him, one Mr.V.B.Raval, a co-accused had also given an application Exh.203 to the Trial Court. Both these applications came to be decided by the Sessions Judge, Ahmedabad (Rural) vide order dated 03.12.2011. The Sessions Court has partly allowed those applications. The accused are discharged from the charge of having committed offences punishable under Sections 193, 195, 196 and 211 of the Indian Penal Code. The accused are not discharged from other charges. It is this order, which is challenged before this Court by both - the State, so Page 2 of 53 HC-NIC Page 2 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT also one of the accused (Mr.R.M.Solanki). In Criminal Revision Application No.111 of 2012, the State has challenged the said order, contending that the Trial Court ought not to have discharged the accused even from the charge under Sections 193, 195, 196 and 211 of the Indian Penal Code. The accused (Mr.R.M.Solanki) has filed Special Criminal Application No.619 of 2012 contending that, not only the discharge in part - as ordered by the Sessions Court is legal, but additionally contending that the accused should have been completely discharged from the offence in question i.e. the proceedings in connection with C.R.-I No.131 of 2005 registered at Sabarmati Police Station, Ahmedabad. This is how these two cross applications are heard together. Another accused (Mr.Manoj Patel) has filed Criminal Misc. Application No.585 of 2012, praying for the quashment of the main proceedings in question, i.e. the proceedings in connection with C.R.-I No.131 of 2005 registered at Sabarmati Police Station, Ahmedabad. Thus the said application also pertains to the same offence and therefore that is also considered with the above noted two applications.

3.1 Submissions of learned advocates for the respective parties, are noted in Para:5 to 7.

3.2 The points at issue before the Court are noted in Para 8.

3.3 Reasoning and the findings of the Court are noted in Para: 9 to 13.

3.4 Final conclusions of the Court is noted in Para:14.

Page 3 of 53

HC-NIC Page 3 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT 3.5 Final order of the Court is noted in Para:15.

4. Learned advocates for the respective parties are heard at length.

5. Mr.Mitesh Amin, learned Public Prosecutor has submitted as under.

5.1 It is submitted that, while passing the impugned order, the Sessions Court fell in error by not taking into consideration the fact that similar attempt was already made by the accused earlier also but they were not successful. Attention of this Court is invited to the contents of the various applications filed by the accused and the orders passed thereon by the Sessions Judge, with specific reference to Exh.100, 126, 193 and 194 before the Sessions Court. Attention of this Court also invited to the order of this Court dated 01.12.2011 recorded on Special Criminal Application No.3152 of 2011. It is submitted that in view of all this, it was not open for the Sessions Court to arrive at a different conclusion. It is additionally submitted that the impugned order is also in conflict with the provisions of Section 362 of the Code. Learned Public Prosecutor has taken this Court through all the relevant sections of the Indian Penal Code as well as the Code of Criminal Procedure, more particularly, Sections 195 and 362 of the Code. It is submitted that, the Sessions Court has committed error on facts, so also in law and the impugned order therefore needs to be quashed and set aside.

5.2 It is further submitted that Section 195 of the Code is not attracted in the facts of the present case, as the offence Page 4 of 53 HC-NIC Page 4 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT alleged is, though in the 'same transaction', still there is evidence on record which establish that the offence under Sections 193, 195 and 196 of the Indian Penal Code, was complete, even before any proceedings under law was instituted before any Court.

5.3 It is submitted that the Sessions Court has exercised the jurisdiction, which otherwise is not vested with it in passing the impugned order. It is submitted that the Sessions Court has committed error on facts, so also in law and therefore the impugned order be quashed and set aside.

6. Mr.Anandjiwala, learned senior advocate and Mr.Goswami, learned advocate for one of the accused (Mr.R.M.Solanki) has made the following submissions.

6.1 Learned senior advocate for the petitioner has drawn the attention of this Court to the provisions of Section 195, read with Section 340 of Cr.P.C, which according to him, is applicable in the present case, since charge sheet has been filed for the offence under Sections 365, 294(b), 506(1), 193, 195, 196, 203, 211, 220, 327, 342, 344, 120-B and 114 of the Indian Penal Code and Sections 32(b), 58, 59, 22, 8(c) and 20(b) of the NDPS Act and Sections 25(1) BA and 29 of the Arms Act and Section 13(1) (c) of the Prevention of Corruption Act. It is submitted that, the Sessions Court ought to have discharged the accused from all the offences.

6.2 It is further submitted that since the provision of Section 195 of Cr.P.C. is attracted in this case and the Sessions Court having accepted the said argument, discharged the accused Page 5 of 53 HC-NIC Page 5 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT from all the offences. It is submitted that accepting the case the of accused for discharge, in part, is erroneous and the Sessions Court should have discharged the accused completely. It is submitted that all the offences are interconnected and integral part of the same transaction and therefore, the said offences cannot be separated and split up and the bar under Section 195 of the Cr.P.C. is applicable to all the offences.

6.3 Learned senior advocate has further submitted that, it is the prosecution case that, the contraband narcotics which was shown to have been seized from the original accused i.e. Vinubhai Ratilal Parmar at Junagadh was taken from the offence, which was registered with ATS Police Station, bearing C.R.-I No. 01 of 2005 on 09.02.2005, wherein certain accused were arrested with narcotics contraband and in the said case, charge sheet was filed and one of the accused namely Manoj B. Patel, who was Investigating Officer, was also member of raiding party. The said Sessions Case is registered being Sessions Case No. 153 of 2005 before the Sessions Court, Ahmedabad. In the said case, Investigating Officer i.e. Manoj Patel had filed an application that the witness V.P. Vyas who was the first informant and a member of raiding party had given a false evidence before the court of law, therefore, the proceedings be initiated against him. Learned Sessions Court while acquitting the accused had held that inquiry is required to be conducted and necessary observations were made. It is submitted that at present the said inquiry is being pending.

6.4 Learned senior advocate has further submitted that it is the prosecution case that looking to the Evidence of Mr.V.P. Page 6 of 53 HC-NIC Page 6 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT Vyas in the aforesaid case i.e. Sessions Case No. 153 of 2005, 15 kg. Narcotics was seized. During the proceedings, in the said Sessions Case, before the Sessions Court, Ahmedabad, all the prosecution witnesses had said that, the narcotics seized was 15 kg, however in the present case, it is the prosecution case that 1 kg. Narcotics was removed, when the aforesaid raid was carried out and the same was seized. It is submitted that if it was so then it should be 14 kg. of Narcotics, which is not so. It is submitted that this vital part should weigh in favour of the accused in this case.

6.5 Learned senior advocate has further submitted that, if after inquiry, Sessions Court finds that narcotics substance was taken out, then the court will file appropriate complaint, therefore also, the present proceedings are not maintainable. In fact the competent Court for initiation of proceedings is the Sessions Court, Ahmedabad and not the District and Sessions Court, Ahmedabad (Rural) where the charge sheet has been filed.

6.6 Learned senior advocate has further submitted that, it is the case of the prosecution that the arms and ammunition, which have been allegedly shown to have been recovered from the accused Vinubhai Parmar, was also planted, however though the Investigating Officer has filed summary report, till date the said summary report has not been accepted by the Trial Court at Junagadh. It is submitted that therefore also, filing of charge sheet against the accused is without jurisdiction.

6.7 Learned senior advocate has submitted that in the Page 7 of 53 HC-NIC Page 7 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT present case, the charge sheet ought not to have been filed in the Sessions Court, Ahmedabad (Rural), but an application along with report was required to be filed before the Junagadh Court, for filing of complaint under Section 340 of Cr.P.C.

6.8 Mr.R.J.Goswami, learned advocate (for the accused Mr.R.M.Solanki) has adopted the arguments of learned Senior advocate Mr.Aanadjiwala, as noted above, and has further addressed the Court at length and has relied on the following authorities.

(1) (2014) 12 SCC 100 - Central Bureau of Investigation, Lucknow, Uttarpradesh Vs. Indra Bhushan Singh and Others.

(2) (2011) 10 SCC 696 - Abdul Rehman and Others Vs.K.M.Anees Ul Haq.

(3) (2003) 11 SCC 251 - M.Narayandas State of Karnataka and Others.

(4) (1998) 2 SCC 391 - State of Punjab Vs. Raj Singh and Another.

(5) (2014) 5 SCC 377 - Perumal Vs. Janaki.

(6) Order of this Court dated 05.02.2015 in Criminal Misc. Application No.820 of 2015.

(7) Order of this Court dated 23.12.2014 in Criminal Misc. Application No.19986 of 2014.

Page 8 of 53

HC-NIC Page 8 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT 7.1 Mr.Chapaneri, learned advocate for the applicant of Criminal Misc. Application No.585 of 2012 (Mr.Manoj Patel), has invited the attention of this Court to the provisions of Section 195 of the Cr.P.C. and has submitted that, in the case like this, in absence of any complaint being ordered to be registered in relation to the offences narrated under clause (b) of sub- section (1) of Section 195 of the Code of Criminal Procedure, 1973, no cognizance could be taken save and except on the complaint being ordered to be filed by the Court or by a superior Court to which that Court is subordinate. It is submitted that in the present case, the Court of the Chief Judicial Magistrate, Junagadh or Special Judge, Junagadh have not ordered to register a complaint for the offences referred to in clause (b) of sub-section (1) of Section 195 of the Code and therefore no cognizance of the impugned charge-sheet No.212 of 2006 being a supplementary charge sheet No.1 in connection with C.R.No.I-131 of 2005 of Sabarmati Police Station could have been taken by the In-charge Special Judge of Ahmedabad (Rural). It is submitted that the impugned charge sheet and its cognizance, as have been taken, is barred by the provisions contained in Section 195 of the Criminal Procedure Code. It is submitted that the impugned charge- sheet deserves to be quashed and set aside. It is submitted the applicant had given an application for discharge in the case in question and the same was rejected, however later on, other co-accused had filed discharge applications before the Sessions Court being Exh.195 and 203 and both the applications were partly allowed. It is submitted that the said accused are discharged from the offences punishable under Section 193, 195, 196 and 211 of Indian Penal Code.

Page 9 of 53

HC-NIC Page 9 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT 7.2 It is further submitted that if C.R.No.I-131 of 2005 dated 29.03.2005 registered at Sabarmati Police Station, along with report dated 13.02.2006, perused, on the bare reading thereof, it is apparent that the case for the offences under N.D.P.S. Act under the Arms Act were registered as a fake case against the said accused viz., Vinubhai Ratilal Parmar at the instance and at the behest of the accused No.1 Mr.R.M.Solanki to settle his dispute of monitory gain and/ or claim in respect of sale transaction of the land of revenue survey No.76/1 of village Bodakdev and to settle the said dispute. It is stated that a conspiracy is hatched to book him in a fake case and in furtherance of the said conspiracy, the other offences punishable under the provisions of Sections 294(b), 365, 5061), 193, 195, 196, 203, 211,220, 327, 342, 344, 120(b) and 114 of the IPC have been complained of and, therefore none of the offences can be charged against the present accused, as it can not be split from the complaint for a separate offence, in the facts and circumstances and the material collected and produced during the investigation and, therefore, as per the settled legal position, there is clear bar of the provisions of Section 195(1)(b) of the Criminal Procedure Code, 1973 and complaint, as a whole, including the charge sheet impugned, deserves to be quashed and set aside, in absence of any complaint being directed to be filed for these offences and/or the offences punishable under Sections 32(b), 55, 58, 59, 8(c), 22 and 29 of the N.D.P.S. Act. It is, therefore submitted that the impugned complaint together with the proceedings and the charge sheet impugned being charge sheet No.212/06 being supplementary charge sheet No1 in connection with C.R.No.I- 131/2005 registered at Sabarmati Police Station, be quashed Page 10 of 53 HC-NIC Page 10 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT and set aside.

7.3 It is further submitted that on the face of the record and on bare reading of the charge sheet that there is a seer misuse and abuse of process of power and authority invested into a Police Officer, authorizing him to investigate, including arrest and charge sheeting in misuse of the discretionary powers invested in him under the provisions of Chapter XII of the Criminal Procedure Code, 1973 including Sections 172 and 173 of the Code, the impugned act, action and conduct in implicating the petitioner as an accused, without there being any material or a substantive piece of evidence, save and except the statement of few police personnel, that too, according to learned advocate for the applicant, apparently false, fabricated, concocted and distorted and contrary to the evidence tendered by them before the competent Court while trying the relevant cases, wherein it has been stated that the seizure memos, Panchnamas and their complaints narrate true and correct facts, as to the quality and shape of the contraband article in respect of the cases booked by him previously. It is submitted that the applicant has been falsely implicated without there being any material, save and except the statements of the police officers, with whom the applicant had no good terms and against whom the applicant in past had submitted a report to the higher authorities for instituting disciplinary proceedings. It is submitted that the investigating officer has acted arbitrarily, maliciously and has submitted the charge sheet in colourable exercise of the powers vested in him, suffering from malice in fact as well as in law and therefore also the impugned complaint, proceedings, together with the impugned supplementary charge-sheet deserves to Page 11 of 53 HC-NIC Page 11 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT be quashed and set aside.

7.4 Mr.P.C.Champaneri, learned advocate has relied on the following authorities.

(1) 1997 (2) GLH 637 - Miteshchandra Manilal and Ors. Vs. State of Gujarat & Ors.

(2) (1977) 4 SCC 39 - State of Bihar Vs. Ramesh Singh.

                  (3)      (2014) 5 SCC 377 - Perumal Vs Janki.


                  (4)      (2014)   12   SCC        100       -     Central         Bureau           of

Investigation Lacknow, Uttar Pradesh Vs. Indra Bhushan Singh and Others.

(5) AIR 1984 SC 1108 - Ramji Bhikha Koli and Ors Vs State of Gujarat.

8. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds that following two points have cropped up for consideration before this Court. The first point is divided into three parts as noted in Para 8.1.1 to 8.1.3, and the second point is as noted in Para-8.2 here under.

8.1.1 Firstly, whether the impugned order passed by the Sessions Court is sustainable, or requires interference by this Court.

Page 12 of 53

HC-NIC Page 12 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT 8.1.2 If the answer to the above is that, yes it needs to be interfered with, then at whose instance and to what extend it needs interference. i.e. whether the contention of the State is to be accepted that, the Sessions Court ought not to have discharged the accused even from the charge under Sections 193, 195, 196 and 211 of the Indian Penal Code, or 8.1.3 Whether the contention of the accused (Mr.R.M.Solanki) is to be accepted that, not only the discharge in part - as ordered by the Sessions Court is legal, but further that, he should have been completely discharged from the offence in question i.e. from the proceedings in connection with C.R.-I No.131 of 2005 registered at Sabarmati Police Station, Ahmedabad.

8.2 Secondly, whether the proceedings in question, i.e. the proceedings in connection with C.R.-I No.131 of 2005 registered at Sabarmati Police Station, Ahmedabad needs to be quashed, either in rem or qua one of the accused (Mr.Manoj Patel) as prayed for by him in Criminal Misc. Application No.585 of 2012.

9. Before the rival contentions, on the above points are gone into by this Court, it needs to be recorded that, the investigation qua the offence in question, which ultimately turned out to be against senior police officer(s) of the State, was initiated at the instance of this Court. The circumstances leading to the initiation of the proceedings in question and the subsequent developments, which have direct bearing on the present matters are noted as under.

Page 13 of 53

HC-NIC Page 13 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT 9.1 Firstly, reference needs to be made to the first order recorded by this Court on Special Criminal Application No.445 of 2005 being order dated 04.04.2005. A citizen named Vinodbhai (Vinubhai) Ratilal Parmar did not return home and went missing. His brother Bhanubhai Ratilal Parmar gave written intimation to the Sabarmati Police Station in this regard on 28.03.2005. Next day i.e. on 29.03.2005, his another brother Kanubhai Ratilal Parmar lodged an FIR with the Sabarmati Police Station, being CR-I No.131 of 2005 against Hansraj Shekhawat and unknown person for offences under Sections 294(b), 365 and 506(1) of the Indian Penal Code. Smelling something very fishy, one of the brothers of the victim approached this Court complaining that his brother viz., Vinodbhai (Vinubhai) Ratilal Parmar (the victim) is missing, and according to him, something very serious has happened to him, including false implication by the police officers in a drugs case, for extraneous considerations. Since very serious allegations were made, including against senior police officer, after putting the said petitioner on terms, including that if the allegations are turned to be false, heavy cost upto Rs.50,000/- shall be imposed on the petitioner, to which the petitioner agreed, notice was issued by this Court. The said order reads as under.

"1. Heard Mr.F.B. Brahmbhatt, learned counsel appearing on behalf of Mr.A.R. Bhatt for the petitioner. The petitioner is permitted to join Mr.R.M. Solanki, Dy.S.P., A.T.S., Ahmedabad. Necessary amendment be carried out forthwith.

2. Before passing the present order, during the Page 14 of 53 HC-NIC Page 14 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT hearing of the submissions, a pointed query was raised by the Court to Mr.F.B. Brahmbhatt, learned counsel appearing for the petitioner, and he was intimated that in view of the nature of allegations made in the petition as well as in the documents annexed with the petition (Annexures: B,C and E), if it is found that false and serious allegations have been made then this Court may fasten a heavy cost upon the petitioner, of any amount upto Rs.50,000/-. Mr.Brahmbhatt on instructions has submitted to the Court that the petitioner is interested in independent and transparent investigation into the matter and has agreed to pay cost if the allegations are found baseless and false; and he has left the point of cost to the Court.

3. The Court has considered the contents of the petition and the documents produced along with the petition. Today the petitioner is permitted to tender a xerox copy of the criminal complaint registered vide C.R. No.II-03 of 2005 with A.T.S. Police Station, Ahmedabad, allegedly occurred on 29th March, 2005 at about 23-00 hours at Junagadh.

4. Notice for final disposal, returnable on 29th April, 2005. The formal service of notice is waived by Ms.N.V.Joshi, ld.APP, on behalf of the respondent-State.

Page 15 of 53

HC-NIC Page 15 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT

5. In view of nature of allegations made in the application made to the Home Minister, State of Gujarat and other higher-ups of police department, signed and sent by the petitioner- Bhanubhai Ratilal Parmar, who is the real brother of the accused-Vinodbhai Ratilal Parmar of the crime in question (i.e. the alleged criminal wrong committed at Junagadh) and the fact that the responsible higher officials including the Commissioner of Police, Shahibaugh, Ahmedabad, were intimated by Bhanubhai Parmar much prior to the event allegedly occurred at Junagadh, certain order need to be passed as an interim arrangement.

6(i) The Court is of the view that the allegations made against Mr.R.M.Solanki, Dy.S.P., A.T.S., Ahmedabad, are serious in nature and this officer probably is authorized to operate in the entire State. So the Director General of Police, State of Gujarat, shall see that under the direct supervision and monitoring of the highest officer dealing with the A.C.B. cases i.e. Director of A.C.B. be entrusted with the complaints and allegations made by the petitioner-Bhanubhai Parmar against Mr.R.M. Solanki, Dy.S.P., A.T.S., Ahmedabad, are investigated thoroughly.

6(ii) The Director General of Police shall also see that the investigation of the crime in question registered with A.T.S. Police Station, Page 16 of 53 HC-NIC Page 16 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT Ahmedabad, is taken from the said Mr.R.M. Solanki and the investigation of the same is handed over to the officer not below the rank of D.S.P. and especially from the department which has no direct link with the A.T.S. operation and activities.

6(iii) If any other or new complaint is registered against Vinodbhai, then such complaint may not be entrusted for investigation either to the said Mr.R.M. Solanki or to any officer who is at present and never in past remained subordinate to Mr.Solanki in the department and the same be handed over to any independent officer not below the rank of Dy.S.P. and senior in cadre to Mr.R.M. Solanki that the Director General of Police may decide.

7(i) If possible, the statements of accused- Vinodbhai Ratilal Parmar, present petitioner and the persons close to these two brothers, be recorded at the earliest by a very responsible officer and the details may be gathered as to the activities done by the accused-Vinodbhai Ratilal Parmar and on behalf of Mr.R.M. Solanki and other senior police or other Government officials.

7(ii) Certain cellular phone numbers also have been referred to in the application and the complaint; and it would be advisable to have the print outs of relevant cellular phones including Page 17 of 53 HC-NIC Page 17 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT the cellular phone number and land line telephone number of Mr.R.M. Solanki, if he is having any cellular phone either in personal capacity or in the capacity of a Government officer, also be obtained. The Registry with a view to help the Director General of Police shall tender xerox copy memo of petition along with the annexures and other documents, in two sets. The respondent-

State may also enlarge the scope of investigation, if more police officers are found involved.

8. The Director General of Police shall see that the progress made by his machinery is reported to this Court and such report is made available to the Court at regular intervals. The first progress report be tendered to the Court on 29th April, 2005.

Notice to Mr.R.M. Solanki be sent through the Commissioner of Police, Ahmedabad City, and the others be served through the Court."

9.2 Pursuant to the above order of this Court, the investigation was assigned to one Mr.Subhash Trivedi, Dy. Commissioner of Police, Ahmedabad City, by the Director General of Police.

9.3 Finally, the said petition i.e. Special Criminal Application No.445 of 2005 and number of other matters, arising from or connected with the incident in question, filed by different persons, including Special Criminal Application No.289 of 2006 Page 18 of 53 HC-NIC Page 18 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT filed by Mr. R.M.Solanki, were considered and disposed of by this Court by a common judgment dated 30.04.2008.

9.4 Relevant paragraphs of the said decision reads as under.

" 31.3 From the above, it can be seen that Shri R.M. Solanki has not made out any case for recalling investigation already carried out and for wiping out the effect of interim order which has operated out. Even otherwise, I do not find that the investigation carried out by the Investigating Officer is shown to be otherwise faulty or misdirected. Since the trial is yet to commence, not to adversely affect any side or to cause prejudice to any of the parties, I refrain from making any further observations in this regard. Suffice it to say no case for quashing the investigation is made out. It is true that this Court in the interim order dated 4.4.2005 had referred to the two cases filed against Shri Vinubhai Parmar under the NDPS Act as well as Arms Act for transfer of investigation and there was no direction for change of investigating agency with respect to the complaint filed before Sabarmati police station by brother of Shri Vinubhai Parmar for kidnapping against Hansraj Shekavat and unknown persons. However, DGP who otherwise has powers to transfer the investigation finding that three cases having close Page 19 of 53 HC-NIC Page 19 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT connection, if decided to transfer the third case also to the same investigation officer, I see no procedural impropriety or legal defect in such an order.

32. ......

33. Insofar as Special Criminal Application No.445/2005 is concerned, by virtue of interim order dated 4.4.2005 and subsequent change of Investigating Officer and completion of investigation and in view of the fact that I do not find any reason to recall the interim order or to quash the investigation carried out pursuant thereto, the prayers made therein stand virtually granted.

34. With respect to Special Criminal Application No. 531/2005 also since investigation of the third case filed before Sabarmati police station by brother of Vinubhai Parmar also having been entrusted to Shri Trivedi by DGP without any orders from this Court, the prayers made therein do not survive.

35. In view of the orders that I propose to pass, Criminal Misc. Application No. 6742/2006 in Special Criminal Application No.445/2005 would not survive.

36. Since learned advocates for the Page 20 of 53 HC-NIC Page 20 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT parties had addressed the Court only with respect to the said proceedings, remaining matters which are part of this group need to be placed before appropriate Court for further hearing.

37. In the result, following order is passed :

1) Special Criminal Application No.289/2006 is dismissed.

2) Special Criminal Application No.445/2005 stands allowed by making interim order dated 4.4.2005 absolute and final.

3) Special Criminal Application No.531/2005 in view of completion of investigation by another agency has become infructuous and disposed of accordingly.

4) Criminal Misc. Application No. 10549/2006, Special Criminal Application No. 2106/2006 and Special Criminal Application No. 1576/2006 be placed before appropriate Court for hearing.

5) In view of order passed in Special Criminal Application Nos. 289/2006, 445/2005 and 531/2005, Criminal Misc. Application No. 6742/2005 does not survive.

With these directions, Special Criminal Applications Nos. 289/2006, 445/2005 and Page 21 of 53 HC-NIC Page 21 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT 531/2005 and Criminal Misc. Application No. 6742/2005 are disposed of."

9.5 The above quoted judgment has attained finality.

10.1 On investigation, it is found that, and the charge sheet is accordingly filed in the competent Court to the effect that, victim Vinubhai was falsely implicated in the drugs case and arms case by the Police Officers (led by Mr. R. M. Solanki) of the Anti-Terrorists Squad of the State of Gujarat, for extraneous reasons and they need to be tried for the same.

10.2 The above referred charge sheet, filed in the Competent Court against the accused, is on record, which this Court has taken into consideration. The said charge sheet in substance, reads as under. (It is noted that the below quoted is the translation (from Gujarati) of column No.5 of the charge sheet).

"Offence u/s 365, 294(B), 506(1), 193, 195, 196, 203, 211, 220, 327, 324, 344, 120(B), 114 of the I.P.C. and u/s 32B(b), 58, 59, 22 8(C), 20(B) of the N.D.P.S. Act, u/s 25(1) BA, 29 of the Arms Act, u/s 13(1)(C) of P.C. Act in such a way that:

out of accused persons mentioned in the column no. 1 and 2, accused no. 1 R.M. Solanki, Dy.S.P. shown in the column no. 1, had been discharging his duty in A.T.S., Ahmedabad city. Victim Vinubhai Ratilal Parmar, happens to be distant relative of him and he knows him for long time. Vinu Ratilal Parmar has been working as a broker in respect of selling and purchasing land. Earlier the accused R.M. Solanki had been discharging his duty as Police Inspector at Page 22 of 53 HC-NIC Page 22 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT Sabarmati Police Station. During that period, Hitendra @ Jitu Barot was a friend and partner of R.M. Solanki and as he has good relations, they had purchased land bearing survey no. 76/1 admeasuring 6000 yards located at Bodakdev belonging to Bhikhaji Kalaji Thakor in partnership for Rs. 65 lakh. The sale deed in respect of the said land was executed in the name of Raghunathsinh Barot, the father of Hitendra @ Jitu Barot. But, because of legal objection, it could not be executed. R.M. Solanki had to pay Rs. 32, 50,000/- for partnership for the said land. He did not pay the same. Therefore, he had altercation with witness Vinu Ratilal Parmar in that regard. Therefore, accused R.M. Solanki misused his position when he was in charge of S.P. while working in the A.T.S. and with an intention to cause harm to the witness, he prepared proposal on 28/02/05 to put mobile no. 9898335599 of the victim in interception and gave false information to the superior officer misusing his position. In furtherance of his intention, phone of victim was placed for interception on 04/03/05, fabricated false fact that victim is associated with gang war and land mafiya gang and fabricated false evidences and got his mobile tapped. Though victim did not talk anything with Raysing Thakor, he has made efforts to connect victim with land mafiya gang fabricating false information. He hatched conspiracy with a view to get the victim Page 23 of 53 HC-NIC Page 23 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT implicated in the offences which may punish him for life imprisonment and sent his son-in law Hansaraj @ Tiklo Mangalsinh Shekhavat, residing at Morarnagar society, Jawahar Chowk, Sabarmati, to the house of victim at about nine o'clock in the morning on 27/03/05. There was a social function at his house and at that time, Hansaraj Shekhavat went to the house of victim by Eterno vehicle and informed victim that Mr. Solanki has called you for outstanding money of the land. By stating so, victim was forcefully made to sit in his Indica car bearing registration no. GJ 6 JJ 9216 and Hansaraj Shekhavat also got into the car and brought victim to the chamber of R.M. Solanki parking the vehicle in the lane near the main gate of ATS office. Mr. Solanki abused victim and threatened him, misused his position, called witness Sukhubha and Babu Rohit in his chamber and ordered them to collect ornaments worn by victim from his body, mobile, watch and key of vehicle and kept them in his custody and locked him up in A.T.S. office, ordered victim not to meet any one and thus harassed him. The said fact has been found during the investigation. On obtaining print out of mobile phone of accused R.M. Solanki, Hansaraj Shekhavat, Vinu Parmar, it appears that both accused persons remained in the contact of each other and satellite locations have been found showing their presence as per the link of incident. The presence of accused persons and witness Vinu Ratilal Parmar has been found in Page 24 of 53 HC-NIC Page 24 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT A.T.S. office on the said day. It clearly appears that intention of accused R.M. Solanki was to cause financial loss to the victim and confine him illegally. On 28/03/05, R.M. Solanki misused his position and informed his personal staff P.C. J.P. Nagarani, P.C. Sunil Pavaskar, S.R.P. witness Agravat and other staff persons to take victim to Vadodara from lock up through government car bearing registration no. GJ 1 G 4022 and with a view to create false location of victim, sent them to Vadodara and as mobile phone of the victim was left with him, he sent P.S.I. Vaghela to Khatraj to give mobile and instructed to switch on the mobile phone after reaching Vadoara and thereby he made efforts to create false location. As brothers of the victim came to know about his abduction and mobile of victim was found switched off on the said day, they informed Sabarmati Police Station in respect of missing of witness Vinu Ratilal Parmar as they felt that victim has been trapped in the conspiracy of someone. Therefore, it appears that the accused has created false location sending victim to Vadodara and got his mobile phone switched on there. R.M. Solanki sent accused Nagarani, Vaghela and Vinodbhai and victim to Junagadh and Nagarani was given charas and weapon and with a view to get false procedure made, he sent accused P.I. V.B. Raval and Sunil Pavaskar, Ravindra Makwana along with panchas to Junagadh. Though no incriminating article was found from victim near Page 25 of 53 HC-NIC Page 25 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT Yadunandan vaadi near Ajevadi gate situated near Junagadh Railway Station, R.M. Solanki planned raid in such manner that charas and weapon given by him have been recovered from the victim, got false complaint registered and panchnama drawn in order to implicate victim in the offence which may render him ten years imprisonment. Manoj Patel, serving as Dy.S.P. in A.T.S., was first sent to Junagadh to investigate the said offence, but as false case of charas/weapon was registered against the victim, Dy.S.P. Manoj was called back from Bagodara in order to get the said offence investigated as per his wish. At that time, his personal and trustworthy P.I. Vadiya had been returning to Ahmedabad from Bhavnagar. At that time, R.M. Solanki talked with him over telephone and informed him to take over investigation and sent Marshall jeep of A.T.S. to Bagodara through driver Dhulji Manji Baranda and P.I. B.D. Vadiya directly went to Junagadh from Bagodara by Marshall jeep for investigation and got investigation papers prepared as per his wish and got false remand of victim obtained. During this investigation, it appeared that Mansukhbhai Nanjibhai Shekhda, residing at 65, Subhashnagar, Ghod Dod road, Surat, who was the classmate of P.I. I.N. Desai serving in the A.T.S., had earlier purchased land bearing survey no. 999 on the outskirt of village Dummas from land owner Ahir. But, as land owners were not paid fully, the said land was sold to Hanubhabha and Malde of Page 26 of 53 HC-NIC Page 26 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT Kutiyana and sale deed was executed in favour of them. Mansukh Shekhda gave application in the A.T.S. in order to get the said land back. The investigation of the said application was handed over to P.I. V.P. Vyas and efforts were made to get investigation done as per his wish pressurizing V.P. Vyas during the said investigation, but as he did not investigate as per his wish, R.M. Solanki sent his personal and trustworthy P.I. B.D. Vadiya to Surat to make investigation of the said application and to hand over possession of the invaluable land situated in Dummas village to Mansukh Shekhda. The land owner of Surat Bhagubhai Chhimkabhai Ahir was illegally abducted from his house and beaten and brought to A.T.S. office and confined illegally there and harassed, threatened at gun point, pressurized and efforts were made to return the land to Mansukh Shekhada. The other land owners and Mansukh Shekhda were called at Ahmedabad on 11/03/05 and they were made to stay at Classic Gold Hotel. They were called at A.T.S. office on 12/03/05 and threatened to give possession of land to Mansukh Shekhda and got false case registered. They were also threatened to be put in lock up permanently. On the said day, victim Vinu Ratilal Parmar was called near Tragad patiya through his son-in law Hansaraj Shekhavat and victim was brought to A.T.S. by the vehicle. The victim was threatened and intimidated. It appears that the object of accused was to cause harm to Page 27 of 53 HC-NIC Page 27 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT victim at any cost. He talked with victim over mobile phone on 17/03/05 and called him in A.T.S. Office and had altercation with him in respect of land bearing survey no. 76/1 situated at Bodakdev. The said fact has been clearly found in the CD kept for interception and mobile print. Therefore, it is proved that the accused R.M. Solanki had discord in respect of Bodakdev land. The brother of victim got offence of abduction registered at Sabarmati Police Station during the remand. As Investigating officer PSI Kuvadiya came to A.T.S. for investigation of the said offence, R.M. Solanki called victim in his chamber and threatened him to give statement as dictated by him in connection with offence of abduction. If he does not do so, he was threatened with encounter. The false statement was recorded before PSI Kuvadiya through accused B.D. Vadiya and Vinod Chhaganlal Patel and land owner of survey no. 999 of Dummas village of Surat Hanubhabha and Malde were made to admit that they are members of Chhota Rajan Gang and their network work for usurping land in Surat and they are main accomplice in the charas case. The efforts have been made to get illegal benefit from them. Giving enticement to victim that he would be released giving benefit of 169 for this offence arresting other accused, effort has been made to engage private advocate, and in furtherance of his object, he sent P.I. Vadiya and Nagarani to Zanzaraka for investigation and Page 28 of 53 HC-NIC Page 28 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT effort has been made to tarnish the image of religious leader Shambhunath Maharaj after talking about telephone record and pressurize him. In order to include names of Hanubhabha and Malde with gang war, press note was published in the Sandesh newspaper of Surat Edition and names of Hanubhabha and Malde were shown as main accomplice of false case of charas and effort has been made to blackmail them. The said names have revealed later on during his investigation. The malafide intention of accused persons is clearly found behind revealing these names.

It has been found during my investigation that accused R.M. Solanki and A.T.S. Dy.S.P. Manoj Patel took out some Charas of "Laddu"(round) shape which he seized from the suitcase found on 09/02/2005 at Shahwadi, Gyaspur Patiya from the possession of Kashimiris during the investigation of the offence under N.D.P.S. act registered earlier vide III- Cr.R.No.-01/2005 and kept the same with him and three illegal weapons were seized from Naran alias Natu Sanz near Modasa Meghraj. After bringing him to the office of ATS, he was set free due to unknown reason without carrying out any legal procedure. Manoj Patel kept those weapons with him. As R.M. Solanki demanded the said charas and weapon from Manoj Patel two or three days back before registration of offence, Manoj Patel gave charas, which was taken out by Page 29 of 53 HC-NIC Page 29 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT him, in the plastic bag to his driver Baldev Jitendrasinh Rajput and asked him to get it weighed. Therefore, witness Baldevsinh went to Mahalaxmi Provision Store belonging to Madanlal Khatri situated near A.T.S. office and got it weighed. Out of charas quantity, one kg and 200 grams of charas was taken separate and remaining charas was given to take out in other paper. As per instruction, after getting charas weighed in the presence of witnesses, as he returned the same to accused Manoj Patel after weighing, he went to the office of main kingpin R.M. Solanki and gave 1 k.g. and 200 grams of charas packed in the plastic bag and weapon, which was kept with him illegally. R.M. Solanki kept the said charas with him and gave the same to his personal staff co-accused Jayprakash Nagarani at about eight o'clock in the night on 27/03/05 and the said charas was planted in the Indica car bearing registration no. GJ 6 JJ 9216 of the victim, which was parked near the main gate of A.T.S. office and instructed co-accused Nagarani to make fake number plate having passing of Junagadh. Therefore, co-accused Nagarani took Indica car from A.T.S. office to his house and planted charas and weapon in the dickey of Indica car. On 29/03/05, the accused R.M. Solanki instructed accused persons Nagarani, Vaghela and Vinodbhai to take victim out of lock up and made them leave for Junagadh along with 975 grams of charas, 7.65 mm country made pistol and 9 nos of cartridges, Page 30 of 53 HC-NIC Page 30 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT which were given to Nagarani. In order to make false procedure, accused P.I. V.B. Raval, Sunil Pavaskar, Ravindra Makwana were made to leave for Junagadh along with panchas. Though no incriminating article was recovered from victim near Yadunandan vaadi near Majevadi gate near Junagadh Railway Station, effort has been made to implicate victim for the offence, which may render him ten years imprisonment after planning in such a way that charas and weapon given by R.M. Solanki has been recovered from the victim and lodging false complaint and drawing false panchnama. As accused R.M. Solanki was main kingpin and being officer in this case, he misused his position and kept officers and employees working under him deprived of true facts, included himself in this conspiracy and remained absent on paper in the entire chapter. Though he was present at A.T.S. office, Ahmedabad on 29/03/05, in order to conceal the same, to save himself from false case and to show himself present at Palanpur, he made his writer Vinod Patel fill the logbook of the vehicle falsely and used government vehicle falsely for his own interest and caused loss to the government. It has been revealed during my investigation that loss has been caused to the government using the vehicle for his own interest. It has also been revealed during my investigation that accused R.M. Solanki was P.I. at Sabarmati Police Station earlier and at that time, he misused his position Page 31 of 53 HC-NIC Page 31 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT for his own interest and got land belonging to Govind Keshavlal Matlavala situated at Acher given to Chandansinh Champavat and when he had been discharging his duty at Dholka, in order to get his outstanding money, he made his friend Hitendra @ Jitu Barot a false complainant and got case filed in the court and got the said case investigated by Head Constable of his police station, got Bharatbhai Arvindbhai Dave abducted, detained him illegally, and got him brought to Ahmedabad through his staff and got money recovered from him and filed final report for the said offence and released the accused and committed offence in furtherance of his intention. Thus, accused R.M. Solanki has misused his position for his own interest in the past also. As per the aforesaid facts, Vinubhai Ratilal Parmar implicated in the entire incident is a victim and R.M. Solanki has hatched conspiracy misusing his position. The sale deed of land bearing survey no. 76/1 of Bodakdev was executed in the name of Raghunathsinh Barot, but the same could not be completed due to legal objections. It is established that they were relatives in the past. When accused no. 2 Virendra Raval, Police Inspector, had been discharging his duty under the administrative control of accused R.M. Solanki, on 29/03/05, as per instruction of R.M. Solanki, he got panchas as stated by accused Nagarani along with ATS personnel and made entry in the station diary Page 32 of 53 HC-NIC Page 32 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT regarding tip-off though the same was not given. The said officer/employees got into Indica car of victim and went to Junagadh Railway station and believed from the statement of Nagarani that charas and weapon have been recovered from the victim and found that victim Vinu Parmar has committed offence near Majevadi gate chowky near Yadunandan vaadi gate. Though no incriminating article has been found from the victim during personal search and he has not conducted any such personal search, he accordingly got necessary papers prepared and registered case against him. Without conducting any kind of inquiry of him, he has been made complainant of false case. He has abetted accused Solanki to implicate victim in the offence, which may render him ten years imprisonment. Though he came to know about details of false case, he has not informed superior officer in that regard and abetted main accused for his conspiracy to be successful. Though he was aware of law, he has abetted in the false case showing ignorance. Whereas accused no. 3 Jayprakash Nagarani is personal staff of main accused Solanki and he made Hansaraj Shekhavat abduct victim from his house on 12/03/05 and he brought him to Tragad patiya and at that time, he abetted main accused Solanki to bring him to A.T.S. office and he came to know about the fact that victim was abducted from his house and put into lock-up in the A.T.S. office. He was aware that the dispute regarding land between the Page 33 of 53 HC-NIC Page 33 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT victim and the main accused Solanki was going on and on 27/03/2005 at 08:00 PM, he was called by Solanki in his office and there, he was given weapon and illegal Charas. After receiving weapon and illegal Charas, he planted these things into Indica car of the victim and drove the car of victim to his house after obtaining key of that car and he kept that car ther. On 28/03/2005, R.M.Solanki got the victim released out of the lock-up and told the accused of the present case Nagarani and other staff persons to take the victim of the present case to Vadodara. As per direction of R.M.Solanki, Nagarani-the accused, took the victim to Vadodara to create his false location by showing false excuse. During this period, he remained in contact with R.M.Solanki through phone. After reaching Vadodara, he switched on the mobile phone of the victim to create his false location. Thereafter, in the night, he brought the victim back and confined him illegally in the lock-up of the ATS. On 29/03/2005, as per the plan of R.M.Solanki, the accused of the present case Nagarani brought Charas and weapon given to him by Solanki and Indica car of the victim through his personal driver and parked the car near main gate complex in dark. Thereafter, the victim was brought out of lock-up and along with co-accused Vaghela and Vinodbhai, he left for Jungadh with charas and weapon. His confidants were kept as panch for false case. Thereafter, he planned a false raid Page 34 of 53 HC-NIC Page 34 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT near Yadunandan farm, Majewadi gate, Junagadh to the effect that the Charas and weapon, which were brought by him, are found from the possession of the victim though in actual, these things were not found from the victim. He got the papers of complaint panchnama prepared keeping Police Inspector V.B.Raval in dark and he has attempted to make the victim to act as per his whims by stating him that, "it would cost 15 lakh to him(victim) to engage a lawyer". He has abetted the main accused to fulfill his motive by taking him alongwith co-accused Vadiya-the P.I., to Limbadi on 02/04/2005 for an investigation to show the presence of the victim away from Ahmedabad. He remained in company with P.I. B.D.Vadiya during that investigation and went to Shambhunath Maharaj-the religious priest of the victim at Zanzarka and there he threatened and tried to tarnish his image as a spiritual leader by telling him the false facts of telephone recording and thus, he has made an attempt to get illegal benefits out of it. Having taken over the charge of this investigation, he has played main role in serving the motive of the main accused R.M.Solanki by making an attempt to pressurize main witnesses to give false deposition. On 28/03/2005, as per direction of R.M.Solanki, after bringing the victim out of lock-up, the accused No-4 Sunil Pavaskar, along with co-

accused Nagarani and other staff persons, took the victim to Vadodara by showing false reason to Page 35 of 53 HC-NIC Page 35 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT create false location and thus, Sunil Pavaskar abetted the main accused by acting as per his direction. Thereafter, on 29/03/2005, after coming back to the ATS, as stated by co-

accused Nagarani, he called trustworthy panchas regarding false case against the victim and went to Junagadh with false complainant. There, the victim was taken near Yadunandan farm from Railway station and false raid was conducted there to show that offensive articles were found from the possession of the victim though in actual they were not belonging to the victim. Thus, he has abetted in carrying such false raid. When he knows that false case is going to be lodged, it is his duty to inform superior officer orally or in written about it. But, instead of doing such, he made an attempt to prove false case as real one and thus, he has abetted R.M.Solanki to serve his motive to implicate the victim in false case where he (the victim) can be awarded punishment of 10 years. He has also made an attempt to make the witnesses of present case dictate false statement by visiting their house. Whereas, on 28/03/2005, as per direction of main accused R.M.Solanki, the accused No.5 Pradumansinh Vaghela, had gone to Khatraj cross road to give the mobile phone of the victim to the co-accused Nagrani. Though the victim was seen with Nagrani, he went to Junagadh in Indica Car of victim in the early morning on 29-03-2005, and despite there being no any offensive article Page 36 of 53 HC-NIC Page 36 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT found from the possession of victim, he colluded in filing the false case by keeping Charas and weapons in advance and showing it in the car in which he went. Despite knowing that the false case being filed, the complainant of this case P.I. - Mr. V.B. Raval should have been prevented from giving the complaint and it should be tried to convey the true fact, but, such procedure has not been carried out, and the false case has been filed against the victim himself. As he knew the entire details, he denied to remain as a complainant. He was also knowing the information that, the victim was threatened by the co-accused persons in A.T.S. He had also tried to show his presence at another place tampering the log book of the government vehicle in which they went to give the Mobile phone at Khatraj Cross Road. When the accused person - Manoj Patel was in Junagadh, he made a phone call to Vaghela in the afternoon time on 29-03-2005 and stated that, the Charas which is used in this case is given by me only. Though it was stated, and as he knew that the false case has been filed against the victim. It was his duty to inform the Superior Officers in written or oral. But he did not act in that way and abetted the main accused R.M. Solanki in carrying out his ill intention by implicating victim in the offence which may punish him for 10 years and tried to prove the false case as true. When accused no. 6 - Vinod kumar Patel went to give food to Mansukh Patel who was detained in Page 37 of 53 HC-NIC Page 37 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT another case in the A.T.S. Lock-up on 27-03-2005, he had seen the victim in A.T.S. Lock-up. They knew each other from the beginning, as the vicim often used to come to meet R.M. Solanki. Dispite that, the victim was taken out from the lock-up at about 05:00 o' clock in the morning on 29-03- 2005 and went to Junagadh in his Indica Car. Though the Charas and the weapons seized in case were in the car in which he himself went, the papers were prepared showing such that, they were found out from the possession of victim. It was his duty to inform the true fact to the complainant of this case, but, the procedure was not carried out accordingly. Though no any offensive article was found from the victim, the case was shown on the paper by carrying out false raid and thus he had abetted the main accused Mr. R. M. Solanki in carrying out his ill intention to implicate the victim in the offence punishable for the sentence of 10 years. The main accused Mr. R. M. Solanki did not go to Palanpur on 29- 03-2005, but after I took the charge of this offence, after a month, he made the driver of Government vehicle write false entry in the Log Book and thus, tampered the government record and tried to shield the main accused. Though he knew the fact that the false case is being registered against the victim, it is his duty to inform the Superior Officers in oral or in written. Instead of carrying out such procedure, he has tried to make the false case as true. He had also colluded Page 38 of 53 HC-NIC Page 38 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT in dictating the false statement of the victim in the offence of abduction registered in the Sabarmati Police Station. The accused no. 7- Ravindra Makwana had colluded the main accused - R. S. Solanki for assisting him in carrying out his ill intention for implicating the victim in the offence punishable for the sentence of 10 years imprisonment by creating false case true by going at Junagadh on 29-03-2005 with the complainant of this case - P.I.- V.B. Raval and showing that the Charas and weapons have been found from the victim in Junagadh. Further, he went to Surat with P.I. - B.D. Vadiya for the investigation of the complaint and abetted him by illegally abducting the land owners of Surat and brought them in A.T.S. It is his duty to inform orally or in written to the Superior Officers on knowing the information about the false case against the victim. But he did not do so and abetted the co-accused. The accused no. 1 (shown in column no. 2) - Hansraj Shekhawat who is the nephew-in-law of the main accused R.M. Solanki of the case. He was helping Mr. Solanki in the business of land transaction. He purchased the land of 6000 yards of survey no. 76/1 located in the outskirts of Bodakdev which was of the partnership of Mr. Solanki and Jitubhai Barot. Mr. Solanki did not pay the amount of land of his part. Earlier, the deed of the said land was executed by Vikrambhai Gadhvi of Town - Bela, Taluka - Dhandhuka, District - Ahmedabad. With a Page 39 of 53 HC-NIC Page 39 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT view to usurp that land, Mr. Solanki threatened and purchased that land and did not pay commission to the broker and directly sold the land to Dhiru Raja. As the victim was demanding his money from Mr. Solanki, the accused no. - 1 brought the victim as per the say of Mr. Solanki from his house to Tragad Patiya on 12-03-2005 under the pretext of co-operating him and with an ulterior motive of getting other benefits. He sat in the vehicle of victim, brought him in A.T.S. and threatened him and thereby abetted the offence. He involved himself in the conspiracy of Mr. Solanki, went to the house of victim on 27- 03-2005 at about 09:00 o' clock and as there was a social function at the residence of victim, despite that, he insisted the victim saying that Mr. Solanki calls you for giving money. He sat in the Indica Car of victim, took him at A.T.S. Office and after parking the vehicle, brought him in the chamber of Mr. R. M. Solanki. Though he played important role in abduction of victim by bringing him at his office fulfilling the object of conspiracy wherein Mr. Solanki threatened the victim and confined him in the lock up, he dictated false statement before P.S.I. - Kuvadiya of Sabarmati Police Station. When the accused no. 2 - B.D. Vadiya of this case (shown in column no. 2) had been discharging his duty as Police Inspector in A.T.S. Office, he was the personal and trustworthy person of the main accused R.M. Solanki. At his instance, he directly took over Page 40 of 53 HC-NIC Page 40 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT the investigation of the application of Mansukh Shekhda residing at Surat. In order to return the land of village - Dummas worth crores to Mansukh Shekhda, he took over the investigation, which was not related to A.T.S., and went to Surat for investigation. As per the instruction of accused Solanki, the land owner of Surat - Bhagubhai Chhimkabhai Aahir was illegally arrested, beaten and brought to A.T.S. Office where he was illegally confined, harassed and threatened on gun point. He was pressurized to alienate the land of Surat in the name of Mansukh Shekhda. I. N. Desai called Mansukh Shekhda and land broker - Paresh Aahir from Surat to Ahmedabad on 11-03- 2005, and made them stay at Classic Gold Hotel on his reference. On the next day, they were called in the A.T.S. Office and introduced to accused R.M. Solanki, and as per his instruction, this accused has made efforts to alienate the land of Surat in the name of Mansukh Shekhda at any cost beating the broker and land owners. He has made efforts to connect the land owners of Dummas village with the gang recording false statements in connection with investigation of the aforesaid application. When he was at Bhavnagar on 29-03-2005, Manoj Patel was first informed to take over the investigation of this false case at 13:00 hrs. After calling him on the way and deciding to hand over the investigation to the accused Vadiya with certain motive, while he had been coming from Bhavnagar to Ahmedabad, Page 41 of 53 HC-NIC Page 41 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT Government vehicle was called to Bagodra and he directly went to Junagadh from there. As decided earlier, necessary facilities have been provided after deciding the place in respect of registering false case against the victim. After taking over the investigation of the false case of charas and weapon against the victim and without making any inquiry of the witness in this case, he had recorded statements as per his own whims. Even though the victim Vinu Parmar had stated the facts to him, he had not informed his superior officer regarding the same. He had caused harassments by obtaining remand of the victim by misusing his position and by silencing the victim in furtherance of the intention of the main accused. He had succeeded in getting back 50 per cent share from the land of Mansukh Shekhada. An offence was registered against the victim at Sabarmati Police Station and he had helped in recording the Statement as per his own whims in presence of the investigating officer Kuvadiya and he had got the names of Hanubhabha and Malde written in said Statement. Even though he was aware that whatever he is doing is wrong, he had carried out such procedure with an intention to defend himself and he had misused his position to implicate the innocent persons. On 2/4/2005, he had taken the victim to Limdi for investigation, but he had not made such note regarding the investigation and that shows his ulterior motive. Moreover, on 4/4/2005, he had gone to Surat with Page 42 of 53 HC-NIC Page 42 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT the victim for investigation and conducted investigation of Hanubhabha and Malde, and thus, to pressurize them and after going to Zanzarka, he had talked with the religious priest of the victim Shambunath Maharaj about wrong telephone record and tried to pressurize him and to spoil his image as religious priest with an intention to get illegal benefit. Even though an order has been passed to hand over the investigation of this case to me, no procedure was carried out at the relevant time and the higher officer was also not informed and he had kept the investigation with him till 28/4/2005. After I had taken over the investigation of this case, the witnesses in this case have been pressurized to give wrong Statements and in order to fulfill their common intention, he has tried to implicate the victim in an offence punishable for the imprisonment of 10 years. Law protectors have become law breakers. Manoj Patel, Dy.S.P, the accused No. 3 as shown in column No. 2, in collusion with R. M. Solanki, placed some Charas of "Laddu"(round) shape in a plastic bag and wrapped it with string of jute, which he seized from the suitcase found on 09/02/2005 at Shahwadi, Gyaspur Patiya from the possession of Kashimiris during the investigation of the offence under N.D.P.S. Act registered earlier vide III-Cr.R.No.-01/2005 and three illegal weapons were seized earlier from Naran Sanz near Modasa. He was brought to the ATS and he was set free due to unknown reason without Page 43 of 53 HC-NIC Page 43 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT carrying out any procedure. Manoj Patel - accused in this case had kept these weapons with him and as R.M. Solanki had demanded said weapon and charas two-three days before registration of said offence, out of charas and weapon kept with him illegally, Manoj Patel had got charas weighed through his driver and gave 1 kilogram 200 grams of charas, 7.65 bore pistol, and 9 cartridges of 7.65 bore pistol to main kingpin. Solanki had kept said weapon and charas in his possession. Victim Vinubhai Ratilal Parmar was abducted through his relatives in respect of land dispute. He was brought to ATS office, threatened and put into lockup and he gave charas and weapon received from Manoj Patel to his personal staff co-accused Jayprakash Nagrani in the night on 27/3/2005. The said charas and weapon were taken to Junagadh on 29/3/2005 and false cases were registered against victim. In furtherance of the conspiracy of the main accused, Manoj Patel had provided such Muddamal as may render the victim imprisonment of 10 years. At 1 p.m. on 29/3/2005, Manoj Patel received instruction from Solanki to take over investigation of false case registered against victim at Junagadh in connection with charas and weapon. While he had been heading for taking over investigation, R.M.Solanki called him back from Bagodara. Investigation of false case was handed over to Vadiya and though he was aware of facts of the case, he has made efforts to conceal the same. He has been involved in the Page 44 of 53 HC-NIC Page 44 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT conspiracy of main accused by not informing the superior officer and complainant. As per the Panchnama of this offence, the accused was arrested from his Indica car near Majevadi gate, Yadunandan Vadi and Dy.S.P. Manoj Patel was aware of the same. It was established that R.M.Solanki informed him to take over investigation of the offence before occurrence of offence and the said offence was falsely registered. Manoj Patel- Dy.S.P. abetted R.M.Solanki in his conspiracy though as visitation officer it was his duty to find out the truth and he was also well aware about the lodgment of false case. It gets proved clearly by the evidence. He helped in turning false case into real one by paying false visitation of false case, so that, the victim may be punished for ten years and for that, he also provided muddamal which has been shown as found from the possession of the victim.

In the present case, the accused persons shown in column Nos. 1 and 2, got Vinu Ratilal Parmar abducted from his house to resolve dealing regarding land and thereafter, he was brought to ATS and in order to serve his evil intention, R.M.Solanki forcefully taken ornaments and key of the car misusing the power of his post and put the victim into the lock-up at ATS by illegally arresting him. R.M.Solanki made false representation regarding the victim before the superior officer and thus, he got the mobile number of the victim to put on observation and to Page 45 of 53 HC-NIC Page 45 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT connect him with land mafias though he was an estate agent. He prepared false papers about seizing Charas and weapon from the possession of the victim though in actual, they were not found from him. Thus, they abetted each other in implicating the victim in an offence which may render him imprisonment of ten years by pressurizing him to confess."

10.3 For the above charge, the accused police Officer Mr.R.M.Solanki was arrested and was denied bail by the Sessions Court. Subsequently bail was granted by this Court vide order dated 30.06.2006 recorded on Criminal Misc. Application No.4985 of 2006. This was challenged by the State by filing SLP (Criminal) No.3428 of 2006, which was disposed of by the Supreme Court on 30.03.2009 in the following terms.

"We do not find any ground to interfere with the impugned order.

The Special Leave petition is, accordingly, dismissed.

The Trial Court is directed to conclude the Trial within a period of one year from the date of receipt / production of copy of this order."

10.4 The said trial is not concluded so far, and number of interim applications are filed by the accused, including for discharge. This is done more than once. Reference to some of those proceedings is already made / being made in this order.

Page 46 of 53

HC-NIC Page 46 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT In this chain of filing applications after applications, Exh.195 (in Special NDPS Case No.1 of 2006) was given by Mr.R.M.Solanki. On the said application, the impugned order is passed by the Trial Court on 03.12.2011, the details of which are noted in para:2.

11. The chronology of events indicates that, the accused, for obvious reasons, have not permitted the trial to proceed. Though the accused are well within their rights to defend themselves and are also entitled to take all contentions available in law, the fact has remained that, inspite of the direction of the Supreme Court of India in SLP (Criminal) No. 3428 of 2006 (order dated 30.03.2009) to the effect that the trial shall be concluded within a period of one year, it is still at this stage, as to whether the discharge should have been allowed or not. The attempts on the part of the accused, to frustrate the direction of the Supreme Court of India, so also the investigation ordered by this Court, need to be curbed. Additionally, even on merits, the accused were not entitled to any relief, even to the extent, which is granted by the Trial Court. This is so, for the following reasons.

12. The impugned order dated 03.12.2011 is passed by the Sessions Court below Exhs.195 and 203 in Special (NDPS) Case No.1 of 2006. These two applications were filed under Section 227 of Cr.P.C, for discharge by two accused persons on the ground that the prosecution is barred by Section 195 of Cr.P.C. By the impugned order, the Sessions Court has held that the prosecution of the accused persons, for the offences under Sections 193, 195, 196 and 211 of I.P.C. is barred by Section 195 OF Cr.P.C. The Sessions Court therefore, allowed the Page 47 of 53 HC-NIC Page 47 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT above referred two applications and discharged the accused from the charge of Sections 193, 195, 196 and 211 of IPC, whereas for remaining Sections, the charge sheet is maintained. It is noted that prior thereto, similar attempt was made by the accused before the Trial Court and also before this Court but the accused had not succeeded. Reference needs to be made to (i) the order of this Court in Special Criminal Application No.3152 of 2011 vide order dated 01.12.2011 and (ii) similar application given by the accused (Mr.R. M. Solanki) Exh.194 and the dismissal thereof by the Sessions Court vide order dated 17.08.2011 at Exh. 194. This Court further finds that, in the impugned order (at Para-4), there is discussion about the previous application Exh.100, which was withdrawn, but while exercising jurisdiction, the Sessions Court has referred (at Para-9), to the order below Exh.116. This can not overcome the statutory bar under Section 362 of Cr.P.C. In totality, this Court finds that, the Trial Court fell in error, in the facts of the case, by ordering piecemeal discharge, qua particular Sections, on technical grounds, more particularly, in the chronology noted above.

13.1 Further, there are three separate FIRs. One FIR with ATS Police Station is under NDPS, second FIR with ATS Police Station is under the Arms Act and the third FIR by the brother of the victim at Sabarmati Police Station. On investigation it has turned out that the first two FIRs were concocted to frame the victim, but at the same time, at Ahmedabad also an FIR being CR - I No. 131 of 2005 was registered with Sabarmati Police Station and the investigation of this FIR revealed the actual framing and arrest of Vinu Ratilal Parmar. Under these circumstances, when the offence was already registered at Page 48 of 53 HC-NIC Page 48 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT Sabarmati Police Station, no proceedings were pending in any Court and therefore, the offence in question is not an offence which can be said to have been committed in, or in relation to any proceedings in any Court. For this reason the bar under Section 195 of Cr.P.C. will not be attracted in this case. At this stage, reference needs to be made to the decision of the Supreme Court of India in the case of Sachida Nand Singh and Another Vs State of Bihar and Another reported in (1998) 2 SCC 493. Para:6, 7 and 8 thereof, read as under.

"6. A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a Court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference?

7. Even if the clause is capable of two Page 49 of 53 HC-NIC Page 49 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT interpretations we are inclined to choose the narrower interpretation for obvious reasons.

              Section          190        of       the       Code         empowers             "any
              magistrate            of       the         first        class"          to       take

cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the Court with a complaint is to that extent curtailed.

              It        is          a       well-recognised                      canon               of
              interpretation               that          provision          curbing              the
              general          jurisdiction                 of       the         court         must

normally receive strict interpretation unless the statute of the context requires otherwise (Abdul Waheed Khan v. Bhawani).

8. That apart it is difficult to interpret Section 195 (1)(b)(ii) as containing a bar against initiation of prosecution proceedings merely because the document concerned was produced in a court albeit the act of forgery was perpetrated prior to its production in the Court. Any such construction is likely to ensue unsavoury consequences. For instance, if rank forgery of a valuable document is detected and the forgerer is sure that he would imminently be embroiled in prosecution proceedings he can simply get that document produced in any long- drawn litigation which was either instituted by himself or somebody Page 50 of 53 HC-NIC Page 50 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT else who can be influenced by him and thereby preempt the prosecution for the entire long period of pendency of that litigation. It is a settled proposition that if the language of a legislation is capable of more than one interpretation, the one which is capable of causing mischievous consequences should be averted. Quoting from Gill v. Donald Humberstone & Co. Ltd. Maxwell as stated in his treatise (interpretation of Statutes, 12th Edn., p. 105) that "if the language is capable of more than one interpretation we ought to discard the more natural meaning if it leads to unreasonable result and adopt that interpretation which leads to a reasonably practicable result". The clause which we are now considering contains enough indication to show that the more natural meaning is that which leans in favour of a strict construction, and hence the aforesaid observation is eminently applicable here."

13.2 Considering the chronology of events, as emerging in the present case, and the proposition of law noted above, this Court finds that none of the contentions on behalf of any of the accused can be accepted and further that the Authorities relied by learned advocates for the accused will not take the case of any of the accused any further.

14. On conjoint consideration of what is noted above, this Court arrives at the following conclusions, qua the points noted in Para-8.1 and 8.2, as under.

Page 51 of 53

HC-NIC Page 51 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT 14.1 The impugned order passed by the Sessions Court is unsustainable, on facts and in law and therefore the same needs to be interfered with by this Court.

14.2 The contention of the State needs to be accepted that, the Trial Court ought not to have discharged the accused even from the charge under Sections 193, 195, 196 and 211 of the Indian Penal Code.

14.3 As the necessary consequence, the contentions of the accused (Mr.R.M.Solanki) (as noted above) and the consequential relief as asked for by him that, not only the discharge in part - as ordered by the Sessions Court is legal, but further that, he should have been completely discharged from the offence in question i.e. from the proceedings in connection with C.R.-I No.131 of 2005 registered at Sabarmati Police Station, Ahmedabad, needs to be rejected.

14.4 The proceedings in connection with C.R.-I No.131 of 2005 registered at Sabarmati Police Station, Ahmedabad need not be / can not be quashed, either in rem or qua one of the accused (Mr.Manoj Patel) as prayed for by him, in Criminal Misc. Application No.585 of 2012.

15. For the reasons recorded above, the following order is passed.

15.1 Criminal Revision Application No.111 of 2012 filed by the State is allowed.

15.2 Special Criminal Application No.619 of 2012 filed by the accused (Mr.R.M.Solanki) is dismissed.

Page 52 of 53

HC-NIC Page 52 of 53 Created On Thu Dec 29 00:37:51 IST 2016 R/CR.RA/111/2012 CAV JUDGMENT 15.3 The impugned common order dated 03.12.2011 passed by the Sessions Judge, Ahmedabad (Rural) on the applications Exhs.195 and 203 in Special NDPS Case No.1 of 2006, given by the accused, Mr.R.M.Solanki and Mr.V.B.Raval respectively, is quashed. Those two applications are dismissed.

15.4 Criminal Misc. Application No.5858 of 2012 (filed by Mr.Manoj Patel) for quashing of C.R.-I No.131 of 2005 registered at Sabarmati Police Station, Ahmedabad, which has culminated in the trial in question i.e. Special NDPS Case No.1 of 2006 in the Sessions Court, Ahmedabad (Rural), is dismissed.

(PARESH UPADHYAY, J.) M O Bhati/01

16. After the pronouncement of this judgment, learned advocates for the accused have requested that the stay against the trial which is operating at present, be continued for some time. Considering the totality, and with a view to see that, challenge if any to this order remains meaningful to the accused, the request made on their behalf needs to be accepted. It is ordered that the Stay against the trial be continued for a period of four weeks from today.

(PARESH UPADHYAY, J.) M O Bhati/01 Page 53 of 53 HC-NIC Page 53 of 53 Created On Thu Dec 29 00:37:51 IST 2016

Unlock Advanced Research with PRISMAI

Gujarat High Court