Gujarat High Court
Dr. Bipin Shantilal Panchal vs Pruthviraj Alias Aniruddhsingh M. ... on 30 April, 1998
Equivalent citations: 1999CRILJ214, (1998)3GLR551
ORDER A.K. Trivedi, J.
1. Heard learned Senior Advocate Mr. R. K. Shah appearing for the petitioner. Rule. Learned Advocate Kiran R. Jani with Senior Advocate B. B. Nayak having appeared in response to the notice issued to Respondent No. I has waived the service of rule. Similarly, learned Advocate Mr. M. R. Gahani who has appeared in response to the Notice issued to respondent No. 2 has waived service of Rule. Learned APP Mr. A J. Desai has waived service of rule on behalf of respondent No. 3. By eonsent of the parties, the mailer is finally heard.
2. The petitioner is the original accused No. 2 of a Session Case No. 162 of 1994, which is pending at present in the Court of Additional City Sessions Judge, Ahmedabad, Court No. 10. Respondent No. 2 is the original complainant, on whose complaint, said Session Case No. 162 of 1993 has been registered under the provisions of Sections 21, 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as "NDPS Act"). The petitioner has challenged the legality, validity and propriety of order dated 12th May, 1997 passed by learned Additional City Sessions Judge. Ahmedabad. Court No. 10, below Exhibit 99 in the proceedings of Session Case No. 162 of 1994. That vide impugned Order learned Additional Sessions Judge has discharged present respondent No. 1 who was arraigned as accused No. 8 in the proceedings of said Session Case No. 162 of 1994 under Section 319(1) of Cr. P.C., 1973.
3. That on receipt of intelligence report, the Officers of Directorate of Revenue Intelligence (DRI for short) raided the Warehouse at International Airport. Bombay on 4-11-1993 and under a panchnama seized a consignment lying at air cargo which was to be exported through Kenya Airways. That on investigation; said consignment was found to be containing 162 Kgs. Methaqualone tablets which is also known as "Mandrex Tablets". That the Officers of DRI started further investigation as said consignment was found to be containing contraband material under the provisions of NDPS Act. That on further investigation, the Officers of DRI also seized another consignment from an abandoned ambassador car found on Gandhinagar Mehsana Highway on 12-1-1994. That the said consignment contained 166.750 Kgs. of Mandrex tablets. Similarly, on 13-1 -1994, Officers seized the consignment from the godown of Gota village containing 1489.6Kgs. Mandrex tablets. That the Officers of DRI recorded statements of various persons during the investigation and on completion, filed a complaint in the Court of City Sessions Judge. Ahmedabad against (I) Achint Navnitbhai Patel. (2) Dr. Bipin Panchal, (3) Arvind Shivlal Soni, (4) Prahalatbhai Maganbhai Patel, (5) Revabhai Kheinabhai Patel. (6) Kashyap Arunbhai Patel, (7) Piyush Mulshankar Pandya, and some other persons.
That the said case is registered as Sessions Case No. 164 of 1994 under the provisions of NDPS Act.
4. It may be noted that during the investigation, the Officers of DRI also interrogated present respondent No. I and the respondent No. 1 has been cited as one of the witness in the said complaint.
5. That the proceedings of Session Case-No. 162/94 was notified for framing of charge on the cause list of Addl. City Sessions Judge. Ahmedabad, Court No. 15. That pending the further proceedings, present petitioner had moved an application - Exhibit 17 in the said proceedings under Section 319(1) of the Code of Criminal Procedure, 1973 (here in after referred to as the "Code"). It was prayed in the said application that the present respondent No. I along with one Amrutbhai Soni and Bimal Amrulbhai Soni be summoned before the Court under Section 319 of the Code; and be directed to face the same charges that may be framed against present petitioner and other accused of said Sessions Case No. 162 of 1994. It appears from the record that learned Addl. City Sessions Judge, Ahmedabad, Court No. 15 fixed the said application for hearing. Thai on behalf of prosecution, it was submitted that a departmental inquiry against present respondent No. I, said Amrutbhai Soni and Bimal Amrut Soni was pending and on conclusion of inquiry, the department shall take decision whether said persons should be prosecuted along with accused of Session Case No. 162 of 1994 or not. That learned Addl. City Sessions Judge passed order dated 10th Nov. 1995 directing the Department to complete the said inquiry on or before 15th Dec. 1995 and posted the matter for further order on 15th December. 1995. It also appears from the record that learned Addl. City Sessions Judge. Ahmedabad. Court No. 15. heard the said application further and passed further order on 4th January, 1996. whereby application was partly allowed, directing to issue non-bailable warrant against present respondent No. 1; Aniruddhsingh Jadeja as well as Amrutbhai Soni alias Mama for offence made punishable under Sections 22 and 29 of the NDPS Act, 1985 read with Section 120B of the IPC. That application in respect to Bimal Amrutbhai Soni was rejected. That the certified copy of the said order is produced on record vide page No. 24 to 36 of the compliation filed by the petitioner. That perusal of the said order suggests that the trial Court has construed the documents produced with the complaint in the context of submissions urged at Bar. That in consideration of the statements of present petitioner, Bipin Panchal and one Anchit Patel as recorded under Section 67 of NDPS Act; the Court held that there is a prima facie case against present repondent No. 1 and Amrutlal Soni to proceed against them under Sections 22 and 29 of the NDPS Act; read with Section 120B of I.P. Code, and that they should be tried in the said Sessions Case along with others accused.
6. It may also be noted that non-bailable warrant issued against present respondent No. 1 could not be served but could be served on said Amrutial Soni. That thereby the Court framed charges against said Amrutlal Soni and other original seven accused. That Amrutial Soni, challenged the legality and properiety of the above stated order passed by learned Additional City Sessions Judge, Ahmedabad, Court No. 14 in exercise of power conferred vide Section 319(1) of Cr.P.C. 1973 as well as the order to frame charges against him vide Criminal Misc. Application No. 4000/96 and Criminal Revision Application No. 300/96; respectively filed in the High Court of Gujarat. That both the matters were heard together and vide common judgment and order dated 31-1-1997; both the petitions are rejected. That as such the above stated order adding respondent No. 1 and said Amrutbhai Soni as accused of Sessions Case No. 162/94 has been confirmed by the High Court.
7. It further appears from the record that, present respondent No. 1 moved an application in the High Court of Gujarat to claim anticipatory bail in respect to non-bailable warrant issued aginst him under the above stated order. That vide order dated 8-4-1997, the respondent No. 1 was taken into custody and released on bail with certain conditions.
8. That in the meanwhile the proceedings of the Sessions Case No. 162/94 was posted before the Court of Addl. City Sessions Judge, Ahmedabad, Court No. 10: whereby the respondent No. 1 moved the above stated application Exhibit 99 to claim discharge from the offences alleged against him which has been decided vide impugned order.
9. Shri R.K. Shah, learned Sr. Advocate appearing for the petitioner has assailed the impugned order by contending :-
(a) That the impugned order is illegal and without jurisdiction in as much as; the transfer of the proceedings from the Court of Addl. City Sessions Judge, Ahmedabad, Court No. 14; after the framing of charge to the Court of Addl. City Sessions Judge, Ahmedabad, Court No. 10; is in violation of the provisions of Section 409(2) of the Code and settled proposition of law.
(b) That the impugned order is not only contradictory to the previous order passed by learned Addl. City Sessions Judge, Ahmedabad, Court No. 14, under Section 319(1) of the Code but in effect it amounts to revision of the same which is impermissible under the law.
(c) That the Court has erred in construing the scope of Section 227 of the Code and has exceeded the extent of permissible jurisdiction by considering the probative value of the evidence apparent from the material produced on the record.
10. As against that Shri B.B. Naik learned Sr. Advocate appearing for the respondent No. 1 has supported the impugned order by contending that the Court has exercised the discretion by holding that the material produced on record does not disclose any independent evidence to furnish a reasonable probability of conviction. That the confession statements of the co-accused cannot be said to be a substantive evidence providing foundation to base a conviction. That the Court 'having considered the broad probilities of the case, the total effect of the evidence and the documents produced before the Court; including the basic infirmity of only evidence as being the statement of accomplice; the superior Court should not disturb the finding based on well reasoned order. Shri Naik has also submitted that some of the judgments referred to and relied on behalf of petitioner has no binding effect as the contrary views expressed in the judgments cited by him are rendered by the bench of three Judges as against the Judgments of two bench. That in the event of conflicting views expressed by the bench of equal number of Judges which cannot be reconciled by harmonious construction, the view expressed by the bench later in time should prevail.
Dated 4th May, 1998
11. That in the matter of Musa Mahammad Malek v. State of Gujarat reported vide 1995 (1) Guj LR 845, this Court having relied on observations made in the case of Ratilal Bhanji v. State of Maharashtra reported vide AIR 1979 SC 94 : 1979 Cri LJ 41, held that the trial in a warrant case starts with the framing of charge. That prior to it proceedings are only an inquiry. That thereby the Sessions Judge has no power to withdraw the proceedings from the subordinate Court to him after the framing of the charge under Section 409(2) of the Code. However in the instant case, it appears from the record that the proceedings of Sessions Case No. 162 of 1994 was posted in the cause list of Court of Additional City Sessions Judge, Ahmedabad, Court No. 10 from the Court of Additional City Sessions Judge, Ahmedabad, Court No. 14 on account of administrative order passed by learned City Sesions Judge and not under the provisions of Section 409(2) of the Code. It may be noted that as per the procedural practice followed at City Sessions Court, Ahmedabad under the provisions of Ahmedabad City Civil Court Rule, 1961, the business of civil work as well as criminal work is being allotted to the Court of City Civil and Additional Sessions Judge by Principal Judge, who is also a City' Sessions Judge, by rotation at periodical interval. That orders of allotment of Sessions case to the Court of Additional City Sessions Judge, Ahmedabad does not amount to assign a case to a subordinate Court by the Sessions Judge. That in the instant case as the Court of Addl. City Sessions Judge, Ahmedabad, Court No. 14 had completed the turn of criminal work and was assigned other business and as such the proceedings of Sessions Case No. 162/94 was allotted to the Court of Addl .Sessions Judge, Ahmedabad, Court No. 10 and thereby it cannot be said to be a withdrawal of session case within the meaning of Section 409(1) of the Code. In view of the said facts and circumstances, first submission advanced by learned Senior Advocate Shri R.K. Shah on behalf of the petitioner cannot be merited to hold that transfer of proceedings of Sessions Case No. 162/94 being in violation of the provision of Section 409(2) of the Code and the settled proposiiton of law, the impugned order is illegal and without jurisdiction.
12. That in the matter of State of Himachal Pradesh v. Krishnal Lal Pradhan reported vide AIR 1987 SC 773 : 1987 Cri LJ 709, the Supreme Court has observed vide para 7 of the judgment that once a predesessor judge found that the material produced before the Court make out a prima facie case against the accused person regarding offences alleged, the successor Judge cannot reconsider the material and hold that there is no ground to proceed against the accused person and discharge the accused because in effect it amounts to review of the earlier order which is impermissible under the provisions of Code. That on close scrutiny of facts involved in the said matter, it appears that such observations are made in view of the facts involved in the said case only and has not been made to settle a rule of law. That in the instant case, present respondent No. 1 along with said Amrutbhai D. Soni were subsequently added as accused of Session Case No. 162 of 1994 under the provisions of Section 319(1) of the Code. That in view of provisions contained vide Sub-section (4) of Section 319, the successor Judge has to commence the proceeding afresh in respect to subsequently added accused persons and as such the trial Court is justified in hearing application-Exhibit 99 moved by present respondent No. 1 as accused No. 8 of the said case before framing charge against him. That in order to frame charge, it was necessary for the Court to consider the material placed before it and as such though in effect the impugned order amounts to review of earlier order passed by predecessor Judge under Section 319(1) of the Code, the impugned order cannot be said to be contrary to the provisions of the law because Section 227 of the Code confers a substantive right on the accused to be heard before the framing of a charge against him. Under the circumstances, the second submission as urged by learned Senior Advocate Shri R.K. Shah cannot be accepted to hold that impugned order is bad in law because in effect it amounts to review of the earlier order passed by :the predecessor Judge under Section 319(1) of the Code. However, it may be noted that trial Court should have been cautious before passing the impugned order especially when such order amounts to a contradictory order to the order passed by predecssor Judgp under Section 319(1) of the Code.
13. That on behalf of petitioner as well as respondent No. 1, several authorities are cited at bar in support of the rival submissions urged against the impugned order as well as to support the same. In my opinion, it is not necessary to list out all the authorities submitted by the parties. However, the relevant authority is considered at appropriate stage.
14. That the provisions of Sections 227 and 228 of the Code has been the subject matter of various judicial pronouncements by the Apex Court and almost all the High Courts including this High Court. That in the matter of Union of India v. Prafulla Kumar Samal AIR 1979 SC 366 : 1979 Cri LJ 154, the consensus of the judicial pronouncement is stated vide para 10 of the judgment as under:
Thus, on a consideration of the authorities mentioned above, the following principles emerge :
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
15. It is true that in the matter of State of Karnataka v. Muniswamy reported vide AIR 1977 SC 1489 : 1977 Cri LJ 1125, the Court has observed vide para 10 that for the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses a comparatively wider discretion to the exercise of which it can determine the question whether the material on record, if unrebutted. is such on the basis of which a conviction can be said reasonably to be possible. However, if the said observations are read in the context of facts and circumstances involved in the said matter, it cannot be said to suggest that while applying the judicial mind to the material produced on record, the Court should also apply the strict standard of proof which is normally adhered to at the final stage of the trial, while determining whether there is sufficient ground for proceeding against the accused or not. That in the matter of Satish Mehra v. Delhi Administration reported in 1996 SCC (Cri) 1104, the Court has reiterated said rule vide para 9 of the judgment and has further observed that it is only when the judge is fairly certain that there is no prospect of the case ending in conviction, the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date.
16. That in the instant case, the reasons assigned by the trial Court in the impugned order to discharge present respondent No. I as accused No. 8 of Session Case No. 162 of 1994 suggest that the Court either due to confusion or erroneous approach has applied the strict standard of proof while evaluating the material to ascertain whether there is a prima facie case against respondent No. 1 or not. That in para 7 of the order, the Court has observed as under:
It transpires from the decision of Bhagwan. Swarup Lal Bishan Lal (supra) that Section 10 of the Evidence Act can be made applicable in a case of conspiracy only when the Court is satisfied that there is a reasonable ground to believe that two or more persons have conspired together to commit an offence. In other words, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators. In my view, therefore, statement of the co-accused can definitely be taken into consideration against conspiracy coupled with other offence. However, it is equally important that before that, there must be some independent evidence against whom the charge is to be framed which may substantiate the statement of his co-accused.
17. It may be noted that in the instant case prosecution has made the accusation against the accused persons who have committed the alleged crime in criminal conspiracy with each other. That in the matter of Bhagwandas v. State of Rajasthan reported vide AIR 1974 SC 893 : 1974 Cri LJ 751, the Court has observed that (para 3):
In cases of conspiracy better evidence than acts and statements of co-conspirators in pursuance of the conspiracy is hardly even available.
18. It is also necessary to note that during the investigation, the officers of DRI have recorded statement of various persons under Section 67 of NDPS Act and some of whom are made accused in the complaint filed from which Session Case No. 164/94 has been registered. That the provisions of Section 67 of NDPS Act is analogous to the provisions of Section 108 of Customs Act, 1962. That in the matter of C.P. Pandya v. Motilal Lallu reported in (1980) 21(1) Guj 699, this Court has observed vide para 20 that:
So far as the statement of accused recorded under Section 108 of the Customs Act are concerned, it is settled law that these statements are relevant, admissible and can be acted upon. They are not hit by Section 162 of the Criminal Procedure Code as they are not the statements made to the police officer during investigation of a crime.
Further more, it is also observed vide paras 15 to 19 as under ;
If the statements recorded under Section 108 of the Customs Act are voluntary, truthful and trustworthy; then on these statements alone, an order of conviction can be based against the three accused. It is not necessary that there should be independent corroboration with regard to these statements.
19. Shri B.B. Nayak, learned Senior Advocate appearing on behalf of respondent No. 1 has heavily relied on observations made by Supreme Court in the matter of Haricharan Kumar v. State of Bihar reported vide AIR 1964 SC 1184 : 1964 (2) Cri LJ 344 to contend that it is a decision rendered by larger bench of the Apex Court and thereby prevails upon the decisions rendered by Division Bench of the Apex Court. It is submitted that as per the said judgment, the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. Said submission of Shri Nayak cannot be merited for acceptance on a simple reason that in the instant case when the statement of present petitioner Dr. Bipin Panchal and accused No. 1 Achint Navnitbhai Patel were recorded under Section 67 of the NDPS Act, they were not the accused persons. Further more, the provisions of NDPS Act are expressly given overriding effect over the provisions of the Code and thereby proposition of law stated in the said judgment has no application to the facts and circumstances involved in the present matter. On the said ground, submissions urged by Shri Nayak in respect to theory of precedent and binding effect of the decision rendered by Court of larger bench has no application to the controversy involved in the matter and the authorities cited by him to support the said theory needs no further discussion.
20. In the instant case, the complicity of respondent No. 1 in the criminal conspiracy to commit the alleged crime cannot be ruled out in consideration of prima facie evidence emerging from the material produced on record. Under the circumstances, irrespective of probative value of the said material, there is sufficient ground to proceed against respondent No, 1 for the offences alleged in Sessions Case No. 164 of 1994.
21 On the basis of the above referred discussion, in my opinion, it is sufficient to uphold the legality, validity and propriety of the impugned order and as such it is necessary to set aside and quash the same. As a result, the petition is allowed. The impugned order dated 12th May, 1997 passed by learned Additional City Sessions Judge, Ahmedabad, Court No. 10, below Exhibit 99 in the proceedings of Sessions Case No. 162 of 1994 is, hereby set aside and quashed. Rule is made absolute accordingly. Interim relief granted vide earlier order dated 22-10-1997 is. hereby vacated. No order as to costs.