Gujarat High Court
Rajkumar vs State on 28 October, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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SCR.A/1737/2010 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1737 of 2010
With
SPECIAL
CRIMINAL APPLICATION No. 1903 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
RAJKUMAR
SANGAIAH PANDIYAN - Applicant(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance :
MR
PARTHIV A BHATT for
Applicant(s) : 1,
PUBLIC PROSECUTOR for Respondent(s) : 1,
MR
YN RAVANI for Respondent(s) : 2,
None for Respondent(s) : 3 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 28/10/2010
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) As in both the matters common questions arise for consideration, they are being considered by this common order.
Petitioners of respective both the petitions are co-accused in the charge-sheet filed by CBI against various alleged offenders in connection with I-C.R.No.5/05 dated 16.07.2007 of ATS Police Station, Ahmedabad and thereafter, was registered as separate complaint by CBI after the investigation was transferred under the orders of the Apex Court to CBI. The charge-sheet against the accused concerned including the petitioners herein is filed in Special Case No.5/10 before the learned Additional Chief Judicial Magistrate, Special CBI Court No.2, Ahmedabad (Rural). The petitioners of Special Criminal Application No.1737/10 is the original accused No.2 whereas petitioners of Special Criminal Application No.1903/10 are original accused No.1 and 5 (hereinafter referred to as "petitioners/co-accused" for the sake of convenience). It appears that the original accused No.12 Shri N.K.Amin after filing of the charge-sheet before the learned Magistrate applied for pardon under section 305 of the Cr.P.C. by showing a desire to disclose the whole of the circumstance within his knowledge. The original accused Nos. 1 and 5 resisted the said application under section 306 of Cr.P.C. before the learned Magistrate by filing objections and at that stage, the reference was made by the learned Magistrate under section 395 of Cr.P.C. to this Court on the aspects of constitutional validity of section 306 of the Cr.P.C. vide order dated 26.08.2010. At that stage, the CBI, respondent No.2 herein, challenged the aforesaid order dated 26.08.2010 passed by the learned Magistrate for making reference under section 395 of the Cr.P.C. to this Court. We may record that the reference made by the learned Magistrate was numbered as Criminal Reference No.2/10. This Court vide its judgement dated 07.10.2010 in a petition preferred by CBI challenging the aforesaid order of the learned Magistrate for making reference being Cr.Misc. Application No.10311/10 after hearing both the sides had concluded at para 56 and observed that the power under section 306 of Cr.P.C. are not unguided or arbitrary and the say of the other co-accused are not required to be considered nor they have any role to play when the question is to be considered by the learned Magistrate for grant of pardon, but the co-accused will have right to cross-examine the accomplice witness if his statement has been recorded and a further right to cross-examine in the event such statement is used as an evidence at the time of trial. It was also observed that the learned Magistrate is required to decide the application under section 306 of the Cr.P.c by maintaining the spirit of advancement of interest of justice. It was also observed that the order by the learned Magistrate by making reference is by way of misdirection of exercise of the power and condition for making reference have not been satisfied Ultimately, the order passed by the learned Magistrate was quashed and set aside in exercise of the power under section 482 of the Cr.P.C. Consequently, thereafter by a separate order, Reference No.2/10 also came to be disposed of.
In the meantime, it appears that Special Criminal Application No.1737/10 is filed on 08.09.2010 and Special Criminal Application No.1903/10 is filed on 27.09.2010 before this Court for challenging the constitutional validity of section 306 of Cr.P.C. contending that the same is violative of Articles 14, 19, 20 and 21 of the Constitution of India by invoking the power of this Court under Article 226 of the Constitution.
We have heard Mr.S.B. Vakil with Ms. Archana Archarya and Mr.B.B. Naik with Mr. Parthiv Bhatt, learned counsels appearing for the respective petitioners. Mr.Y.N. Ravani, learned Special Counsel for CBI and Mr.K.P.Raval, learned APP for State of Gujarat have appeared upon the advance copy.
It was contended by the learned counsel appearing for the respective petitioners that the basis of the present petitions is the breach of fundamental rights under Constitution and when such question is raised of constitutional validity, it is the duty of the Court to decide the questions of fundamental right. It was submitted that when the breach of fundamental right is apprehended by the petitioners, they are well within their rights to prefer petition and there is no suggestion or no question is raised on the aspect that the petitions are frivolous. On the aspect of prejudice, it was contended by the learned counsel appearing for the respective petitioners that the petitioners need not wait till the decision is pronounced by the learned Magistrate under section 306 of Cr.P.C. upon the application made by one of the co-accused Shri Amin, accused No.12. The petitioners did take steps for preventing the prejudice by submitting objections to the application and the learned Magistrate had made the reference but the said order of the learned Magistrate of making reference on the aspects of constitutional validity has been set aside by this Court. It was submitted that the accused concerned including the petitioners have carried the matter before the Apex Court and the hearing is being awaited. It was submitted that apart from the aforesaid aspects, when an independent question is raised for challenging the constitutional validity of a statute under Article 226 of the Constitution, this Court may not decline the entertainment of the petition nor the petition can be rejected on the ground that it is not maintainable. It was submitted that if a particular provision of Cr.P.C. which is section 306 in the present case, is unconstitutional or a stillborn, the action based on the same may not be permitted by this Court and the petitioners have therefore locus standi to prefer the present petitions and at present there is a perfect occasion for the petitioners to maintain the petitions by challenging the constitutional validity. It was submitted that if section 306 of the Cr.P.C. is interpreted to mean that co-accused are not required to be heard before grant of pardon, then it would violate Article 14 of the Constitution and the same would be against the settled legal position that all statute which permits exercise of the power are to be read with the principles of natural justice and if they are not read with the principles of natural justice, it would violate Article 14 of the Constitution and the fact situation of the present case are satisfied on the said aspect. Therefore, it was submitted that this Court may consider the petition as maintainable and further process be issued upon all parties to the proceedings.
We may record that this Court for the reasons recorded in the above referred judgement dated 07.10.2010 in Criminal Misc. Application No.10311/10 at para 56 had recorded the following conclusion:
"(a) Section 306 of Cr.P.C., is clear in itself and in view of the various decisions of the Apex Court and also of the other High Courts, including the view expressed by us while interpreting Section 306 of Cr.P.C., there is no unguided or arbitrary power vested to the learned Magistrate but are rather for advancement of the interest of justice.
(b) The say of the other co-accused is not required to be considered, nor they have any role to play when the question is to be considered by the learned Magistrate for grant of pardon after hearing a person applies for pardon and the prosecution or the investigating machinery but all the co-accused will have a right to cross-examination to the accomplice witness if his statement is recorded before the learned Magistrate and will have further right of cross-examination if such evidence is thereafter used by the prosecution at the time of trial for supporting its case or otherwise at the appropriate stage.
(c) The learned Magistrate under Section 306 of Cr.P.C., is required to decide the application made by the A-12, keeping in view the observations made by us in the above referred judgement and more particularly by maintaining the spirit of advancement of interest of justice and in accordance with law.
(d) The impugned order for making reference by the learned Magistrate is by way misdirection of the exercise of power and condition for making reference have not been satisfied."
It may also be recorded that in the said decision, various decisions of the Apex Court as well as of the other High Courts for the inbuilt mechanism under section 306 of Cr.P.C. and the mode and manner of exercise of power by the learned Magistrate under section 306 of Cr.P.C and the observations made on the aspects of constitutional validity of the said provisions have been considered by us in great detail and the same are not required to be repeated or referred to again in the present order.
It is undisputed position that the petitions invoke the power of this Court under Article 226 of the Constitution, which is a discretionary and equitable jurisdiction of this Court under Constitution.
At this stage, we may refer to the decision of the Apex Court in the case of Panchugopal Barua v. Umesh Chandra Goswami reported at AIR 1997 SC 1041 and more particularly the observations made at para 14, relevant of which reads as under:
"14.
Even otherwise, the grant of relief to the respondent even on the principles of "justice, equity and good conscience"
which doctrine appears to have been pressed into aid, was on the facts and circumstances of the case, not permissible. A Court of equity, it should be remembered, must so act as to prevent perpetration of a legal fraud. It is expected to do justice by promotion of honesty and good faith, as far as it lies within its power. A party seeking relief in equity must come to the Court with clean hands." (Emphasis supplied) It was further observed that -
"All the three Courts, including the High Court, found that plea of the respondent to be 'false' in the suit for specific performance filed by the respondent. S. L. P. against the judgment and decree, was also dismissed by this Court. How then could the respondent be found entitled to any relief in equity, when his defence was based on falsehood? We have noticed the conduct of the respondent in denying the title of the appellant herein and putting forward a plea which has been concurrently found by all the Courts to be false. He, therefore, certainly did not come to the Court with clean hands. Thus, even if it be assumed for the sake of argument, that the principles of 'justice, equity and good conscience' underlying the provisions of Section 60 (b) of the Easements Act, could be attracted in a given case in the State of Assam where the Easements Act had not been extended, the conduct of the respondent disentitled him to any relief on the basis of 'equity, justice and good conscience'."
(Emphasis supplied) In State of Maharashtra & Others Vs. Prabhu reported at (1994) 2 SCC 481, at para 4, the Apex Court observed thus -
"4.
Even assuming that construction placed by the High Court and vehemently defended by the learned counsel for respondent is correct should the High Court have interfered with the order of Government in exercise of 486 its equity jurisdiction. The distinction between writs issued as a matter of right such as habeas corpus and those issued in exercise of discretion such as certiorari and mandamus are well known and explained in countless decisions given by this Court and English Courts. It is not necessary to recount them. The High Courts exercise control over Government functioning and ensure obedience of rules and law by enforcing proper, fair and just performance of duty. Where the Government or any authority passes an order which is contrary to rules or law it becomes amenable to correction by the courts in exercise of writ jurisdiction. But one of the principles inherent in it is that the exercise of power should be for the sake of justice. One of the yardstick for it is if the quashing of the order results in greater harm to the society then the court may restrain from exercising the power."
(Emphasis supplied) It was further observed at para 5 in the said decision, relevant of which reads as under:
"Therefore, even if the order of the Government was vitiated either because it omitted to issue a proper show cause notice or it could not have proceeded against the respondent for his past activities the High Court should have refused to interfere in exercise of its equity jurisdiction as the facts of the case did not warrant interference. What could be more harmful to society than appointing the respondent as member of the Board, a position of importance and responsibility, who was found responsible for mass copying at the examination centre of which he was a supervisor. It shakes the confidence and faith of the society in the system and is prone to encouraging even the honest and sincere to deviate from their path. It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good."
(Emphasis supplied) In the case of Union of India v. M/s. C. Damani and Co. reported at AIR 1980 SC 1149, it was inter alia observed by the Apex Court at para 20, the relevant of which reads as under:
"The thorny issue being by-passed for the while, the next question is whether the constitutionality of the Export (Control) Fifteenth Amendment Order, 1979 should be examined closely vis-a-vis pre-ban contracts. Constitutional questions should be considered by courts only when it is absolutely necessary, not otherwise."
In view of the aforesaid legal position, when this Court has already ruled as per the above referred decisions in Criminal Misc. Application No.10311/10, that the say of the other co-accused is not required to be considered nor they have any role to play when the question is to be considered by the learned Magistrate for grant of pardon after hearing the person who applies for pardon and the prosecution or the investigating machinery and all other co-accused will have right for cross-examination to the accomplice witness if his statement is recorded before the learned Magistrate and such accused will have further right of cross-examination if such evidence is thereafter used by the prosecution at the time of trial for supporting its case, no prejudice in law at this stage would be caused to the petitioners herein. When there is no right in law for hearing to be given before exercise of the power under section 306 of Cr.P.C., there is no prejudice to the petitioners who are co-accused. Further, it is not a case where the pardon has been granted, and the statement is recorded and such statement is to be used against the petitioners/co-accused.
As observed earlier, even if it is to be used against the co-accused, the petitioners herein who are other co-accused have a right to cross-examination by way of defence at the appropriate stage and inspite of the same, the attempt is made by way of the present petitions to challenge the constitutional validity of the statutory provisions of section 306 of Cr.P.C., inspite of the position of law being made clear by the above referred decision of this Court that the rights of the co-accused in law are sufficiently protected. Therefore, it appears to us that there is no bonafide purpose on the part of the petitioners. Further, if the challenge to the constitutional validity of the provisions is entertained at this stage, it may result into throttling the process of further investigation at the hands of the party who has all rights under law to defend the case at the appropriate stage. Therefore, it appears to us keeping in view the peculiar facts and circumstances it is just and proper to decline invoking of power of this Court under Article 226 of the Constitution at the hands of the petitioners for such purpose at this stage.
The reliance placed by the learned counsel appearing for the petitioners upon the decision of the Apex Court in the case of Kavalappara Kottarathil Kochunni v. State of Madras reported at AIR 1959 SC 725, is ill-founded inasmuch as in the said case before the Apex Court, it was found by the Court that the person so prejudicially affected by the law should be entitled to the constitutional remedy. As observed by us hereinabove, no prejudice is caused to the petitioners who are co-accused at a stage under section 306 of Cr.P.C. since their rights are sufficiently protected in law as per the observations made by us in Criminal Misc. Application No.10311/10. Therefore, the said decision is of no help to the petitioners.
The reliance placed upon the decision of the Apex Court in the case of Collector of Customs, Madras v. Nathella Sampathu Chetty reported in AIR 1962 SC 316 is also ill-founded inasmuch as it was not a case where the question arose before the Apex Court as to whether under Article 226 of the Constitution, this Court may decline the entertainment of the challenge to the constitutional validity of the provisions of the statute at the instance of the party who is not to suffer any prejudice in law in view of the inbuilt mechanism of the provisions taking all care to maintain right to defend the case in the event such evidence is to be used against him.
The contention that the provisions of section 306 of Cr.P.C. be read with the principles of natural justice, thereby right of hearing of the other co-accused so as to meet with the test of Article 14 of the Constitution is also on a non-existent premise inasmuch as in the above referred decision of this Court, there is no right under section 306 of the Cr.P.C. to be heard of the other co-accused. Further, as observed earlier, there is no prejudice.
In view of the aforesaid, we find that the petitions does not deserve to be entertained in exercise of the discretionary equitable jurisdiction of this Court under Article 226 of the Constitution. Hence, dismissed.
(JAYANT PATEL, J.) (H.B. ANTANI, J.) Further order After the pronouncement of the judgement, Mr.S.B. Vakil as well as Mr.B.B.Naik, learned counsels pray that their clients are desirous to approach before the higher forum against the present decision and therefore, the proceedings before the learned Magistrate be stayed for some time.
We may record that uptil now, no process has been issued nor any interim protection has been granted in the present proceedings. When we have found a case not entertain the petition, such prayer cannot be granted. Hence, declined.
(JAYANT PATEL, J.) (H.B. ANTANI, J.) *bjoy Top