Gujarat High Court
Amrutbhai Narrotambhai Patel vs State Of Gujarat on 28 July, 2022
Author: Samir J. Dave
Bench: Samir J. Dave
R/CR.RA/228/2022 ORDER DATED: 28/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 228 of 2022
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AMRUTBHAI NARROTAMBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR MEHUL H RATHOD(701) for the Applicant(s) No. 1
MR. R. C. KODEKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 28/07/2022
ORAL ORDER
1. Heard Mr. Mehul H. Rathod, learned advocate for the applicant and Mr. R.C. Kodekar, learned Additional Public Prosecutor for the respondent - State.
2. Rule returnable forthwith . Learned APP waives service of Rule on behalf of the respondent - State.
3. By way of this application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant has prayed for the following reliefs:-
"(a) Your Lordships may be pleased to call for the records and proceedings of Criminal Page 1 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 Case no.1384 of 2017 pending before the Ld. Additional Chief Judicial Magistrate, Mandavi, District Surat and after perusing the same be pleased to quash and set aside the impugned order dated 04.09.2021 passed below Exh. 12 of Criminal Case no.1384 of 2017 and further be pleased to order to discharge of the applicant from Criminal Case no.1384 of 2017 pending before Ld. Additional Chief Judicial Magistrate, Mandavi, District Surat;
(c) During the pendency and final disposal of this application, Your Lordships may be pleased to stay the further proceedings of Criminal Case no.1324 of 2017 pending before the Ld. Additional Chief Judicial Magistrate, Mandavi on any condition that may be deemed fit in the interest of justice;
(c) Your Lordships may be pleased to grant such other and further relief/s as may be deemed fit and proper in the interest of justice;
4. Brief facts of the case are as under:-
4.1 It is the case of the applicant that he owned one Hyundai Accent Car with Chesis no.MLCG-41 GLAM-
264732 & Engine no. EPAM-26697. The applicant had Page 2 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 sold the said car to one car-dealer Mr. Ashoksinh Umedsinh Rajput for Rs.4,50,000/- Lacs by handing over the custody of the said car to Mr. Ashoksinh Rajput. Thereafter, said Mr. Ashoksinh Rajput has sold the car to one Mr. Jobanbhai Patel resident of Surat and given assurance that the could will be transferred in the name of Mr. Jobanbhai within short period of time. However, neither Mr. Ashokbhai nor Mr. Jobanbhai transferred the car to their name and the said car continued to be in the name of the presetn applicant.
4.2 Thereafter, on 17 t h March, 2011 the car was seized by the police authorities in connection with the FIR being CR-III no.125 of 2010 lodged before Mandavi Police Station for the offences punishable under Section 66(1)(b), 65(a)(e), 116(2) and 81 of the Prohibition Act. It is the case of the applicant that despite the fact that car is in the name of the present applicant, Mr. Ashoksinh and Mr. Lalitchandra Patel i.e. the accused no.2 by making an application before the Court of JMFC, Mandavi, District Surat prayed to release the car and completed all the formalities on behalf of the applicant and vide order dated 13 t h May, 2011 the Court had ordered to release the custody of the car to the applicant on a condition to furnish a bond of Rs.7,00,000/- . Thereafter, the said accused no.2 Mr. Lalitchandra Patel furnished the solvency certificate issued by the Mamlatdar, Vadodara City before the Court of JMFC, Mandavi, District Surat and Page 3 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 the car was released.
4.3 It is the case of the applicant that despite repeated reminders Mr. Ashoksinh Rajput was not commencing the procedure for name transfer as the owner of the car from the RTO records. As the applicant apprehending that the car may again be misused for illegal purpose, he took over the custody of the car by informing Mr. Rajput that as and when the name transfer in the RTO records be done, he will hand over the custody of the car to him. Thereafter, an FIR being C.R. No.82 of 2011 dated 15 t h July, 2011 came to be registered at Mandavi Police Station, Surat by one Mr. Desai, the then Police Sub-Inspector, Mandavi Police Station, Surat Rural for the offences punishable under Sections 465, 467, 468, 471, 472, 420, 120(B), 177, 184 and 34 of IPC, wherein the applicant was arraigned as accused no.1 and Mr. Lalitchandra Patel was arraigned as accused no.2. It was alleged in the FIR that on the basis of orders from senior police authorities, the police authorities at Mandavi Police Station had inquired about the authenticity of solvency certificate submitted by Mr. Patel for releasing the Muddamal seized car and they found that solvency certificate was forged and was never issued by the office of Mamlatdar, Vadodara City.
4.4 As the applicant apprehending arrest in pursuance of the FIR and therefore, preferred Page 4 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 anticipatory bail application before the Sessions Court, Surat which came to be allowed by the 5 t h Additional Sessions Judge, Surat on 18 t h October, 2011. It is the case of the applicant that pursuant to the FIR, on 7 t h January, 2011 the Investigation Agency submitted charge-sheet before the Court of JMFC, Mandavi and the applicant was arraigned as accused no.1 along with four other accused and thereafter, pursuant to the charge-sheet, criminal case has been registered against the present applicant and the same was pending before the Principal Senior Civil Court, Mandavi, District Surat. Thereafter, the present applicant filed an application for discharge in Criminal Case no.1384 of 2017. The said application came to be rejected vide order dated 4 t h September, 2021 passed below Exh. 12 by the Addl. Chief Judicial Magistrate, Mandavi, District Surat. 4.5 Being aggrieved by the said order of the rejection dated 4 t h September, 2021 passed below Exh. 12 by the Addl. Chief Judicial Magistrate, Mandavi, District Surat, the applicant has preferred this application.
5. Mr. M. H. Rathod, learned advocate for the applicant has contended as under:-
5.1 It is contended that the Trial Court was appraised by the applicant about the fact that there is no material worth the name against the applicant even if the entire case of the prosecution is believed to be true. The applicant also placed heavy reliance on all Page 5 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 the statements which are relied upon by the prosecution. However, there is no allegation worth the name about the applicant having participated in the offence. The Trial Court was at least required to apply its mind and to test the case of the applicant at least prima facie as to whether there is any involvement of the applicant considering the case papers of charge-sheet. However, the merits of the case have not at all been discussed by the Trial Court, nor the contentions referred and relied upon by the applicant in the application Exh.12 have been discussed.
5.2 It is contended that a plain reading of Section 227 of the Code of Criminal Procedure, 1973 which allows any accused to prefer an application for discharge demonstrates that if an accused is in a position to establish that upon consideration of the record of the papers relied upon by the prosecution if it is establishes that there is no sufficient ground for proceeding against the said accused, the said accused deserves an order of discharge from further being tried. It is further contended that the Trial Court has not given any reason as to how the grounds urged by the applicant are unwarranted or the documents submitted by the prosecution is sufficient for proceeding ahead against the applicant.
5.3 It is contended that the impugned order suffers from vices of non-consideration of statements/material Page 6 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 and documents produced along with the charge-sheet and the impugned order is non-speaking and violative of settled legal position. It is also contended that the whole case of the prosecution is based on the allegation of a forged solvency certificate for taking custody, but on bare perusal of all the investigation and charge-sheet papers shows that the alleged forged solvency certificate is not on record of the said investigation and charge-sheet papers.
5.4 It is further contended that in the FIR and charge-sheet, it is alleged that the solvency certificate produced by the accused no.2 is forged and bogus.
However, there is no iota of material in charge-sheet to connect the applicant in forging of the solvency certificate or any kind of abetment or meeting of mind in commissioning of the offence and therefore, there is no material against the applicant.
5.5 It is contended that the applicant had also contended before the Trial Court that the order passed by the Trial Court below Exh.12 has not been properly complied with and the prosecution is to open its case by giving brief idea as to on what material it proposes to try a particular accused. However, in the instant case, by merely filing a report, the prosecution has adopted the entire papers of charge-sheet, which is, in respectful submission of the applicant, no compliance of the provisions of Section 226.
Page 7 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022R/CR.RA/228/2022 ORDER DATED: 28/07/2022 5.6 It is contended that Section 226 empowers any person who considers himself to be not guilty and the material so placed by the prosecution does not support the case of the prosecution, can move an application under Section 227 of Cr.P.C. Moving an application invoking the provisions of law, by no stretch of imagination, can be said to be a dilatory tactic. It is right of an accused to present a discharge application and the Trial Court has erred in coming to the conclusion that filing an application for discharge is a dilatory tactics.
5.7 Mr. Rathod, relying upon the decision in the case of Manishaben Gajjugiri Goswami Vs. State of Gujarat , decided in Criminal Revision Application No.245 of 2021, contended that this Court has discussed the ambit and purport of the provisions of Sections 226 and 228 of the Cr.P.C. Mr. Rathod, therefore, submits that for the foregoing reasons, the prayers prayed for in the present application may be granted.
6. As agaisnt this, Mr. R.C. Kodekar, learned Additional Public Prosecutor for the respondent - State has contended that the impugned order passed by the Trial Court is just and proper and no interference is called for. Learned APP has contended that the entire material comprising of the charge- sheet along with the documentary evidence produced would make it clear that the applicant has committed an offence for which he is required to be tried.
Page 8 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022R/CR.RA/228/2022 ORDER DATED: 28/07/2022 Learned APP has further contended that by filing the discharge application, the applicant has tried to delay the trial. Learned APP has also relied on the decision rendered by this Court in Manishaben Gajjugiri Goswami (supra) and therefore, in view of the above submissions, no error is committed by the learned Sessions Judge in rejecting the discharge application of the applicant.
7. Having heard learned advocates appearing for the parties and having perused the material placed on record, it reveals from the record that the charge and framing of charge have been deferred time and again due to several applications moved by the applicant along with co-accused which ultimately seems to have been disposed of and the consequences follows from the order passed below Exh.12 and therefore, the application preferred by the applicant is nothing but an act to prolong the trial by one or another reason and it amounts to create hurdles in the smooth trial.
8. It further appears from the record that there is sufficient piece of evidence on the basis of which the guilt of the applicant can be proved. Similar issues and contentions have been raised by the applicant in the application filed by him vide Exh.12, wherein the reference has been made as to the statements and allegations to prescribe procedure before framing the charge.
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9. It also evident from the record that the present application is nothing but a delaying tactic as the application seems to have been deferred on several occasions, whereas the co-accused seem to have been assassinating and languishing in the prison wherein the charge till date has not been framed or followed by the commencement of the trial due to several applications moved by the applicant. The entire material comprising of the charge-sheet along with the documentary evidence have been produced and the same is sufficient for presuming that the applicant has committed an offence for which he is required to be tried. Whatever submissions made by the learned advocate for the applicant can be raised at the time of raising defence in the trial. Looking to the gravity and nature of offence, the applicant is required to be tried for the charges levelled against him.
10. This Court even while considering the law and proposition laid down in the case of Manishaben Gajjugiri Goswami (supra) has gone through the same. The very purpose and the object of following the provisions of Sections 226 to 228 of the Cr.P.C. is to ensure the expeditious disposal of the Sessions Case so that the accused is discharged if there is no sufficient material against him or he can be tried quickly by following the due procedure laid down under Chapter-28 of the Cr.P.C.
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11. In the case of State of Bihar Vs. Ramesh Singh , reported in AIR 1977 SC 2018 observed as under:-
"4. Under section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under section 227 or section 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by section 227. If, on the other hand, "the Judge is of opinion that there, is ground for presuming. that the accused has committed an offence which- (b) in exclusively triable by the Court, he shall frame in writing a charge against the accused'-', as provided in section 228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the Page 11 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding Page 12 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order Page 13 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 which will have to be made will be one under section 228 and not under section
227."
12. In the case of State of Maharashtra Vs. Som Nath Thapa, reported in AIR 1977 SC 2018 observed as under:-
"24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. When can charge be framed ?Page 14 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022
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30. In Antulay's case, Bhagwati, CJ., opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According to Shri Jethmalani, a prima facie case even be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence".
31. Let us note the meaning of the word "presume". In Black's Law Dictionary it has been defined to mean "to believe or accept upon probable evidence". (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law "presume"
means "to take as proved until evidence to the contrary is forthcoming" , Stroud's Legal Dictionary has quoted in this context a certain judgement according to which "A Page 15 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged." (Emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.
32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. What is the effect of lapse of TADA ?
33. In the written submissions filed on behalf of appellant Moolchand, it has been urged that TADA having lapsed, section 1(4) which saves, inter alia, any investigation instituted before the Act had expired, itself Page 16 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 lapsed because of which it is not open to the prosecution to place reliance on this sub- section to continue the proceeding after expiry of TADA.
57. A perusal of the statement made by aforesaid two Inspectors shows that they had made two statements at two points of time. The first of these has been described as "original statement' by Shri Shirodkar in his written note and the second as "further statement". In the original statement, these two Inspectors are said to have told Thapa, on being asked which would be crucial places for laying trap, that the same were Purar Phata and Behan Phata, at which places trap was in fact laid. But 2 then, in the further statement the Inspectors are said to have opined that watch should be kept at Sai-Morba Goregoan junction, because that was the main exit point for smuggling done at Shrivardhan and Shekhadi. Shri Shirodkar would not like us to rely on what was stated subsequently by these Inspectors, as that was under
pressure of investigation undertaken subsequently by the C.B.I. We do not think that the law permits us to find out at this stage as to which of the two versions given by two Inspectors is correct. We have said Page 17 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 so because at the stage of framing of charge probative value of the statement cannot be gone into, which would come to be decided at the close of the trial. There is no doubt that if the subsequent statement be correct, Nakabandi was done not at the proper place, as that left Sai-Morba Road free for the smugglers to carry the goods upto Bombay."
13. In the case of State of Maharashtra Vs. Priya Sharan Maharan, reported in AIR 1997 SC 2041 observed as under:-
"8. The law on the subject is now wellsettled, as pointed out in Niranjan Singh Punjabi vs. Jitendra Bijjaya (1990) 4 SCC 76, that at Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view of finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad Page 18 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
11. The above quoted paragraphs from the judgment clearly disclose that the High Curt was much influenced by the submission made on behalf of the defence that Kripalu Maharaj is a saintly old man, who has renounced the world, who is engrossed in spiritual activity and who has thousands/millions of disciples all over India and, therefore, he was not likely to indulge in the illegal acts alleged against him. It failed to appreciate that it is not unusual to come across cases where the so-called spiritual heads exploit you girls and women who become their disciples and come under their spell. Moreover, the reasoning of the High Court that it also does not stand to reason that a saintly man who has thousand/millions of disciples all over India would commit sexual intercourse with the praharak of his cult in presence of his Page 19 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 disciples stands vitiated because of the vice of misreading the statements. The three girls have nowhere stated in their statements that R-2 had sexual intercourse with them in presence of other disciples. The High Court gave too much importance to the conduct of the three victims and the delay in disclosing those illegal acts to their parent and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would depend upon the circumstances in which she is placed. It often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or uncertainties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. What the three girls had stated in their statements was not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such a long time. What the High Court has failed to appreciate is that while making complaint to the police or giving their statements they were not required to give detailed explanations. As stated earlier, what the Page 20 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022 R/CR.RA/228/2022 ORDER DATED: 28/07/2022 Court has failed to appreciate is that while making a complaint to the police or giving their statements they were not required to give detailed explanations. As stated earlier, what the Court has to consider at the stage of framing of the charge is whether the version of the person complaining together with his/her explanation is prima facie believable or not. It was, therefore, not proper for the High Court to seek independent corroboration at that stage and to quash the charge and discharge the accused in absence thereof. It was also improper to describe the version of Sulakshana as false because no extensive injuries were noticed on her person while she was examined by a doctor on the basis of some observations made in Modi's textbook on "Medical Jurisprudence and Toxicology". We do not think it proper to say anything further as, in the view that we are taking, the accused will have to face a trial and whatever observations we make now may cause some prejudice to them at the trial. We would only say that the High Court was wholly wrong in discarding the material placed before the Court as false and discharging the accused on the ground."Page 21 of 22 Downloaded on : Thu Aug 04 20:21:06 IST 2022
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14. Thus, in view of the above decisions and discussions made hereinabove, the impugned order does not suffer from any illegality, irregularity or impropriety and the Revision is liable to be dismissed and is hereby dismissed. Rule discharged.
(SAMIR J. DAVE, J.) AMAR RATHOD...
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