Gujarat High Court
Pruthvirajsinh @ Aniruddhsinh vs R.K. Singhla, Deputy Director on 20 September, 1999
Equivalent citations: 2000CRILJ2315, (2000)2GLR438
Author: R.R. Tripathi
Bench: R.R. Tripathi
JUDGMENT M.R. Calla, J.
1. Initially Special Criminal Application No.309 of 1999 was filed under Articles 226 and 227 of the Constitution of India, before this Court on 5.4.1999 by the petitioner with the prayer that the order dated 4.1.1996, (Annexure 'A' to the petition) passed by the learned City Sessions Judge, Ahmedabad under sec.319 of the Code of Criminal Procedure ("the Code" for brevity) be set aside on the strength of the latest pronouncement of the Honourable Supreme court and the proceedings against the present petitioner be ordered to be dropped. When the said Special Criminal Application came up before the Court on 9.4.1999. The Court granted leave to amend converting the Special Criminal Application into Criminal Misc. Application under sec. 482 of the Criminal Procedure Code as it appears from the faint writing at the top of the order thereof dated 9.4.1999. Notice was also issued on 9.4.1999 and on the very same date appearance was also entered on behalf of respondents nos.1 and 2, who waived service. After hearing both the sides interim order was also passed in terms of para 11(B) of the petition to the effect that pending final disposal of this petition further proceedings in Sessions Case No.162 of 1994 before the City Sessions Court, Ahmedabad shall remain stayed.
2. The interim order was continued on different dates and thereafter this converted Criminal Misc. Application No.2284 of 1999 came up before the Court on 28th June 1999. After hearing both the sides, rule was issued and the learned Single Judge while issuing rule on 28th June 1999 passed the order in some detail referring the matter to the Division Bench. The contents of paras 7 and 8 of the order dated 28th June 1999 are reproduced hereunder :
"7. Thus, under these circumstances, some important questions arise for consideration in this petition, e.g. Whether the petitioner who has been directed by the Single Judge Bench of this Court to be joined as the accused in the light of the law prevailing at that point of time, "i.e. prior to the pronouncement of the judgment in the case of RANJITSINGH vs. STATE OF PUNJAB, 1998 (4) CRIMES 5" supra, can be disturbed by another Single Judge Bench of this Court while entertaining this petition? Whether the petitioner can challenge his being impleaded as an accused by this petition by challenging the subsequent impugned order, when he has not challenged the order impleading him as an accused? Whether the question as to impleading the petitioner as an accused can be said to be a still pending at this point of time when it is already decided earlier by this Court on the basis of the decision of the Supreme Court in the case of KISHUNSINGH vs. STATE OF BIHAR, 1993 SUPREME COURT CASES (CRI.) 470 only because the trial is not over? and Whether that order can be upset at this stage in the light of decision rendered in case of RANJITSINGH vs. STATE OF PUNJAB which is a subsequent decision?"
"8. Under these circumstances, as the aforesaid important question arise in this petition and therefore, in view of this Court, this is a case which requires to be decided by the Division Bench and therefore, this matter is referred to a Division Bench in exercise of powers under Rule 5(1) of Gujarat High Court Rules, 1993. The Registry is therefore, directed to place this matter before Honourable Chief Justice for passing appropriate orders for placing the matter before a Division Bench."
3. This is how this Criminal Misc. Application has come up before this Court as the learned Single Judge has opined that it is the case which requires to be decided by a Division Bench and therefore, the matter has been referred to the Division Bench.
4. Shri J.M. Panchal and Shri Kiran Jani, learned advocates have submitted on behalf of the petitioner that the present petitioner has been assisting the Customs Department, Directorate of Revenue Intelligence and various other agencies by furnishing valuable informations from time to time. He has been given rewards and advance rewards to the tune of lakhs of rupees from time to time by the Collector, Customs (Preventive), Gujarat, Ahmedabad, Collector of Customs at Kandla and the Directorate of Revenue Intelligence, two times in the year 1992, two times in the year 1993 and lastly in the year 1995. It has also been submitted that the petitioner is also engaged in the business of transport and agriculture and he is stationed at Gandhidham.
5. It has been submitted that Shri R.K. Singhla, Deputy Director of the Directorate of Revenue Intelligence, who is respondent no.1 in this application had filed a complaint on 23rd May 1994, after investigation on the basis of the information given by the present petitioner against seven persons for offences under Narcotic Drugs & Psychotropic Substances Act, 1985 ("NDPS Act" for brevity). In the investigation, the present petitioner had been cited as a witness and the complaint had been filed by the Deputy Director, Directorate of Revenue Intelligence against the following 7 persons :
(1) Achit N. Patel & Mahesh Shah (2) Dr. Bipin Panchal (3) Arvind S. Soni (4) Prahlad M. Patel (5) Revabhai K. Patel (6) Kashyap Patel (7) Piyush Pandya Case against these persons was numbered as Criminal Case No.162 of 1994, on the basis of the complaint dated 23rd May 1994.
6. After a period of more than one year on 24th July 1995, one of the accused persons, namely, accused no.2, Dr.Bipin Panchal, filed an application under sec. 319 of the Code before the City Sessions Court, Ahmedabad, so as to array the present petitioner and two others, namely, Amritlal D. Soni alias Mama and Vimal Amritlal Soni, as accused in the said criminal case at a stage even before recording of evidence. The offence under NDPS Act in the aforesaid case was registered on the allegations of supply of huge mandrax tablets. On the aforesaid application dated 24th July 1995, the City Sessions Court at Ahmedabad passed an order on 4.1.1996, so as to array the present petitioner and Amrutbhai Soni alias Mama as accused persons along with the above named seven persons, making total number of accused persons to be 9, while the Court declined the prayer of Dr.Bipin Panchal against Bimal Soni. On the basis of this order dated 4.1.1996 passed by the City Sessions Court, Ahmedabad, non bailable warrants were issued. Shri Amritlal Soni alias Mama surrendered before the Court in pursuance with the non bailable warrants and applied under sec. 227 of the Code for his discharge. That prayer for his discharge was rejected by the City Sessions Court at Ahmedabad on 5th June 1996 and the charge was framed against the 7 accused persons as aforesaid as also against Shri Amritbhai Soni alias Mama as accused no.8.
7. Against framing of charge dated 5.6.1996, said Shri Amritbhai Soni alias Mama preferred Criminal Revision Application No.300 of 1996 before this Court and also filed Criminal Misc. Application No.4000 of 1996, for quashing the entire proceedings against him. The aforesaid Criminal Revision Application No.300 of 1996 as also Criminal Misc. Application under sec. 482 as had been moved by Amrtilal D. Soni alias Mama were rejected by a common judgement and order dated 31.1.1997 by this Court. It has been submitted by Shri Panchal, learned advocate that at that time, i.e. in January 1997 when the aforesaid Criminal Revision Application and application under sec. 482 were decided by this Court, the legal position as was holding the field was that under sec. 319 of the Code, a person who had not been named as accused in the investigation papers could also be arrayed by the Court even without recording any evidence and for this purpose a reference has been made to the case of Kishun Singh v. State of Bihar, (1993) 2 SCC 16 and Nissar v. State of U.P. reported in (1995) 2 SCC 23.
8. It has been further pointed out by Shri Panchal and Shri Kiran Jani on behalf of the present petitioner that the petitioner was in fact abroad and he did not come to know about the order dated 4.1.1996 as had been passed by the City Sessions Court at Ahmedabad and the non bailable warrants having not been served upon him, he did not take any action against the order dated 4.1.1996 by which he was ordered to be arrayed as an accused in the aforesaid criminal case. He came to know about these developments only when a controversy arose about his place of birth in his own Passport about correction of place of birth in the his Passport and in that context he was apprehended on 30.3.1997. Thereupon he moved for anticipatory bail because non bailable warrants had been issued against him with reference to the City Sessions Court order dated 4.1.1996. Whereas the petitioner was already there before the Court at the time of hearing of the application for his anticipatory bail, said application was converted and treated as regular bail application and regular bail was granted by this Court on 8.4.1997. The petitioner, then moved an application under sec. 227 of the Code before the City Sessions Court, Ahmedabad for his discharge as throughout it is the case of the petitioner that he had never been found to be an accused by the Department or the investigating agency and he had been arrayed as accused only on an application by one of the co- accused, Dr.Bipin Panchal. It has been submitted that there is no allegation against the petitioner so far as the investigation papers of the concerned department and there is not even iota of allegation or evidence against him and merely because Dr.Bipin Panchal, the co- accused had made the statement that the petitioner had supplied some mandrax tablets to him in the past, he was sought to be arrayed as an accused, although according to the learned counsel for the petitioner even this statement made by Dr.Bipin Panchal was later on retracted.
9. On the petitioner's application as aforesaid, under sec. 227 of the Code, the City Sessions Court, Ahmedabad passed an order on 12th May 1997, discharging the petitioner. However, accused no.2, Dr.Bipin Panchal moved Criminal Revision Application No.472 of 1997, challenging the aforesaid discharge order dated 12th May 1997, which was passed in the petitioner's favour, by the City Sessions Court at Ahmedabad and this Criminal Revision Application filed by Dr.Bipin Panchal was allowed by this Court by order dated 30.4.98/ 4.5.98, whereby the City Sessions Court's order dated 12.5.1997 discharging the petitioner was set aside. It has been submitted that this decision dated 30.4.98/ 4.5.98 in the case of Bipin Shantialal Panchal v. Pruthviraj alias Anirudhsingh & ors. is reported in 1999 (1) Crimes 145. The petitioner, therefore, was charged again by the Sessions Court on 13th July 1998 and Shri Panchal has made a candid statement that since then trial is going on and by this time 8 to 10 prosecution witnesses have been examined. He has also submitted that none of these witnesses has stated anything against the petitioner so as to even raise a little finger against him with regard to the offence in question. The factual position as aforesaid has not been disputed by Shri M.R. Gehlani, learned advocate appearing for respondent no.1, i.e. Director of Revenue Intelligence, which is the basic investigating agency of the concerned department with regard to this nature of offence under NDPS Act.
10. The petitioner is facing the charge as was framed on 13th July 1998. The Supreme Court decided the case in Ranjit Singh v. State of Punjab, reported in 1998 (4) Crimes 5 (SC), on 22.9.1998, wherein it is held in no uncertain terms that Sessions Court cannot add a new person to the array of accused in a case pending before it at a stage prior to collecting any evidence. It has been pointed out that the earlier decision of the Supreme Court in the case of Kishan Singh v. State of Bihar reported in 1993 (2) SCC 16 (supra) has been dissented in the case of Ranjit Singh v. State of Punjab, 1998(4) Crimes 5 (SC), which was decided by the Three Judge Bench of the Honourable Supreme Court and the decision in Ranjit Singh v. State of Punjab (supra) has been arrived at after considering the cases of :
(1) Kishun Singh v. State of Bihar, (1993) 2 SCC 16;
(2) Nissar v. State of U.P., (1995) 2 SCC 23;
(3) Raj Kishore Prasad v. State of Bihar, (1996) 4 SCC 495;
(4) Joginder Singh & anr. v. State of Punjab & anr., (1979) 1 SCC 345.
In view of the law laid down in the aforesaid case by the Supreme Court decided on 22.9.1998, the position of law as was holding earlier that even before recording any evidence a person can be arrayed as accused even when he was not an accused as per the investigation, does not hold the field and on the contrary now when the Supreme Court has categorically held and decided as a proposition of law with regard to the scope of sec. 319 of the Code and the law has been settled that Sessions Court cannot add a new person to the array of the accused in a case pending before it at a stage prior to collecting any evidence, the petitioner moved an application dated 17.2.1999 before the City Sessions Court at Ahmedabad seeking to drop charges against him, because he had been arrayed as an accused without recording any evidence and that order as has been passed so as to array him as an accused was passed on the position of law as was obtaining at that time and in view of the law laid down in the case of Ranjit Singh v. State of Punjab (supra), he could not be arrayed as an accused before recording evidence by the sessions court. It has also been submitted that the Supreme Court has not indicated in the case of Ranjit Singh v. State of Punjab (supra) that the decision which was rendered by the Supreme Court in this case will be only of prospective effect and that it will not apply to the pending cases. However, the City Sessions Court at Ahmedabad has rejected the petitioner's application dated 17.2.1999 by order dated 11.3.1999.
11. Through this Application the order dated 4.1.1996 which had been passed by the City Sessions Court, Ahmedabad under sec. 319 of the Code and the order which has been passed on 11.3.1999, are sought to be quashed and set aside. We have heard learned counsel for the applicant, Shri Panchal and Shri Jani; learned counsel for respondent no.1, Shri M.R. Gehani; and learned APP for respondent no.2, and have gone through the orders passed in this case at different stages to which our attention has been invited by the learned counsel for the applicant. We find that so far as the Directorate of Revenue Intelligence is concerned, which is the custodian under the law for the purpose of investigation in this type of cases and for the purpose of launching prosecution against the accused persons, who are found to be involved in the cases involving offences under NDPS Act, the department never found the present petitioner to be liable for any offence or connected with any offence in the present case and even today, it is not the case of the department that the present petitioner should be the accused in the criminal case at hand for which trial is pending and in which he has been arrayed as an accused by order of the Court before recording evidence and that too at the instance of a co- accused.
12. In the facts and circumstances of the present case, we find that the petitioner is sought to be involved in this offence at the instance of accused no.2, Dr.Bipin Panchal, who has made a bald and vague statement against the petitioner that he has supplied some mandrax tablets at one stage. Thus, the agency which is essentially charged with the duty to enforce the provisions of NDPS Act had recorded the statement of the petitioner, because he himself had supplied information with regard to the offence on the basis of which the seizure of the contraband material was made. When the department itself does not want to prosecute the petitioner and one of the co- accused comes forward and seeks prosecution of the person who had informed and at whose instances seizure was made, it appears that such an accused involved in the offence is trying to be more pious than the Pope himself. In the present case, it is not in dispute that initially at the time when the complaint was filed the petitioner was not arrayed as an accused and he was only shown as a witness in the case. When the order was passed on 4.1.1996 by the City Sessions Court at Ahmedabad, arraying the petitioner as an accused in the case at the instance of accused no.2, namely, Dr.Bipin Panchal, no evidence had been recorded. On the basis of such orders, when non bailable warrants were issued and the petitioner appeared before the City Sessions Court and applied for discharge under sec. 227 of the Code, he was, in fact, discharged on 12.5.1997. However, this discharge order dated 12.5.1997 was set aside in the Criminal Revision Application No.472 of 1997 filed by Dr.Bipin Shantilal Panchal. This Criminal Revision Application was decided on 30.4.98/ 4.5.98 and at that time the legal position as was holding the field was that a person could be arrayed as an accused even before recording evidence and keeping in view such position of law as was obtaining at that time, this Court allowed the Revision Application and set aside the order dated 12.5.1997, passed by the Additional Sessions Judge, Ahmedabad, Court No.10, in the proceedings in Sessions Case No.162 of 1994 and the case of Ranjit Singh v. State of Punjab (supra) was decided by the Supreme Court thereafter on 22.9.1998, while trial in the main case was and is still pending. On the basis of this judgement dated 22.9.1998, the petitioner had applied for dropping of charges against him and for quashing the proceedings and the City Sessions Court at Ahmedabad has rejected this application on 11.3.1999 moved by the petitioner under sec. 319 of the Code. It appears from the order dated 11.3.1999 itself that the City Sessions Judge at Ahmedabad has categorically observed that as per the latest position of law rendered by the Three Judge Bench of the Supreme Court, there is no question of arraying any person as accused before recording evidence under sec. 319 of the Code, but he has found it difficult to accept the petitioner's prayers to drop proceedings against him because this Court in Revision Application decided on 30.4.98/ 4.5.98 had set aside the petitioner's discharge order dated 12.5.1997.
13. Now the learned Single Judge before whom this application came up has passed an order on 28th June 1999, through which the case has been referred to the Division Bench under Rule 5(1) of the Gujarat High Court Rules, 1993 and the learned Single Judge in his order dated 28th June 1999 has found that this is a case which is required to be decided by the Division Bench. We find from the contents of para 7 of this order dated 28th June 1999, that the following questions have been framed by the learned Single Judge :
(1) Whether the petitioner who has been directed by the Single Judge Bench of this Court to be joined as the accused in light of the law prevailing at that point of time "i.e. prior to the pronouncement of the judgment in the case of Ranjit Singh v. State of Punjab, 1998(4) Crimes 5" (supra) can be disturbed by another Single Judge Bench of this Court while entertaining this petition?
(2) Whether the petitioner can challenge his being impleaded as an accused by this petition by challenging the subsequent impugned order, when he has not challenged the order impleading him as an accused?
(3) Whether the question as to impleading the petitioner as an accused can be said to be still pending at this point of time when it is already decided earlier by this Court on the basis of the decision of the Supreme Court in the case of KISHUNSINGH vs. STATE OF BIHAR, 1993 SUPREME COURT CASES (CRI.) 470 only because the trial is not over?
And (4) Whether that order can be upset at this stage in the light of decision rendered in case of RANJITSINGH vs. STATE OF PUNJAB which is a subsequent decision?"
14. So far as the first question is concerned, we find that there is no question of disturbing an order passed by a Single Bench in the facts of the present case. The order passed by the learned Single Judge while deciding the Criminal Revision Application on 30.4.98/ 4.5.98 setting aside the petitioner's discharge order dated 12.5.1997, has been rightly passed at that time, on the basis of the law as it was prevailing at that time and holding the field with reference to the Supreme Court decision in Kishan Singh's case to which reference has already been made hereinabove in earlier part of our order. There is no dispute that the trial is still pending. Pending trial, if the position of law gets changed and the Supreme Court [in Ranjit Singh's case (supa)] has held that no person can be arrayed as an accused without recording evidence under sec. 319 of the Code and on that basis, if an application is moved by the aggrieved person, such an application under sec. 319 of the Code has got to be decided on the basis of interpretation given and the law as has been laid down by the Supreme Court in the aforesaid judgement and that too by a larger Bench consisting of Three Judges as against the earlier cases which were decided by the Bench of two Judges of the Supreme Court. We also find that in the case of Ranjit Singh v. State of Punjab (supra) decided on 22.9.1998, the Supreme Court has considered the earlier cases and after considering those cases and recording dissent to the law as had been laid down in the case of Kishun Singh v. State of Bihar, it is held that no person can be arrayed as accused without recording evidence under sec. 319. It has also to be agreed on all counts that it is open for any party to move more than one application for the same relief on the basis of subsequent developments or the change in the position of law while lis is pending.
15. Had the trial in the instant case concluded and no proceedings would have been pending it would have been a different matter altogether, because the trial in that case would have stood concluded. In the present case, when the trial is admittedly pending and pending trial and within the short period of five months, after the decision in Criminal Revision Application by this Court on 4.5.1998, the Supreme Court's judgement has come in his favour, on the basis of which the petitioner could approach the trial court again with the prayer that according to this judgement the question of arraying the petitioner as accused is required to be reconsidered and it is found that the Supreme Court has laid down in no uncertain terms that no person can be arrayed as an accused without recording evidence under sec. 319 of the Code and on that basis, if a fresh order is required to be passed on that application it cannot be said that it is a case in which the order passed by the Single Bench is sought to be disturbed by another Single Bench. Therefore, we hold that the order passed by the Coordinate Bench cannot be disturbed by another Coordinate Bench, but in cases where on a fresh application moved by an aggrieved party, relief is sought on the basis of changed position of law as laid down by the Supreme Court during lis pendence, another Coordinate Bench can certainly decide the application and give relief according to the position of law which has come into existence subsequent to the earlier order passed by a Coordinate Bench. Therefore, question no.1 as has been framed by the learned Single Judge is answered accordingly.
16. So far as question no.2 is concerned as to whether the petitioner could challenge his being impleaded as an accused, by this petition by challenging the subsequent impugned order, when he had not challenged the order impleading him as an accused, we find that the earlier order which was passed against the petitioner on 4.1.1996 may not have been challenged by the petitioner as such, but the fact remains that as soon as he came to know that he had been arrayed as an accused, he did move an application under sec. 319 of the Code, for his discharge from the case and an order was passed in his favor by the City Sessions Court. It is a different matter altogether that, the above order was not sustained by this Court in Criminal Revision Application filed by accused no.2, because at that time, the law as has been laid down by the Supreme Court in Ranjit Singh v. State of Punjab (supra) was not available and the law as was obtaining at that time did permit arraying of the accused even before recording evidence under sec.319 of the Code. In view of the order dated 12th May 1997, which has been passed in favour of the petitioner by the City Sessions Court, it no more remained necessary for him to have challenged the order dated 4.1.1996, separately, because the petitioner got relief in application moved by him under sec.217 of the Code and now when the position of law changed it was open for him to have approached the Court for appropriate relief, whereas that order dated 12.5.1997 has been set aside and the petitioner finds that he had been wrongly arrayed as accused and according to the law laid down by the Supreme Court, he could not be arrayed as an accused, it cannot be said that he is prevented from challenging the order dated 4.1.1996, by which he has been arrayed as an accused and in the facts of the case, we further find that the petitioner had in fact moved an application afresh under sec.319 of the Code praying that the proceedings against him may be dropped and for that purpose reliance was placed on the Supreme Court decision dated 22.9.1998 in the case of Ranjit Singh v. State of Punjab (supra). The City Sessions Court while passing the order dated 11.3.1999 has also agreed in principle that as per the position of law laid down in Ranjit Singh v. State of Punjab (supra), no person can be arrayed as an accused before recording evidence under sec.319 of the Code, but he has only stayed his hands because the petitioner's discharge order dated 12.5.1997 had been set aside by this Court in the Criminal Revision Application filed by accused, Bipin Shantilal Panchal. In such maters, it is always open for the petitioner to move more than one applications on account of any subsequent development either on the question of fact or the question of law. We, therefore, find that the question as to whether the petitioner could be impleaded and arrayed as an accused before recording evidence or not became open after the decision dated 22.9.1998 of the Supreme Court in the case of Ranjit Singh v. State of Punjab (supra). Therefore, merely because he did not challenge the order dated 4.1.1996 as it was not necessary for him to have done so in view of the discharge order dated 12.5.1997, now when the position of law has changed on 22.9.1998 as per Supreme Court's judgement in Rajnit Singh's case, after this Court's order dated 30.4.98/ 4.5.98, the petitioner cannot be deprived from challenging the same and question no.2 as has been framed by the learned Single Judge is also answered in the petitioner's favour accordingly.
17. The next question as has been framed by the learned Single Judge as to whether the question of impleading the petitioner as an accused can be said to be still pending at this point of time, when it is already decided earlier by this Court on the basis of the decision of the Supreme Court in the case of Kishun Singh v. State of Bihar, (1993) 2 SCC 16 (supra).
18. We find that so long as the trial is pending against an accused, it is open for him to challenge at any point of time any order passed against him in those proceedings. An order is final unless there is some change in the facts or unless the position of law remains the same. In normal course, had the judgement dated 22.9.1998 not come on the basis of which the position of law has undergone the change with regard to the basic question or had the trial in criminal case been concluded and no further proceedings would have been pending, there was no question of agitating this issue again. Here is a case in which trial has not been concluded and in the meantime the judgement has been rendered by the Apex Court that no person can be arrayed as an accused without recording evidence which is directly on the point and which is a direct answer to the question raised by the petitioner and if that judgement is applied, the answer comes in favour of the petitioner. In such a situation, can it be said that merely because at one stage, the order arraying him as an accused is passed in the course of trial and merely because his discharge order has been set aside by this Court while deciding Criminal Revision Application on 30.4.98/ 4.5.98 on the basis of the judgement of the Supreme Court which has been now dissented by a larger Bench, the petitioner is not entitled to take benefit of such a judgement as rendered by the Supreme Court which is the law of the land and binding under Article 141 of the Constitution of India. 19. In the facts and circumstances of the case, we find that this question became open and could be agitated by the petitioner again and could be considered in the light of the latest judgement of the Supreme Court and to that extent it cannot be said that this question was not open to be raised by the petitioner. We accordingly hold that the petitioner was within his rights to move the application before the City Sessions Court as was moved by him on 17.2.1999, to drop charges against him. This question as framed by the learned Single Judge is answered accordingly.
20. The last question as has been referred to by the learned Single Judge is as to whether that order can be upset at this stage in the light of the position of law rendered in the case of Ranjit Sing v. State of Punjab (supra), which is a subsequent decision. The law as is laid down by the Court has to be applied on the facts of each and every case. When it comes to application of law on the facts of a given case on the basis of the decision which is rendered by the Supreme Court and if the Court finds that an order passed during the pendency of proceedings at one stage, which does not conform to the law laid down by the court or in case the law which is laid down at a later point of time by the Supreme Court during lis pendence, if applied to the facts of the case, may result in upsetting the earlier order, the court can always pass appropriate orders. The courts, in fact and in principle are not supposed to suffer from the inhibition that once an order is passed, the same cannot be set aside even when the position of law changes subsequently during lis pendence, if at all we mean that justice is to be rendered according to law. We, therefore, find that whether the order passed at one stage is likely to be set aside or not on the basis of decision rendered subsequently by the Supreme Court would depend upon the facts and circumstances of each and every case, but as a proposition of law, it cannot be said that such an order cannot be upset even if it is otherwise found to be liable to be upset on the basis of a later decision rendered by a larger Bench of the Supreme Court and the legal position which holds the field at the relevant point of time when the order is sought by an application moved by a party in the light of the later decision of the Supreme Court.
21. Having answered the questions as formulated and referred by the learned Single Judge, while referring this matter to the Division Bench, we have considered as to whether in the facts of the present case on the basis of the latest judgement of the Supreme Court in Ranjit Singh v. State of Punjab (supra), the earlier order dated 4.1.1996 and the order dated 11.3.1999, which have been passed by the learned City Sessions Judge, Ahmedabad can be sustained or not.
22. There cannot be two opinions on the proposition that law declared at a later point of time by a larger bench of the Supreme Court after considering the earlier decision prevails and holds the field and has to be given effect to, unless the Supreme Court itself while deciding the case observes and directs that the decision will have only prospective effect and will not have any impact on the cases pending.
23. In the case of Tek Narayan Prasad Yadav v. State of Bihar and another, reported in 1999 Supreme Court Cases (Cri.) 356, a Bench of three Judges of the Supreme Court had taken the view that while considering the relevant scope of sections 319, 193 and 209 of the Code that Sessions Court is competent to issue process against a person who is not charge sheeted under sec.193 after having begun the trial and having recorded some evidence of the prosecution.
24. In Rajkishore Prasad v. State of Bihar and another, 1996 Supreme Court Cases (Cri.) 772, the question which was considered by the Supreme Court was as to whether a Magistrate undertaking commitment under sec. 209 of the Code of a case triable by a court of sessions can associate another person as accused in exercise of power under sec. 319 of the Code or under any other provision. In this case, after considering the earlier cases in Nissar v. State of U.P., (1995) 2 SCC 23; Kishun Singh v. State of Bihar, (1993) 2 SCC 16; State of U.P. v. Lakshmi Brahman and another, reported in (1983) 2 SCC 372 and without considering the case of Tek Narayan Prasad Yadav v. State of Bihar and another (supra), the court answered as stated above which had come up for consideration before the Supreme Court in the following terms in para 16 : 1996 SCC (cri) 772 "Thus we come to hold that the power under section 209 Cr.PC to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an 'inquiry' and material before him not being 'evidence'. When such power was not so vested, his refusal to exercise it cannot be corrected by a Court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, summon the accused to stand trial, along with the accused meant to be committed for trial before it. Presently, it is plain that the stage for employment of Section 319 Cr.PC has not arrived. The order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319 Cr.PC when handling a matter under Section 209 CrPC, the Court of Session, in purported exercise of revisional powers cannot obligate it to do so. The question posed at the outset is answered accordingly in this light."
It was further observed in continuation of the aforesaid observations as under :
"When the case comes after commitment to the Court of Session and evidence is recorded, it may then in exercise of its powers under Section 319 CrPC on the basis of the evidence recorded by it, if circumstances warranting, proceed against the appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the necessary safeguards envisaged under subsection (4) of Section 319. .. .."
In this very case in para 13, the Supreme Court referred to the case of Kishun Singh v. State of Bihar (supra) and observed at the end of para 13 that :
".. .. Therefore, this Court's view as crystallized is that in stricto sensu, Section 319 of the Code cannot be invoked in a case where no evidence had been led at a trial, wherefrom it can be said that the accused, other than the one facing trial, appears to have been involved in the commission of the crime."
After considering the observations in para 13 in the case of Kishun Singh v. State of Bihar (supra), again the other question posed in this very case, as dealt in para 14 is as to whether a Court of Sessions, to which a case is committed for trial by a Magistrate, could, without itself recording evidence, summon a person not named in the police report presented under Section 173 of the Code of Criminal Procedure, 1973, to stand trial along with those named therein; if not in exercise of power conferred by Section 319 of the Code, then under any other provision. It has been observed that in Kishun Singh v. State of Bihar (supra) the answer given was in the affirmative, on the basis of Section 193 of the Code, as it presently stands, providing that once the case is committed to the Court of Session by a Magistrate, the restriction placed on the power of the Court of Session to take cognizance of an offence as a Court of Original Jurisdiction gets lifted, thereby investing the Court of Sessions unfettered jurisdiction to take cognisance of the offence which would include the summoning of the person or persons whose complicity in the crime can prima facie be gathered from the material available on the record. It was on this reasoning that in Kishun Singh's case (supra) the Supreme Court sustained the order of the Court of Session (though it ostensibly was under sec.319 of the Code terming material of investigation before it as 'evidence') summoning the unnamed accused to stand trial with the named accused. It has been then observed in para 14 of this very judgement that :
"A stage has thus been discovered, before the reaching of the stage for exercise of power under Section 319 of the CrPC, on the supposition and premise that it is pre trial when the question of charge was being examined. Such power of summoning the new accused has been culled out from the power exercisable by the Court of Session under Section 227 and 228 of the Code, enabling it to discharge under Section 227 or charge under Section 228, the accused persons before it and while so to summon another accused involved in the commission of the crime, prima facie appearing from the material available on record of the case. Thus, at a stage posterior to the stage envisaged under Section 319, the Court of Session has been held empowered to summon an accused, if a prima facie case is made out from the material available on the record."
The Three Judge Bench of the Supreme Court in this case has then expressed its reservations to such a view although the view taken in the case has been approved in the case of Nissar v. State of U.P. (supra). The words in which the Supreme Court expressed its reservations in para 15 are quoted hereunder : 1996 SCC (Cri.) 772 "15. We have respectfully to express, in the wake of the legislative policy, our reservations to such view even though that view has been met with approval in Nisar v. State of UP. the scheme and design of Chapter XVIII and the legislative policy reflected therein seems to have been underestimated. It is designed to secure speedy trial for those who are facing it. Sections 225 to 237 CrPC (which includes Sections 227 and 228) are integrated provisions of a lot which govern in totality the trial proceedings under Chapter XVIII titled "Trial before a Court of Session". There seemingly is no intermediate stage envisaged between commitment and trial or the trial proceeding splitting into pre charge trial and after charge trial. Trial begins with Section 225 when the public prosecutor is present before the Court of Session to conduct the prosecution and opens its case disclosing the evidence by which he proposes to prove the guilt of the accused. It is for him to highlight the particulars of the evidence he would lead to prove the case against the accused facing trial. The stage of Sections 227 and 228 comes as the next step after observance of such procedure as part of trial. It is, thus designed that proceedings to discharge or change the accused are part of trial. Addition of an accused by summoning or resummoning a discharged accused, and that too without hearing the accused, has only been permitted in the manner provided by Section 319 CrPC on evidence adduced during the course of trial, and in no other way. Having thus expressed our doubts we do not, as at present advised, take the matter any further because the fact situation of the present case does not warrant its resolution, a dire necessity. Besides, we propose to take care of the fact situation by giving appropriate relief to the appellant in the manner suggested later."
25. Thus, having expressed the reservations about the view taken in the case of Kishun Singh v. State of Bihar and approved in the case of Nissar v. State of U.P. (supra), the effect of the decisions in the case of Kishun Singh (supra) and Nissar (supra), each one of which was decided by a Bench of Two Judges of the Supreme Court, the Three Judges Bench of the Supreme Court has again considered the same question in latter two decisions, namely, the case of Tek Narayan Prasad Yadav v. State of Bihar decided on 4.8.1998 and Ranjit Singh v. State of Punjab decided on 22.9.1998 and we find that the three Judge Bench in the case of Ranjit Singh v. State of Punjab (supra) has dissented from the earlier view in the case of Kishun Singh (supra) and approved in the case of Nissar v. State of U.P. in clear terms and the law as it stands now and holds field in this regard is that the Sessions Court cannot add a new person to array as an accused in a case pending before it and at a stage prior to collecting any evidence, and if this law as laid down by a larger Bench of the Supreme Court at a subsequent and later point of time subsequent to when the cases of Kishun Singh v. State of Bihar (supra) and Nissar v. State of U.P. (supra) were decided, there remains no doubt that there is no question of arraying a person as an accused without recording any evidence, if his name otherwise does not appear in the list of accused persons arrayed by the Department on behalf of which the matter is brought for trial.
26. In the light of this latest position of law, the grievance which has been raised by the petitioner in this case against orders dated 4.1.1996 and 11.3.1999 appears to be a legitimate grievance and for the reason that at one stage order was passed on the basis of law laid down by the Supreme Court as was holding the field at that time, the petitioner cannot be denied the relief which is otherwise available to him. Therefore, we find that notwithstanding the earlier order dated 4.1.1996 as had been passed by the City Sessions Judge and the order dated 30.4.1998/ 4.5.1998 as had been passed by the learned Single Judge of this Court while deciding the Criminal Revision Application filed by one of the accused, namely, Dr.Bipin Shantilal Panchal, the petitioner was entitled to the relief as had been prayed by him in the application dated 17.2.1999 before the Court of Session and the same could not have been denied to him as has been done by the order dated 11.3.1999 while rejecting his application dated 17.2.1999.
27. On the question of grant of the aforesaid relief the probable argument which can be raised against the petitioner is that the law as has been laid down by the Supreme Court in Ranjit Singh v. State of Punjab (supra) cannot be applied retrospectively. Firstly, we find that there is no question of retrospective operation. It is a case in which the position of law which was earlier holding the field has been dissented by a larger Bench. The view which had been taken earlier has been dissented by a larger Bench of the Supreme Court and now the view which has been taken has to be advanced. The Supreme Court itself has not limited the scope of applicability of the law laid down in this case. It is in fact the case in which the judgement is required to be given effect on an order passed in a pending matter and there is no question of retrospective effect. This would only mean that the law as laid down in latest decision has to be applied in all pending proceedings at any stage. It also goes without saying that in a given case even if a trial is concluded and further proceedings are pending in appeal, then also the lis continues to be pending and even in the matter of pendency of appeals, if the position of law is altered, the same has to be given effect to and that would only mean a retro active effect, so as to undo the injustice caused to a party on account of the law which was prevailing at earlier point of time when the order adverse to such a party was passed. It is the requirement of law for any such cases in order to render justice between the parties. Everything can be sacrificed to meet the ends of justice, but justice cannot be sacrificed for anything.
28. We, therefore, find that it was a fit case in which the relief ought to have been granted to the petitioner while deciding his application dated 17.2.1999 and in taking this view, we are further fortified by yet another Supreme Court decision in the case of Maj. Genl. A.S. Gauraya and another v. S.N. Thakur and another, AIR 1986 SC 1440. In this case of A.S. Gauraya (supra), the Supreme Court was concerned with the dismissal for default in a complaint case. The High Court had taken the view that the Magistrate had no inherent power to review his order of dismissal and restore the case. This view taken by the Delhi High Court was over- ruled and reversed by the Supreme Court. While dealing with this case, the Supreme Court found that where Sessions Court allowed a revision before it by bypassing the decision of the Supreme Court on the point involved with the observation that a pronouncement as to the position of law in a judicial decision by the Supreme Court cannot be treated as a sort of legislation by the Parliament giving retrospective effect as to enjoin reopening of all matters which have already become final and closed, the order of Sessions Court was held unjustified. The Supreme Court further observed in para 12 as under :
" .. .. There is nothing like any prospective operation alone of the law laid down by this Court. The law laid down by this Court applies to all pending proceedings. If the Sessions Judge had expressed his helplessness because of the earlier order of the High Court binding on him and had allowed the revision on that ground, we could have understood the reasoning behind it. He got rid of the effect of this Court's judgment by observing that a decision by this Court cannot be treated as "a sort of legislation by Parliament" and thus overlooked the binding nature of the law declared by this Court, mandating under Art.141, every Court subordinate to this Court to accept it. The High Court could have, if it had examined the matter, corrected the error into which the Sessions Judge fell."
29. We find that the aforesaid observations of the Supreme Court are only apt to the facts of the present case. The more we read these observations along with the orders passed by the Sessions Court dated 4.1.1996 and 11.3.1999, more we find that the same error has been crept in the order dated 11.3.1999 because the learned City Sessions Judge has noted the Supreme Court decision in the case of Ranjit Singh v. State of Punjab and from the tenor of the order, we find that but for the earlier order passed by this Court in Criminal Revision Application, he would have accepted the prayer made by the present petitioner in application dated 17.2.1999, and only for the reason that the decision dated 30.4.98/ 4.5.98 had been given by this Court in Criminal Revision Application, relief has been declined to the petitioner, despite the judgement of the Supreme Court in the case of Ranjit Singh v. State of Punjab. On the analysis of the relevant law in this regard and in the facts and circumstances of the case, we find that the order dated 4.1.1996 as has been passed against the petitioner in the pending proceeding in the criminal case as above as also the impugned order dated 11.3.1999 are wholly unsustainable. The same are contrary to the law laid down by the Supreme Court as it stands now and in view of the same, we allow this Application and quash and set aside the orders dated 4.1.1996 and 11.3.1999 with all legal consequences to follow, including dropping of the proceedings against the petitioner. Interim order passed in this proceeding against the pending proceedings in Sessions Case No.162 of 1994 in Court No.8 of the City Sessions Court at Ahmedabad is vacated and the trial court may proceed accordingly. Rule is made absolute accordingly. No order as to cost.