Gujarat High Court
Kandhal Sarman Jadeja vs State Of Gujarat on 21 December, 2020
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/740/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 740 of 2015
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KANDHAL SARMAN JADEJA
Versus
STATE OF GUJARAT
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Appearance:
MR ND NANAVATY, SENIOR ADVOCATE WITH MR YASH NANAVATY
FOR NANAVATY ADVOCATES(1373) for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR RONAK RAVAL,
APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 21/12/2020
ORAL ORDER
1. Rule. Learned APP waives service of notice of Rule for the respondent - State.
2. In this petition which is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed that the order dated 21.10.2011 passed by the 3rd Additional Senior Civil Judge & Judicial Magistrate First Class, Porbandar below application Exh.21 as well as order dated 10.11.2014 passed by the Additional Sessions Judge, Porbandar in Criminal Revision Application No.51 of 2011 be quashed and set aside and thereby the petitioner be discharged from the proceedings arising out of the FIR being C.R.No. II-3046 of 1998 registered with Udyognagar Police Station as well as Criminal Case No.8484 of Page 1 of 6 Downloaded on : Wed Dec 23 22:40:20 IST 2020 R/SCR.A/740/2015 ORDER 2000.
3. Heard learned Senior Advocate Mr. N.D.Nanavaty assisted by learned advocate Mr. Yash Nanavaty for the petitioner and learned Public Prosecutor Mr. Mitesh Amin for the respondent - State.
4. Learned counsel appearing for the petitioner has mainly contended that the petitioner has been implicated only on the basis of the statement of the co-accused in the FIR in question and even after the investigation is over there is no material in the papers of the charge-sheet against the present petitioner implicating him with the incident in question. In support of the said submission, learned counsel has referred the FIR. After referring the same, it is submitted that original accused No.1 - Hasmukh @ Haslo Siddi Koli was arrested from his house and during the search one pistol as well as revolver were found loaded with cartridge. When the complainant Police Inspector inquired, the original accused stated that the said weapons were given by original accused Nos. 2 and 3 (No.3 being the present petitioner) last year in presence of one Mer Karshan @ Keno Balu.
5. Learned counsel thereafter referred the papers of the charge-sheet and submitted that statement of Mer Karshan @ Keno Balu has not been recorded by the investigating agency during the course of investigation. Learned counsel has also referred the other statements of the concerned police officers which are placed on record and thereafter contended that in the papers of the charge-sheet there is no material Page 2 of 6 Downloaded on : Wed Dec 23 22:40:20 IST 2020 R/SCR.A/740/2015 ORDER against the petitioner and therefore petitioner filed an application Exh.21 before the concerned trial Court. Learned counsel has, thereafter, referred the impugned order passed by the concerned trial Court and contended that trial Court has committed an error while placing reliance upon the statements of the police officers. It is further submitted that order dated 21.10.2011 passed by the trial Court was challenged by the petitioner by filing revision application before the concerned Sessions Court. However, the Sessions Court has also rejected the revision application vide impugned order dated 10.11.2014. Learned counsel has referred the reasoning recorded by the Sessions Court in the impugned order and contended that the Sessions Court has wrongly placed reliance upon Section 10 of the Evidence Act. It is submitted that the said provisions would not be applicable in the facts of the present case.
6. Learned counsel has, thereafter, placed reliance upon the decision rendered by this Court in the case of Suresh Chhotalal Verma v. State of Gujarat, reported in 2001 (2) GLR 1029 and submitted that this Court, in similar type of case, quashed and set aside the FIR and the charge-sheet. It is, therefore, urged that both the impugned orders be quashed and set aside and the petitioner be discharged from the aforesaid case.
7. On the other hand, learned Public Prosecutor Mr. Mitesh Amin has referred the impugned order passed by the concerned Sessions Court and thereafter contended that the Sessions Court has not committed any error while rejecting the revision application filed by the Page 3 of 6 Downloaded on : Wed Dec 23 22:40:20 IST 2020 R/SCR.A/740/2015 ORDER present petitioner. However, learned Public Prosecutor has fairly submitted that there is no material in the papers of the charge-sheet connecting the present petitioner with the incident in question. It is also submitted that petitioner has been implicated only on the basis of the statement of the co-accused. After referring to the charge-sheet papers, learned Public Prosecutor further submitted that the investigating agency has not recorded the statement of Mer Karshan @ Keno Balu in whose presence the alleged weapons were given to the original accused No.1 by the present petitioner as well as original accused No.2.
8. Thus, from the aforesaid submissions canvassed by learned counsel appearing for the parties, it is clear that the investigating agency has arrested original accused No.1 and the accused No.1 stated before the complainant - Police Inspector that the alleged weapons were given to him by the original accused Nos. 2 and 3. As observed above, petitioner is original accused No.3. It is further revealed from the record that it is the specific case of the prosecution that the original accused No.1 stated that the said weapons were given in presence of one Mer Karshan @ Keno Balu. However, from the record it is revealed that statement of the said witness Mer Karshan @ Keno Balu has not been recorded by the investigating agency. Learned Public Prosecutor has verified the said aspect. Thus, in the papers of the charge-sheet, there is no material available against the petitioner connecting him with the incident in question. Thus, the present petitioner is implicated in the incident in question only on the basis of the statement of the co-accused.
Page 4 of 6 Downloaded on : Wed Dec 23 22:40:20 IST 2020R/SCR.A/740/2015 ORDER 9. Learned Public Prosecutor has also fairly
submitted that provisions contained in Section 10 of the Evidence Act would not be applicable to the facts of the present case.
9.1. In that view of the matter, this Court is of the view that both the Courts below have committed an error while rejecting the application filed by the petitioner.
10. At this stage, this Court would like to refer to the decision rendered by this Court in the case of Suresh Chhotalal Verma (supra), wherein this Court has observed in para 4 as under:
"[4] Record of the lower Court has been
examined, and it is found that except the
statement of the co-accused No. 1, there is no other material against the revisionist. That statement was made by accused No. 1 during investigation to the police. For all purposes, it can be said that to be mere statement under Sec. 161 of Cr. P. C., statement under Sec. 161 of Cr. P. C., cannot be used as substantive evidence during the trial against co accused. It cannot be said to be a confession of a co- accused which can be used against another co- accused. For that also, formalities are required to be observed, namely, the investigating officer should have recorded the confession by taking requisite precautions that the same is recorded as confession of the co-accused. The Page 5 of 6 Downloaded on : Wed Dec 23 22:40:20 IST 2020 R/SCR.A/740/2015 ORDER statements of the witnesses recorded during the course of the investigation did not in any way implicate the revisionist in the proceedings pending before the Court below."
11. Keeping in view the aforesaid decision if the facts of the present case are examined, this Court is of the view that there is no material against the present petitioner in the papers of the charge-sheet on the basis of which charge can be framed against the petitioner and therefore the concerned trial Court ought to have discharged the petitioner.
12. In view of the aforesaid discussion, petition is allowed. Impugned order dated 21.10.2011 passed by the 3rd Additional Senior Civil Judge & JMFC, Porbandar below application Exh.21 as well as order dated 10.11.2014 passed by the Additional Sessions Judge, Porbandar in Criminal Revision Application No.51 of 2011 are hereby quashed and set aside. Application Exh.21 filed by the petitioner is, therefore, allowed and petitioner is discharged from the proceedings arising out of the FIR being C.R.No. II-3046 of 1998 registered with Udyognagar Police Station as well as Criminal Case No.8484 of 2000. Rule is made absolute.
(VIPUL M. PANCHOLI, J) SRILATHA Page 6 of 6 Downloaded on : Wed Dec 23 22:40:20 IST 2020