Gujarat High Court
Lavjibhai Amarshibhai Bhalodiya vs State Of Gujarat & 8 on 22 March, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/3167/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (TRANSFER) NO. 3167 of 2016
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LAVJIBHAI AMARSHIBHAI BHALODIYA....Applicant(s)
Versus
STATE OF GUJARAT & 8....Respondent(s)
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Appearance:
MR NISHITH P THAKKAR, ADVOCATE for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2 - 6 , 8
J K GANDHI, ADVOCATE for the Respondent(s) No. 9
ADD. PUBLIC PROSECUTOR for the Respondent(s) No. 1
RAHUL SHARMA, ADVOCATE for the Respondent(s) No. 7
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/03/2017
ORAL ORDER
1. This is an application at the instance of the complainant purported to be one under section 407 of the Cr.P.C. read with section 482 of the Cr.P.C.
2. The reliefs prayed for are as under;
"(A) Your Lordships may be pleased to admit and allow this petition under Sec. 482 of Cr.P.C.
(B) Your Lordships may be pleased to transfer Criminal Case No.3514 of 2013 pending before the Ld. 3rd JMFC Court, Viramgam, to the court of Chief Judicial Magistrate at Ahmedabad or any other court, competent to try the case.
(C ) Be further pleased to direct the concerned court to conduct denovo trial with all fairness and protection top Page 1 of 13 HC-NIC Page 1 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER complainant as well as A.P.P. (D) Pending admission and final hearing of this application your lordships be pleased to direct the stay of further proceedings of Criminal Case No.3514/2013 pending before 3rd Addl. J.M.F.C. Court, Viramgam.
(E) That any other and further relief which may fit, looking to the circumstances of the present granted in the interest of justice."
3. The applicant herein lodged a first information report at the Viramgam Rural Police Station, Ahmedabad for the offence punishable under sections 323, 384, 389 and 120-B of the Indian Penal Code against, in all, seven persons, which includes a Police Officer. The Police Officer is shown as an accused No.7 in the first information report, namely, Jagdishbhai. He has been denied bail by the court below and is in the judicial custody having regard to his past antecedents.
4. The case of the applicant herein, being the original complainant, is one of extortion and blackmailing. The investigation was completed and the charge-sheet came to be filed. The filing of the charge-sheet culminated in the Criminal Case No.3514 of 2013 before the 3rd J.M.F.C. Court, Viramgam.
5. In the course of the trial, the prosecution examined, in all, 36 witnesses, out of those, 17 witnesses turned hostile. Excluding the 17 witnesses, out of the remaining 19 witnesses, 8 turned hostile and 11 witnesses fully supported the case of the prosecution including the complainant, i.e., the applicant herein.
6. It appears that while the trial was in progress, the Public Page 2 of 13 HC-NIC Page 2 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER Prosecutor, in charge, was threatened by the accused persons. He brought this to the notice of the learned Magistrate. Later on, one another Public Prosecutor was assigned the matter. The applicant herein also preferred one application Exh. 80 to take appropriate steps against the accused persons for their conduct of administering threats in the mids of the trial. The application Exh. 80 came to be rejected by the Trial Court observing that it would be open for the applicant to take appropriate steps in that regard in accordance with law.
7. Mr. Thakkar, the learned counsel appearing for the applicant vehemently submitted that right from the commencement of the trial till the end, the accused persons dominated and did not allow the Public Prosecutor to act in a fair and impartial manner. The Public Prosecutor conducted the trial under pressure and, on account of which, he might not have been in a position to lead proper evidence on behalf of the prosecution. In such circumstances, Mr. Thakkar submits that let there be a denovo trial after transferring the case from the existing court to the court of the Chief Judicial Magistrate at Ahmedabad. The trial now is at the stage of pronouncement of the judgment.
8. On 22nd June, 2016, a Coordinate Bench of this Court passed the following order;
"According to the learned Additional Public Prosecutor, the arguments in the criminal case have been concluded. The matter is now posted for orders. The petitioner has preferred present petition seeking transfer of the case.
1. Let a notice be issued to the respondents, returnable on July 12, 2016. Till the returnable date, Page 3 of 13 HC-NIC Page 3 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER the trial Court shall not pronounce the judgment in the matter, however, it may allow the parties to complete the submissions.
The formal service of notice is waived by the learned Additional Public Prosecutor on behalf of the respondent No.1-State. The learned Additional Public Prosecutor ensures that the Investigating Officer shall remain present before this Court with the papers of investigation.
Direct Service is permitted. To be served through the concerned Police Station."
9. On the other hand, this application has been vehemently opposed by Mr. Sharma, the learned counsel appearing for the respondent No.7 herein, and by the learned APP appearing for the State.
10. Both the learned counsel submits that no case is made out for a denovo trial and, that too, after transferring the case to another court. The learned APP appearing for the State, after taking instructions from the concerned Public Prosecutor, who was in charge of the case, in the last, submits that the evidence has been recorded to the satisfaction of the Public Prosecutor. Although, the panch witnesses and the other interested witnesses have not supported the case of the prosecution, yet 11 witnesses, which includes few officers of the police department, and the complainant, i.e. the applicant herein, have fully supported the case of the prosecution. According to the learned APP, it cannot be said that the trial was conducted in the conditions not at all conducive for effective administration of justice.
11. Mr. Sharma, the learned counsel appearing for the respondent No.7, submits that this application is nothing but a Page 4 of 13 HC-NIC Page 4 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER dilatory tactic adopted by the complainant to delay the pronouncement of the judgment so that his client remains in jail for a long time.
12. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the applicant is entitled to the relief prayed for.
13. In Zahira Habibulla H. Sheikh and another vs. State of Gujarat and others (2004) 4 SCC 158, the Supreme Court, in paras-36, 43 and 56, observed as under;
"36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The Page 5 of 13 HC-NIC Page 5 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER failure to hear material witnesses is certainly denial of fair trial.
43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence-collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
56. As pithily stated in Jennison v. Baker: (All ER p. 1006d) "The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope."
Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large.If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to Page 6 of 13 HC-NIC Page 6 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (See Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble [(2003) 7 SCC 749 : 2003 SCC (Cri) 1918]"
14. In a very recent pronouncement of the Supreme Court in the case of Ajay Kumar Ghoshal vs. State of Bihar & Anr., AIR 2017 SC 804, the Supreme Court has explained in what circumstances, the Court can order a denovo trial. I may quote the observations as under;
"8. In para (29) of its judgment, the High Court pointed out certain lapses; but has not stated as to how such alleged lapses has resulted in miscarriage of justice necessitating retrial. Certain lapses either in the investigation or in the 'conduct of trial' are not sufficient to direct retrial. The High Court being the First Appellate Court is duty bound to examine the evidence and arrive at an independent finding based on appraisal of such evidence and examine whether such lapses actually affect the prosecution case; or such lapses have actually resulted in failure of justice. The circumstances that should exist for warranting retrial must be such that whether the trial was undertaken by the court having no jurisdiction or trial was vitiated by serious illegality or irregularity on account of misconception of nature of proceedings or that irregularity has resulted in miscarriage of justice.
9. The High Court copiously extracted the judgment in case of Nar Singh vs. State of Haryana (2015) 1 SCC 496 to remit the matter to the trial court for proceeding afresh. In Nar Singh's case, some of the important questions like Ballistic Report and certain other incriminating evidence were not put to the accused and the same was not raised in the trial court or in the High Court. It was felt that the accused should have been questioned on those incriminating evidence and circumstances; or otherwise prejudice would be caused to the accused. In such peculiar facts and circumstances, Nar Singh's case was remitted to the trial court for proceeding afresh from the stage of Section 313 Cr.P.C. Be it noted that in Nar Singh's case, this Court has Page 7 of 13 HC-NIC Page 7 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER referred to a catena of other judgments holding that omission to put certain questions to the accused under Section 313 Cr.P.C. would not cause prejudice to the accused. It depends upon facts and circumstances of each case and the nature of prejudice caused to the accused. In our view, the High Court has not properly appreciated Nar Singh's case where this Court laid down that the appellate court can order for fresh trial from the stage of examination under Section 313 Cr.P.C., only in cases where failure to question the accused on certain incriminating evidence has resulted in serious prejudice to the accused. The High Court, in our view, has not properly appreciated the ratio laid down in Nar Singh's case and erred in applying the same to the present case.
10. Section 386 Cr.P.C. deals with the powers of the appellate court. As per Section 386 (b) Cr.P.C, in an appeal from a conviction, the appellate court may:- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.
11. Though the word "retrial" is used under Section 386(b)(i) Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard.
12. 'De novo' trial means a "new trial" ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated Page 8 of 13 HC-NIC Page 8 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold 'de novo' trial. But the question is when such power should be exercised. As stated in Pandit Ukha Kolhe vs. State of Maharashtra (1964) SCR 926, the Court held that: "An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons."
13. This Court, while dealing with the question whether the High Court should have quashed the trial proceedings only on account of declaration of the legal position made by the Supreme Court concerning the procedural aspect about the cases involving offences under the SC/ST Act, this Court stated, "a de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable; it should be limited to the extreme exigency to avert 'a failure of justice'. Observing that any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial". In State of M.P. vs. Bhooraji and Ors. (2001) 7 SCC 679, the Court went on to say further as follows:
"8....This is because the appellate court has plenary powers for Page 9 of 13 HC-NIC Page 9 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER revaluating and reappraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence, the said course can be resorted to when it becomes unpreventable for the purpose of averting "a failure of justice". The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation."
14. In Bhooraji's case, the Court referred to Chapter XXXV of the Code and, particularly, Sections 461, 462 and 465 (1). After noticing the above provisions, the Court observed in paragraphs (15) and (16) of the order as follows:
"15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
16. What is meant by a failure of justice occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani vs. State of Karnataka {2001 Page 10 of 13 HC-NIC Page 10 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER (2) SCC 577} thus:
"23. We often hear about failure of justice and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression failure of justice would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment, 1977 (1) All E.R. 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."
15. In Gopi Chand vs. Delhi Administration AIR 1959 SC 609, a Constitution Bench of this Court was concerned with the criminal appeals wherein plea of the validity of the trial and of the orders of conviction and sentence was raised by the appellant. That was a case where the appellant was charged for three offences which were required to be tried as a warrant case by following the procedure prescribed in the Code of Criminal Procedure, 1860 but he was tried under the procedure prescribed for the trial of a summons case. The procedure for summons case and warrants case was materially different. The Constitution Bench held that having regard to the nature of the charges framed and the character and volume of evidence led, the appellant was prejudiced; accordingly, set aside the orders of conviction and sentence and the Constitution Bench held as under:-
"29. ....the offences with which the Appellant stands charged are of a very serious nature; and though it is true that he has had to undergo the ordeal of a trial and has suffered rigorous imprisonment for some time that would not justify his prayer that we should not order his retrial. In our opinion, having regard to the gravity of the offences charged against the Appellant, the ends of justice require that we should direct that he should be tried for the said offences de novo according to law. We also direct that the proceedings to be taken against the Appellant hereafter should be commenced without delay and should be disposed as expeditiously as possible."Page 11 of 13
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16. In Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors. (2004) 4 SCC 158, [Best Bakery case] being an extraordinary case, the Supreme Court was convinced that the witnesses were threatened to keep themselves away from the Court and in such facts and circumstances of the case, not only the Court directed a 'de novo' trial but made further direction for appointment of the new prosecutor and retrial was directed to be held out of the State of Gujarat. The law laid down in Best Bakery case for retrial was in the extraordinary circumstances and cannot be applied for all cases..
15. This is a case, in which, a denovo trial is being prayed for even before the judgment and order is pronounced by the Trial Court. The Trial Court is yet to determine the guilt or innocence of the accused on the overall appreciation of the evidence on record. The only ground, on which, transfer to another court of the criminal case is prayed for with a direction for a denovo trial is that many witnesses turned hostile and they might have turned hostile because of the pressure or the influence of the accused persons, more particularly, the accused No.7, who is a police officer. It is true that there was a complaint at a point of time at the instance of the Public Prosecutor also of unnecessary interference at the end of the accused persons, but the record reveals that, thereafter, another Public Prosecutor was assigned with the case, and to her satisfaction, the evidence was recorded and closed. As noted above, out of 36 witnesses, 11 witnesses have full fledged supported the case of the prosecution, including the complainant himself.
16. Just because some of the witnesses have turned hostile, more particularly, the panch witnesses, by itself, would not be sufficient to order a denovo trial. Something substantial should be shown, on the basis of which, the Court can reach to the conclusion that the trial has not been conducted in a fair and Page 12 of 13 HC-NIC Page 12 of 13 Created On Thu Mar 23 01:03:57 IST 2017 R/SCR.A/3167/2016 ORDER transparent manner and obstructions were raised in the way of the prosecution in leading the appropriate and cogent evidence.
17. In the overall view of the matter, I see no good reason to grant the relief as prayed for by the applicant herein.
18. In the result, this writ application fails and is hereby rejected. The Trial Court shall now proceed to pronounce the judgment in accordance with law. Notice is discharged.
(J.B.PARDIWALA, J.) Vahid Page 13 of 13 HC-NIC Page 13 of 13 Created On Thu Mar 23 01:03:57 IST 2017