Gujarat High Court
State Of Gujarat vs Ramasi Devasi Bhil Alias Chakala on 16 February, 1990
Equivalent citations: 1991CRILJ2801, (1990)2GLR1196
JUDGMENT A.P. Ravani, J.
1. The facts leading to this criminal miscellaneous application be briefly stated. In sessions case No. 91 of 1984 one Ramji Devasi Bhil alias Chakla was also arraigned as accused along with other five accused. All of them were charged for offence punishable Under Section 302 read with Sections 147, 148 & 149 of I.P.C. and for offence Under Section 135 of the Bombay Police Act. Alternatively they were charged for offence punishable Under Section 302 read with Section 34 of I.P.C. and also for offence punishable Under Section 37(1) of the Bombay Police Act. It was alleged that on July 8, 1984 at about 1-30 p.m. at village Chalva Taluka Deodar, in the field of one Rabari Malabhai all the accused had assembled in unlawful assembly and had caused injuries to one Kanjibhai Bhanabhai by means of deadly weapons, like 'katar' (a crescent snapped weapon) and sticks. It was also alternatively alleged that all the accused had common intention of causing death of deceased Kanjibhai and in furtherance of their common intention they had caused injury by means of deadly weapons on the person of the deceased and thereby had caused his death; that at the time of committing the aforesaid offence the accused were in possession of deadly weapons in contravention of the relevant notifications issued under the relevant provisions of the Bombay Police Act and thereby the accused were also charged for committing offence punishable Under Section 37(1) read with Section 135 of the Bombay Police Act. The charge was framed on April 2, 1985.
2. Accused No. 3 Bhil Chakla alias Ramji Devasi submitted an application Exh. 13 to the Court of Sessions on April 18, 1985 praying that he be granted pardon and he be examined as approver. The application was submitted through the Superintendent, Palanpur Sub Jail. The learned Additional Sessions Judge, after hearing the learned Public Prosecutor and the advocate for the accused passed a detailed, reasoned order and allowed the application, as per his order dated May 7, 1985. The learned Additional Sessions Judge directed that accused No. 3 (i.e. Bhil Chakla alias Ramji Devasi) be given pardon on condition that he makes a true and full disclosure of the whole of the circumstances within his knowledge, relating to the offence, and his statement be recorded Under Section 164 of the Criminal Procedure Code on 9-5-1985.
3. Thereafter on behalf of other five accused Criminal Revision Application No. 229 of 1985 was filed in this High Court challenging the legality and validity of the order passed by the learned Additional Sessions Judge granting pardon to original accused No. 3. That revision application came up for hearing before this High Court (Coram : A.S. Qureshi, J.) on June 3, 1985. Learned counsel appearing for the applicants-original accused withdrew the revision application and thereupon the Court passed the following order:
"Mr. S.M. Shah, learned counsel for the petitioner seeks permission to withdraw the petition. Permission is granted. Petition stands disposed of as withdrawn."
On July 5, 1985 as directed by the learned Additional Sessions Judge, statement of original accused No. 3 i.e. Bhil Chakla alias Ramji Devasi was recorded.
4. On July 9, 1985 another revision application being Criminal Revision Application No. 315 of 1985 was filed by all the other five accused. That revision application was admitted by this Court (Coram : D.C. Cheewala, J.) and interim relief as regards stay of further proceedings of Sessions Case No. 91 of 1984 as prayed for was granted. That revision application came up for final hearing on August 19, 1985. Learned counsel for the applicants sought permission to withdraw the revision application and the prayer has been granted by the Court on August 9, 1985. Interim relief granted earlier was vacated.
5. Thereafter, the trial court proceeded further. The evidence of the approver was recorded on December 8, 1985. Deposition of other witnesses were recorded later on. Ultimately, as per judgment and order dated February 17, 1986, the learned Additional Sessions Judge held all the accused guilty of offence punishable Under Section 302 read with Section 149 and Sections 147 and 148 of I.P.C. and ordered them to undergo R.I. for life. The accused felt aggrieved by the aforesaid judgment and order of conviction and sentence passed by the trial court and have preferred Criminal Appeal No. 372 of 1986. The appeal was admitted by this Court (Coram : J.P. Desai and B.S. Kapadia, JJ.) on March 27, 1986. The Court passed the following order:
"Admit. Bail refused. The learned Advocate Mr. S.M. Shah for the appellant undertakes to supply the paper book. As soon as Mr. Shah supplies the paper-book, the matter to be fixed for final hearing at the earliest, preferably before vacation or soon after the opening of the Court after vacation."
On April 28, 1986 the matter came up for hearing before the Court (Coram : D.C. Gheewala and J.P. Desai, JJ.) and the Court has passed the following order:
"When the matter was admitted on 27-3-1986, prayer for bail of the appellants was refused, but at the same time the matter was fixed for early hearing. When the matter came up for hearing today we felt that Approver Ramsi Devasi Bhil alias Chakla who was granted pardon, has never inculpated himself at any stage of the proceeding and hence the pardon granted to him on the face of it appears to be illegal. In that view of the matter, we are directing that a show cause notice should be issued against said Ramji Devasi Bhil alias Chakla of village Chalava, Tal. Deodar, District : Banaskantha to be made returnable on 21st July 1986 asking him to show cause why his pardon should not be cancelled and why he should not be directed to be tried for the offence in question. At the time when the matter was admitted, the bail application of the appellant was rejected, but in view of what is stated above, we feel that the appellants who were on bail throughout the trial, should be released on bail and hence each of the present-appellants are ordered to be released on bail of Rs. 9000/- with one surety in like amount till the final disposal of this appeal. Notice to issue to said Ramji Devasi Bhil alias Chakla of village Chalava as indicated above. The matter to be treated as part heard before this Court.
Pursuant to the aforesaid order notice has been issued to the approver Ramji Devasi Bhil alias Chakla. The approver Ramji Devasi Bhil alias Chakla has been served with notice but he has not engaged any advocate. Having regard to his financial condition he could not engage any advocate and he requested the Court to provide him with legal assistance. Therefore, the Court has appointed learned counsel Mr. K. B. Anandjiwala to appear as amicus curiae and assist the Court. This is how this criminal miscellaneous application has arisen. We are told that the matter was heard for some time by the Division Bench which issued notice, but somehow or other the matter has remained pending, and now both the learned Judges having retired the matter is placed before another Division Bench.
6. Learned counsel Mr. S.M. Shah appears for the appellants-accused in Criminal Appeal No. 372 of 1986. He was present before the Court yesterday. He stated that he would not remain present before the Court tomorrow i.e. on February 16, 1990 and stated that he did not wish to make any submission whatsoever. According to him, the Court had issued notice and therefore it was a matter between the Court and the approver. After making this declaration he further submitted that his presence may be excused. Accordingly he has been granted leave to remain absent.
7. Learned counsel Mr. K.B. Anandjiwala submitted that as per order dated April 28, 1986 passed by this Court, the basis of issuing the notice is that the approver has never inculpated himself at any stage of the proceedings. Therefore, the pardon granted to him on the face of it appears to be illegal. In his submission, the very basis of notice is erroneous. It is not necessary to inculpate for any person who may be granted pardon by the Court as provided Under Sections 306 and 307 of the Code of Criminal Procedure. It is also submitted that such person even may not have participated in the commission of the crime. The important words in Section 306 of the Code of Criminal Procedure are "any person supposed to have been directly or indirectly connected in or privy to an offence to which this section applies". These words are to be found in Section 307 of Cri. Procedure Code also.
8. Analysing the provisions of Sections 306 and 307 of Criminal Procedure Code, the position that emerges is as follows:
(i) approver may be any person;
(ii) such a person should be supposed to have been directly or indirectly concerned in an offence to which the section applies;
(iii) such a person should be supposed to be privy to an offence to which the section applies.
Therefore, all that was required to be seen by the learned Additional Sessions Judge was as to whether the approver was supposed to have been directly or indirectly concerned with the offence or that he was supposed to have been privy to the offence. The emphasis is on the word 'supposed'. 'Supposed' does not mean that such a person should have actually participated in the crime. The dictionary meaning of the term "supposition" as per Black's Law Dictionary is as follows:
"A conjecture based upon possibility or probability that a thing could or may have occurred, without proof that it did occur."
Dictionary meaning of the term "suppose" as per Oxford Advanced Learner's Dictionary of Current English is:
"Let it be thought that; take it as a fact that,"
Thus the very basis of the Section is that a person who applies for pardon under the provisions of Sections 306 and 307 of the Code of Criminal Procedure can be assumed to be directly or indirectly concerned in the offence. Similarly, he may be assumed to be privy to an offence. The assumption does not mean that he is party to the offence. Thus the person applying may not be actual culprit. If he is not actual culprit, there does not arise any question of exculpating one's own self.
9. Further such a person should be supposed to be directly or indirectly concerned or privy to offence. Meaning of the term 'concerned' also shows that such a person may be somehow directly or indirectly connected with the offence. He may have some interest therein or the incident which led to the offence may be of some importance to him. The dictionary meaning of the term "privy" is "having secret knowledge of. If one refers to Black's Law Dictionary, the term "privy" means, "a person who is in privity with another. One who is a partaker or has any part or interest in any action, matter or thing". Again, if one refers to the meaning of the term "privity", one of the meanings in Black's Law Dictionary is, "private knowledge; joint knowledge with another of a private concern cognizance implying a consent or concurrence".
10. Thus the provisions of Sections 306 and 307 of the Code of Criminal Procedure even do not remotely indicate that the person who seeks pardon, and who may be granted pardon by the Court, should have actually participated in the commission of the crime. Therefore, the question arises:
"A person who may be eligible for grant of pardon need not be a person who might have committed the crime. Even so, can it be insisted that a person can be granted pardon only if he shows at any stage of the proceedings that he has 'inculpated' himself in the crime?"
This would be contradiction in the term, 'Participation' in the crime, that is inculpation is not the requirement of the section. Therefore, the very basis that the approver should have disclosed during the proceedings that he had inculpated himself in the commission of the crime and then only he could have been granted pardon cannot be sustained. The submission made by the learned counsel Mr. Anandjiwala is just and proper and deserves to be accepted.
11. Learned counsel Mr. M. A. Bukhari appearing for the State has also supported the aforesaid submission made by learned counsel Mr. K. B. Anandjiwala. As indicated hereinabove, Mr. S. M. Shah appearing for the accused did not wish to make any submission. In view of the aforesaid submissions made by the learned counsel appearing for the parties and in view of aforesaid discussion, we are also of the opinion that inculpation of the approver in the commission of a crime is not a necessary condition for being pardoned as provided Under Section 306 and 307 of the Code of Criminal Procedure.
12. Even assuming for a moment that inculpation of the approver is necessary and he should have inculpated in the commission of the crime, then that requirement is also fulfilled in the facts of the case. Every person is bound to inform the appropriate authority regarding the commission of an offence. This is so provided Under Section 202 of I.P.C. It reads as follows:
"202. Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."
It may be noted that as provided Under Section 39 of the Code of Criminal Procedure, public is required to give information of certain offences. The offences mentioned in the section inter alia include offences Under Sections 143, 144, 145, 147 and 148 and offences Under Section 302 of I.P.C. In view of the aforesaid provisions, it was the duty of the accused under the provisions of Section 39 of the Code of Criminal Procedure to inform the appropriate authority regarding the commission of offence, of formation of unlawful assembly and that of causing death of Kanjibhai. In his statement Under Section 164 of the Code of Criminal Procedure and in his deposition before the learned Additional Sessions Judge recorded at Exh. 18, the approver has stated that he knew about the commission of the offence and he has not informed any one whomsoever. Thus he has 'inculpated' himself. In this view of the matter, even on facts, the notice against the approver cannot be sustained. This submission also stands to reason. Learned counsel appearing for the State has also supported this submission. Thus even if the notice is required to be explained as it stands, the same stands sufficiently explained and it is required to be dropped.
13. Learned counsel Mr. K. B. Anandji-wala has relied upon a decision of the Supreme Court in the case of State (Delhi Administration) v. Jagjit Singh, AIR 1989 SC 598 : (1989 Cri LJ 986). In his submission, once pardon is granted under the provisions of Section 306 and 307 by the Court, the pardon cannot be revoked by the Court unless the procedure indicated in Section 308 of the Code of Criminal Procedure is followed. As provided Under Section 308 of the Code of Criminal Procedure, learned prosecution appearing in the case should certify that the approver has willfully concealed material facts or has falsely deposed before the Court. Thereafter, as provided Under Section 308 of the Code of Criminal Procedure, the matter is required to be referred to the High Court and the High Court may order that the accused be prosecuted for offence of purjury and also for the offence for which he was pardoned. Admittedly no such certificate has been issued by the learned Public Prosecutor.
14. However, as to whether the provisions of Section 308 of the Code of Criminal Procedure would be applicable to a case where the High Court takes suo motu notice of certain facts appearing on record and issues notice will be a debatable question. We do not intend to go in to this question. On facts, we are of the opinion that the accused has inculpated himself and even if it is necessary that the approver should disclose inculpation in the commission of the offence, then the requirement is also fulfilled in this case. Therefore, on the facts of the case, the notice cannot be sustained. Assuming for a moment that this requirement is not fulfilled by the accused, then as far as the provisions of Sections 306 and 307 of the Code of Criminal Procedure are concerned, we do not find that it is necessary for the approver to disclose that he has inculpated himself in the commission of the crime. For coming to this conclusion, we have already indicated our reasons.
15. For the aforesaid reasons, the notice is ordered to be dropped. The application stands dismissed accordingly. Learned Counsel Mr. K. B. Anandjiwala has rendered considerable assistance to the Court and the same is highly appreciated.