Navnitbhai Harmanbhai Patel vs State Of Gujarat & 5 on 16 February, 2016

[Cites 26, Cited by 2]

Gujarat High Court

Navnitbhai Harmanbhai Patel vs State Of Gujarat & 5 on 16 February, 2016

HC-NIC Page 1 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT 1 By this writ application under Article 227 of the Constitution of India, the petitioner calls in question the legality and validity of the order dated 6th April, 2010 passed by the learned Sessions Judge, Anand in the Criminal Revision Application (Suo Motu) No.447 of 2009, by which, the learned Sessions Judge ordered retrial of the Criminal Case No.1894 of 2006, which resulted in acquittal of the petitioner herein, who was one of the accused persons along with the others.

2 The genesis of this litigation lies in the proceedings which were taken up by a Division Bench of this Court in a public interest litigation initiated by the respondent No.6 herein.

3 I deem fit to give a fair idea of the public interest litigation which was initiated by the respondent No.6.

4 The respondent No.6 herein preferred the Special Civil Application No.2210 of 1993, in public interest, before this Court with a prayer to quash and set aside the resolution dated 4 th June, 1991 passed by the Anand Area Development Authority, which was approved by the President, Anand Municipality, Anand, on 12th June, 1991. In the said litigation, it was also prayed that the document entered into between one Jivaben and others with the Senior Assistant of the A.A.D.A., be cancelled. A direction was sought against the respondent No.4 of that litigation to handover the vacant and peaceful possession of the entire plot of land being part and parcel of the Final Plot No.270 of the Town Planning Scheme No.4, Anand to the Anand Municipality. It was also prayed that the State Government be directed to take an appropriate action against the erring respondents, including the Revenue Officers involved in the scam.

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HC-NIC Page 2 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT 5 The said public interest litigation came to be disposed of by the Division Bench of this Court vide judgment and order dated 23 rd April, 2001. I may quote the facts, as recorded by the Division Bench in the judgment, as contained in paras 4, 5, 6, 6.1, 7, 7.1, 7.2, 7.3, 7.4, 7.5, 8, 8.1 and 9, as under:

"4. The land bearing Survey No. 1934/4, admeasuring about 210 acres, which was assessed at Rs.1120 situated at village Anand, was in the names of Bhaijibhai Nanabhai, Bhathibhai Surabhai etc. before 1958 on new tenure conditions under the Bombay Land Revenue Code. Shri Lallubhai Jenabhai and Mangalbhai Surabhai were in possession of the aforesaid parcel of land and they stated before the Revenue Authority that they had mortgaged the land to Shri Vajabhai Ramabhai. Thus, the Revenue Authority namely; Prant Officer, Anand, considering the facts and circumstances, arrived at a conclusion that there was a clear breach of condition and, therefore, ordered that the land be forfeited to the Government and entered as Government waste land. The Prant Officer further directed that necessary mutation entry be effected in the village record and entry be made in the New Tenure Land Register. The Prant Officer observed in his order that if original occupants, namely; Bhaijibhai Nanabhai and Bhathibhai Surabhai are willing to get the possession of the land, then, on condition of payment of occupancy price equal to 15 times the assessment plus the cost of trees, huts etc. which was fixed at Rs.331/ plus local fund, cess thereon, the same be handed over, considering the first default on the part of the original occupants and also as the land was required for cultivation for maintenance of the family. The Prant Officer assessed the amount and granted the land to the original occupants by way of regrant on inalienable and impartible tenure conditions on payment of Rs.167140 as occupancy price, equivalent to 15 times assessment plus the cost of trees etc. at the rate of Rs.331/ plus local funds, cess thereon, subject to further conditions, namely; (i) that the grantees shall take soil conservation measures in consultation with the Agriculture Department; (ii) that the grantees shall not allow the land to be uncultivated for the consecutive years failing which the land shall stand forfeited to the Government; and, (iii) that the grantees shall execute an agreement in Form I(i) within a period of two months from the date of grant. As the amount as aforesaid was not paid and the conditions as aforesaid were not fulfilled, the land was forfeited to the Government. Nothing was done by the aforesaid grantees after the order was passed on 24/01/1958 and, therefore, the land, which was forfeited as per the order made by the Prant Officer, was entered in the relevant record in the name of Government. There was no regrant as per the order of the Prant Officer.

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HC-NIC Page 3 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT

5. The State Government under Resolution dated 03/03/1964 was pleased to grant revenuefreeland, admeasuring about 2 Acre 10 Guntha of Survey No. 1934/4 of Anand Taluka, Anand, District valued at revenue free holding at Rs.7905/ for the purpose of construction of School Building in Mangalpur in Anand subject to conditions laid down in Rule 36(1) of the Land Revenue Code, in favour of Anand Municipality. In view of this resolution, the Collector on 13/08/1964 addressed a letter to the President, Anand Municipality, the copy of which is produced at Annexure H. Reading the letter, it is very clear that the school building was to be constructed within a period of 2 years from the date of handing over the possession of the land. The plans of the building were to be approved by the Collector and no addition or alteration was permissible without prior permission of the Collector. The School should be open for all eligible pupils. It is specifically mentioned in the condition No.4 that land and building thereon should be used for the purpose for which the grant was made and for no other purpose. This grant was again subject to condition, i.e. the continued recognition of the School by the Education Department. After the Collector entrusted the land to the Municipality, the building was also constructed by the Anand Municipality. In view of this grant, since 1964, the land stood in the name of Anand Municipality.

6. A Scheme was framed for Anand Town under the provisions contained in the Bombay Town Planning Act, 1954 (for short referred to as the `Planning Act'). A notification was issued for sanctioning the scheme on 21/07/1978, the copy of which is produced at AnnexureA. The Government of Gujarat, in exercise of the powers conferred by Subsection (2) of Section 28 of the Planning Act, sanctioned the draft Town Planning Scheme, Anand, No.4 which was submitted to it by Anand Municipality.

Under the Planning Act, a Town Planning Officer for the scheme was appointed who submitted to the Government of Gujarat the Town Planning Scheme Anand, No.4 (Final) as required under Subsection (2) of Section 43 of the Planning Act. In exercise of the powers conferred under the provisions contained in the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the 'Development Act'), the Government of Gujarat sanctioned the said final scheme and fixed the 11th day of September, 1978 as the date for the purpose of Clause (b) of Subsection (2) of Section 65 of the Development Act.

6.1 The petitioners have placed on record Form B (Rule 17 & 29 of the Bombay Town Planning Rules), which is at Annexure B to this petition, wherein at Sr. No.2, name of the owner of Survey No. 1934/4 admeasuring 9105 sq.mtrs. is shown as "Anand Municipality". Final Plot No. given is 270 and area is reduced to 8017 sq.mtrs. In remarks column, it is specifically mentioned that "the same is to be used only for the school Page 4 of 39 HC-NIC Page 4 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT purpose. The owners were allowed to remove fencing and gate at their cost. The use of the plot is wholly beneficial to the scheme area. No incremental contribution was charged." The copy is a xerox copy of true copy signed by the Senior Assistant. In view of the Town Planning Scheme, the entire piece of land was reserved for the school purpose and in the name of Anand Municipality.

7. As the price of land was increasing in the area, it is said that the original occupants submitted a copy of the order made by the Prant Officer on 31/01/58 along with an application dated 12/09/1990 before the Talati. In Form No.6, the substance of the order made by the Prant Officer in the year 1958, has been indicated and the same is signed by the Talati. In the last column of remarks, it is noted : "Produce original order Sd.27/10." It is further noted : "In view of the order made by the Prant Officer `Sanctioned dated 13/12/1990' Sd/ City Deputy Mamlatdar, Anand." The copy of the said entry of Form No.6 is placed on record at Annexure D. 7.1 It appears that thereafter on 29/11/1990, before entry was sanctioned by the Prant Officer, another application was submitted. In Form No.6, it is mentioned that the names of Bhathibhai Surabhai, Mangalbhai Surabhai, Mohanbhai Jenabhai, Hathibhai Jenabhai and Lallubhai Jenabhai have been entered as the occupiers but they have expired. A `pedigree' was given with an application requesting that names of Jivaben widow of Budhabhai, Vinubhai Budhabhai, Manibhai Hathibhai, Respondents No.40 to 42, be entered. This entry has been sanctioned on 11/1 by City Deputy Mamlatdar. (Obviously on 11/01/1991, as the application was given on 29/11/1990 and the copy was made from original on 02/02/1991). The said Form No.6 is placed at Annexure E. 7.2 If the persons were not alive, how the application was made on 12/09/1990 and was granted on 13/12/1990 as reflected in Form No.6 at Annexure D ? It is required to be noted that soon thereafter, on 02/02/1991, entry was made by the Talati on an application along with

(i) a true copy of a Will purported to have been executed by one Gajraben, widow of Mohanbhai Jenabhai bequeathing her 1/3 (onethird) share, and (ii) an affidavit indicating that by an oversight the Will, purported to have been executed on 02/01/1990 by motherinlaw of Jivaben, widow of Budhabhai, bequeathing her property to Shashikant Jethabhai, Respondent No.43, could not be produced. In Form No.6, it is noted as "Patel Shashikant Jethabhai rights acquired under the Will."

7.3 On 29/01/1990 names of (1) Jivaben, widow of Budhabhai; (2) Vinodbhai Budhabhai; and (3) Manibhai Bhathibhai came to be entered Page 5 of 39 HC-NIC Page 5 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT without any documentary evidence. If the order made by the Prant Officer in 1958 (AnnexureG) is perused, it is clear that the grant was in favour of Bhaijibhai Nanabhai and Bhathibhai Surabhai, and not in favour of Lallubhai Jenabhai or Mangalbhai Surabhai. The entries made by the Talati without relevant documents would not confer any title. No Probate or Letter of Administration was produced. In one case, even Will has not been produced. Again entries made in revenue record for fiscal purpose would not confer any title. That aspect has been lost sight of. Whether the entries made in land record about vesting of land in Municipality can be altered or not ? After the Town Planning Scheme became final, had the Talati any right/authority to make entry contrary to the entries which became final in view of the provision of law, is the real question.

7.4 After this entry was made on 08/04/1993, the City Deputy Mamlatdar, Anand approved the entry. On 07/05/1991, in view of the application, entry has been made in the village Form No.6, the copy of which is annexed at Annexure I. 7.5 Reading the same, it appears that Manibhai Hathibhai, Jivaben, widow of Budhabhai Mohanbhai, and Vinubhai Budhabhai Gohel executed a document in favour of Shashikant Jethabhai Patel for Final Plot No. 270 of Town Planning Scheme No.4. (Admeasuring 5344.66 sq.mtrs. being 2/3 {twothird} of 8017 sq.mtrs.). It is further mentioned that on 30/01/1991, by a Registered Sale Deed on payment of Rs.1,45,000/, a document was executed before the SubRegistrar. The City Deputy Mamlatdar on 26/6 approved the entry.

8. It seems that thereafter, with a view to grab the land, AADA was moved. A copy of the resolution signed by the Chairman of the AADA is placed on record at Annexure II, by one Bhikhabhai Dahyabhai Patel, respondent No.15. He has filed an affidavit on behalf of respondent Nos. 8 to 14, respondent Nos. 16 to 39 and for himself. We are not referring the copy of newspaper "Western Times" which is at Annexure I. Annexure II is a relevant document and, therefore, relevant part is discussed here : "Unanimously, Resolution No. 161 was passed by respondent no.1 on 12/06/1991 and was forwarded to the President of Municipality."

8.1 Reading that resolution, it appears that Senior Assistant submitted a report. Jivaben, widow of Budhabhai, though she ceased to be the owner of the property on execution of Registered Sale Deed on 31/01/1991, on 15/05/1991 submitted an application. She requested in that application Page 6 of 39 HC-NIC Page 6 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT to put her in possession of land being F.P.No. 270 on the same position as it was. It was further mentioned that Revenue Survey No. 1934/4 admeasuring about 2 Acre & 10 Guntha was covered by Town Planning Scheme No.4 and the original Plot No. 249, admeasuring about 9105 sq.mtrs. was given Final Plot No. 270, admeasuring about 8017 sq.mtrs. It was stated that the said land is in the name of Anand Nagar Palika and while finalising the Town Planning Scheme, the Town Planning Officer, considering the land to be a waste land, put it to the use of Nagarpalika for the use of the school. This statement is contrary to the record. It is a false statement as the land bearing Survey No. 1934/4 was granted to the Anand Municipality in 1964 (vide AnnexureH). It is false to state that the Town Planning Officer, considering the land to be a waste land put it to the use of Nagarpalika. It was further stated that at the relevant time in Form No. 7/12, in the second line, the name of Hathibhai Jenabhai was shown. The Town Planning Officer, either by oversight or for any other reason, did not consider the same and no further proceedings were conducted. The applicant, Jivaben, has produced documentary evidence to show that the land, which was shown as the waste land, was originally in their names. By the application, she requested to hand over the possession of the plot. The resolution further refers that in the Town Planning Scheme No.4, Final Plot No.270 is in the name of Anand Nagar Palika and school building is constructed thereon. In view of this situation, there was discussion amongst the Town Planning Officer, Shri Vinodbhai J. Bhatt, the President and Chairman. The applicant stated that the land used for the school be kept by Anand Municipality without any compensation and the remaining area admeasuring about 6060 sq.mtrs. be handed over to the applicant without any betterment charges. It is further mentioned in the resolution that in view of the precedent, there is no legal objection, therefore, as indicated in the map, 1957 sq.mtrs. of land of Final Plot No. 270 on which the school building is erected be retained by executing a document without making any payment and the remaining land admeasuring about 6060 sq.mtrs. be handed over to the applicant without betterment charges. The said resolution was forwarded to the President. On 14/06/1991, AADA, through its Senior Assistant, addressed a letter conveying the aforesaid resolution. The copy of the said letter is at AnnexureJ. It seems that after this, under the provisions contained in the Development Act, the President of AADA, on 27/11/1991, issued development permission bearing No. 482 in favour of Patel Shashikant Jethabhai, a copy of which is placed on record at AnnexureIII.

9. It appears that thereafter, the Collector was moved who made an order on 06/07/1992, the copy of which is produced at AnnexureF. The Collector has mentioned in the order that 1/3 (onethird) land of Survey No. 1934/4 (T.P.S. No.4, F.P.No.270) is in the name of Shashikant Jethabhai while 2/3 (twothird) of the plot is in the name of Manibhai Hathibhai. The entire piece of land is new tenure land. 2/3 (twothird) Page 7 of 39 HC-NIC Page 7 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT part of the land i.e. 6060 sq.mtrs. is in the name of occupier Manibhai Hathibhai. The Power of Attorney Holder, Navnitbhai, submitted an application on 24/07/1992 for conversion of land from agricultural land to non agricultural land. Order further reveals that the Mamlatdar, Anand, after making an enquiry through Deputy Collector, Anand, made a proposal. The order further reveals that in the year 1958, an order of grant was made for which entry was made on 12/08/1990. Before that application, dated 24/07/1992, the socalled transfer in favour of Shashikant Patel took place on 30/01/1991. The said entry with regard to this transfer was made on 07/05/1991. The matter was taken in the Revision and that entry was quashed by an order dated 07/04/1992 directing that the record should be brought in the original position, i.e., entry should be in the name of joint occupants. The Collector has observed in his order that the applicants are in possession since more than 20 years. The Collector was aware that there was a school building and the entire piece of land is in the name of Anand Municipality since long. The Collector was also aware that as per the record of the Town Planning Scheme, the entire piece of land is in the name of Anand Nagar Palika. From the order, it appears that while passing the order, he was aware that AADA by resolution no.161 made an order for return of land to the applicants. It is further observed in the order that near the land, there are residential houses and it was not permissible to use the land for agriculture. The applicant before the Collector in the application stated that for sale in favour of Bhikhabhai Dahyabhai, there was an oral understanding between them. The applicant stated that it is a new tenure land and he is willing to make payment and he will abide by all the conditions. The applicant stated before the Collector that after the sale of land, the applicant will have no land and from the proceeds of sale, he shall carry on business. It is also mentioned that as per Panchnama, the value of land would be Rs.175/ per sq.mtr. The Deputy Town Planner, Nadiad, has fixed Rs.250/ sq.mtr. as price of the said land and considering this, value of the land as per the Collector's order was Rs.15,15,000/ and considering 70% premium, Rs.10,60,500/ was required to be paid which the applicant paid on 02/07/1992. In view of this, the Collector permitted sale of land admeasuring 6060 sq.mtrs. out of Final Plot No. 270 in favour of Bhikhabhai Dahyabhai for construction of residential houses. The order is with other conditions, such as; (i) within a period of six months, under Section 45 of the Land Revenue Code, permission will have to be obtained from the Competent Authority; (ii) if on sale, the price is realised more than stated then, difference of the amount will have to be deposited in the Government Treasury; (iii) the land shall be utilized for the purpose of residential houses and within a period of one year; nonagricultural operation will commence and will have to be completed within a period of three years (i.e. construction will commence within a period of one year and will have to be completed within a period of three years). In case of breach of conditions, permission shall stand cancelled automatically. The contesting respondents namely;

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HC-NIC Page 8 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT the purchasers of the plots, have also placed on record a copy of the permission referred along with the conditions at AnnexureV. The contesting respondents have also produced on record AnnexureVII, a copy of an entry from the Register maintained for entries with regard to the Registered document. It shows that Manibhai Hathibhai Gohel, Jivaben Budhabhai Gohel, Vinubhai Budhabhai Gohel, Shashikant Jethabhai Patel, through their Power of Attorney Holder, Navnitbhai Patel, executed a document in favour of Bhikhabhai Dahyabhai on 14/07/1992. The Sub Registrar, Anand, has certified that entry on 15/07/1992. Permission letter was issued by the Collector on 14/07/1992 for the purpose of development of land. On 28/07/1992, the Power of Attorney Holder, Navnitbhai Harmanbhai Patel was granted permission of revised development plan.

6 The Division Bench of this Court disposed of the public interest litigation issuing the following directions:

"46. The question is what relief should be granted to the petitioners and how the innocent purchasers should be protected.

47. The innocent purchasers relied on the documents namely; (1) order made by AADA vide Annexure `II'; (2) order made by the Collector vide Annexure `F'; (3) development permission granted by AADA vide Annexure `III'; and (4) redevelopment permission granted vide Annexure `VI'. If these authorities would have not made aforesaid orders, the innocent purchasers would not have purchased the property.

48. It is clear from the record that the Collector purporting to exercise power under the Land Revenue Code for converting the parcel of land to nonagricultural land, had directed to pay a sum of Rs.10,60,500/ by way of premium, and as found in Annexure `F', the amount was received by the Collector. This amount has been collected for disposal of the land which belonged to Anand Nagarpalika and, therefore, neither the Collector nor the AADA could have collected this amount. Therefore, this amount must be returned to the persons who are likely to suffer. The contesting respondents have not placed on record as to what amount they have paid while executing the document for purchase of the land. Whatever amount they have spent must be paid to them, as, the order passed by the Collector (Annexure `F') and the order passed by the AADA, (Annexure `II') are required to be quashed and set aside.

49. Under the circumstances and in view of what is stated hereinabove, this petition is allowed with costs as indicated hereinbelow. The order Page 9 of 39 HC-NIC Page 9 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT made by the Collector vide Annexure `F', the order made by the AADA vide Anneuxre `II', the Development Permission granted by the AADA vide Annexure `III' and the Redevelopment Permission granted vide Annexure `VI' are quashed and set aside.

50. The Chief Secretary shall hold an inquiry either himself personally or shall entrust the inquiry to a Senior Officer who is concerned with the Department and looking after urban development. After making the inquiry and after giving a reasonable opportunity of being heard, the said Officer shall decide the responsibility of the officer and others on the basis of material placed on record before this Court. We have indicated in our order that neither the Collector nor the Chairman, AADA nor the Anand Municipality nor its Town Planning Officer, Shri Bhatt whose name is reflected in the order Annexure `II' nor the Mamlatdar, Anand City nor the Deputy Collector, Anand were entitled to act in such a way so as to play mischief with the provisions made in the Development Act. The Officer concerned shall make a detailed inquiry to find out the role played by Shashikant Jethabhai Patel (Respondent No.43), Manibhai Hathibhai (Respondent No.42), Navnitbhai Harmanbhai as well as Jivaben Budhabhai (Respondent No.40), Vinubhai (Respondent No.41)and if they are found to have acted in collusion, the State shall take appropriate action against these persons. All persons connected and required in the inquiry proceedings shall extend full cooperation to the Officer making the inquiry.

51. It is directed that the inquiry shall be completed within a period of six months and report of the same shall be placed before this Court for perusal. In case of any difficulty in proceeding with the inquiry, the Officer entrusted with the inquiry will be at liberty to move this Court. Registry is directed to notify this matter on 22/10/2001 for production of the inquiry report.

52. The Collector shall forthwith on receipt of writ of this order send notices to the respondent Nos. 8 to 39 to produce before him documents to show the amount paid by each of them.

53. The amount which has been collected by the Collector for disposal of the land which belonged to the Nagarpalika is ordered to be refunded to the contesting respondent Nos. 8 to 39 by the State Government within a period of eight weeks from today with interest at the rate of 12% per annum. The amount of difference of price with interest shall be paid after recording a finding by the Chief Secretary or the Officer who is entrusted the inquiry and after the Court passes an order on the basis of the report Page 10 of 39 HC-NIC Page 10 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT

54. The Chief Officer, Anand Municipality, shall pay the costs of Rs.20,000/. The Chairman, AADA, shall also pay the costs of Rs.20,000/which shall be recovered from the erring Chairman who was instrumental in making the impugned resolution and responsible for granting development permission. The sum of Rs.20,000/shall also be paid by way of costs by the Collector and the said amount shall be recovered from the erring Collector who made the order, AnnexureF. Out of these amounts, a sum of Rs.20000/ shall be paid to the petitioners by way of costs and the remaining amount shall be remitted to the State Exchequer. So far as the contesting respondent Nos. 8 to 39 are concerned, they are also held entitled to costs of these proceedings. The State is directed to pay the amount of costs within a period of eight weeks to each contesting respondent in the sum of Rs.2000/. It will be open for the State Government to recover the amount of costs which is ordered to be paid to the contesting respondents from the erring officers. Rule is made absolute accordingly."

7 It appears that pursuant to the directions issued by this Court, the Vigilance Commissioner, Gujarat Vigilance Commission, Gandhinagar, undertook a detailed inquiry. The inquiry revealed involvement of few persons including the petitioner in the grabbing of the land in question owned by the Anand Nagarpalika.

8 The respondent No.6 herein preferred a private complaint in the Court of the learned Judicial Magistrate First Class, Anand in this regard. It was registered as the Criminal Inquiry Case No.79 of 2002 as the learned Judicial Magistrate First Class thought fit to pass an order of police investigation under Section 156(3) of the Code of Criminal Procedure, 1973. The inquiry culminated in registration of the M. Case No.12 of 2002 with the Anand Town Police Station for the offence punishable under Sections 409, 420, 426, 464, 471 read with 114 of the Indian Penal Code.

9 At the end of the investigation, the chargesheet was filed which culminated in the Criminal Case No.1894 of 2006. The present Page 11 of 39 HC-NIC Page 11 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT petitioner was arraigned as an accused in his capacity as the builder and purchaser of the land in question. Thereafter, the supplementary chargesheets were filed which culminated in the Criminal Cases Nos.1577 of 2006, 1894 of 2006 and 1854 of 2007 respectively.

10 All the three cases were tried together by the learned Chief Judicial Magistrate, Anand, and by a common judgment and order dated 30th April, 2008 acquitted all the accused persons. It appears that the State of Gujarat thought fit not to prefer any appeal against the judgment and order of acquittal passed by the trial Court.

11 The Presiding Officer, who passed the judgment and order of acquittal, was one Shri R.M. Desai. The High Court, on its administrative side, passed an order to look into all the judgments (approximately 150 in number) delivered by Shri Desai as his functioning was not found to be satisfactory by the High Court, on its administrative side.

12 It appears that the learned Sessions Judge, Anand, in exercise of the revisional powers under Sections 401 with 397 of the Cr.P..C., thought fit to take suo motu cognizance of the judgment and order dated 30th April, 2008 passed by the Chief Judicial Magistrate, Anand in the above referred criminal cases in revision.

13 The suo motu cognizance, in exercise of the revisional powers, culminated in suo motu Notice No.447 of 2009.

14 The petitioner herein appeared before the learned Sessions Judge pursuant to the notice received by him and tendered his reply Exhibit:27.

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HC-NIC Page 12 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT 15 Ultimately, the learned Sessions Judge, after taking notice of few infirmities in the judgment, allowed the Revision Application and ordered retrial of all the cases referred to above.

16 Being dissatisfied, the petitioner - original accused has come up with this application invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

17 On 12th August, 2010, this petition was ordered to be admitted by issue of rule. The operation of the impugned order was ordered to be stayed till the final disposal of this petition.

18 Mr. H.L. Patel, the learned advocate appearing for the petitioner submitted that the learned Sessions Judge committed a serious error in exercising suo motu powers for the purpose of ordering the retrial. He submitted that after a full fledged trial and having regard to the evidence on record, the trial Court thought fit to acquit all the accused persons which included the petitioner herein. Mr. Patel submitted that the Division Bench of this Court, while disposing of the public interest litigation, had never directed to initiate any criminal prosecution, and therefore, the findings recorded by the Revisional Court that the trial Court failed to consider the observations made by this Court are not correct. He submitted that the learned Sessions Judge, in exercise of her revisional powers under Sections 397 read with 401 of the Cr. P.C., would not be justified in interfering with the findings of acquittal merely on reappreciation of the evidence. He submitted that unless the view of the trial Court is illegal or perverse, the Revisional Court cannot interfere with such view merely it prefers a different view.

19 Mr. Patel submitted that the impugned order warrants Page 13 of 39 HC-NIC Page 13 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT interference and the same deserves to be quashed.

20 In support of his submissions, Mr. Patel placed reliance on the following decisions:

(1) Satyajit Banerjee and others vs. State of West Bengal and others [(2005) 1 GLH 782 (SC)];

(2) Akalu Ahir vs. Ramdeo Ram [(1973) 2 SCC 583];

(3) Bansi Lal and others vs. Laxman Singh [(1986) 3 SCC 444];

(4) Bindeshwari Prasad Singh @ B.P. Singh and others vs. State of Bihar and another [(2002) 6 SCC 650];

(5) Suryakant Dadasaheb Bitale vs. Dilip Bajrang Kale [AIR 2014 SC 1346].

21 On the other hand, this application has been vehemently opposed by Mr. I.H. Syed, the learned counsel appearing for the respondent No.6 and Shri K.L. Pandya, the learned Additional Public Prosecutor appearing for the respondent - State of Gujarat. Mr. Syed submitted that it is his client i.e. the respondent No.6, who had brought to the notice of this Court by way of a public interest litigation a very serious scandal of the land grabbing at the instance of a builder. He submitted that the Revenue Officers were also found to be involved in the said scandal of land grabbing. He further pointed out that this Court, in the public interest litigation, came down very heavily on one and all, and issued appropriate directions to set right the illegality committed by the persons concerned.

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HC-NIC Page 14 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT 22 Mr. Syed submitted that no error, not to speak of any error of law could be said to have been committed by the learned Sessions Judge in ordering retrial in exercise of its revisional powers under Sections 397 read with 401 of the Cr. P.C. He submitted that various infirmities were noticed by the learned Sessions Judge, and at the end of a detailed consideration, the learned Sessions Judge thought fit to order a retrial in the interest of justice.

23 Mr. Syed submitted that no interference is warranted in the facts of the case.

24 In support of his submission, Mr. Syed placed reliance on the following decision:

(1) Zahira Habibulla H. Sheikh and another vs. State of Gujarat and others [(2004) 4 SCC 158]

25 Mr. Syed also invited my attention to the following averments made on oath by way of an affidavitinreply filed by the respondent No.6:

"6. I say and submit that the Ld. Chief Judicial Magistrate, Anand by the common judgment and order dated 30.04.2008 was pleased to pass the order of acquittal in favour of the petitioner and other accused persons. I say and submit that this judgment was not challenged by the State Government. I say and submit th the Hon'ble High Court of Gujarat had passed the order on the administrative side, wherein, all the judgments (Approx, more than 150) delivered by Shir R.M. Desai, the Ld. Chief Judicial Magistrate, Anand were ordered to be scrutinized and the Ld. Sessions Judge, Anand had examined the record of Criminal Cases as per the directions issued by this Hon'ble Court. I say and submit that the Ld. Sessions Judge, Anand had decided to take the matter in Suo Motu.

7. I say and submit that the Ld. Sessions Judge, Anand had issued Suo Motu Notice No.447/2009 against Navnitbhai Harmanbhai Patel and Page 15 of 39 HC-NIC Page 15 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT others. I say and subit that the petitioner had appeared through the advocate and submitted the detailed reply at Exh. 27 and the Ld. Sessions Judge, Anand was pleased to observe that the prosecution had examined 16 witnesses out of P.W. 3 to P.W. 9 were examined on the same day on 06.02.2007. I say and submit that the Ld. Sessions Judge was also pleased to observe that 7 witnesses were examined on the same day on 06.02.2007 and within a short period of time, the judgment was pronounced. The Ld. Sessions Judge was also pleased to observe that the Ld. Assistant Public Prosecutor had not argued anything with regard to the factum of appointment of Vigilance Commissioner, the documents produced before the Vigilance Commissioner. The Ld. Sessions Judge was also pleased to observe that the Ld. APP failed to bring to the notice to the Ld. Magistrate with regard to the documentary evidence produced at Exh. 85. There is no decision as to why the documents at Exh. 85 are not taken into consideration in evidence while passing the impugned order. The Ld. Sessions Judge was also pleased to observe that the ocular evidence of the witnesses was assessed in brief but the serious of document below Exh. 85 were not considered while passing the impugned order of acquittal though all these documents were available before the trial court. The Ld. Sessions Judge also pleased to observe that the Ld. Chief Judicial Magistrate failed to appreciate the procedure as prescribed under the statute.

8. I say and submit that the Ld. Sessions Judge was also pleased to observe that the Ld. Chief Judicial Magistrate had not assigned any reason as to why the documents produced at Exh. 85 were not taken into consideration or as to why these documents were not admissible in evidence. The Ld. Sessions Judge was constrained to observe that the Vigilance Commissioner was directed by the Hon'ble Division Bench of the Hon'ble High Court of Gujarat to investigate the scam committed by the accused persons and in pursuant to the order passed by the Hon'ble Division Bench of the Hon'ble Court, wherein, all these documents were produced and were required to be taken into consideration but nothing is done by the Ld. Chief Judicial Magistrate, Anand.

9. I say and submit that the Ld. Sessions Judge was also pleased to observe that the order passed by the Hon'ble Division Bench of this Hon'ble High Court of Gujarat in Special Civil Application No.2210/1993 was very much there on record but the same is not taken into consideration while passing the order of acquittal. The Ld. Sessions Judge was pleased to observe that the Ld. Chief Judicial Magistrate, Anand did not bother to secure the presence of witness from the Vigilance Department, Gujarat State to produce the detailed report of investigation. The Ld. Sessions Judge was constrained to observe that the Court was not and cannot show helplessness when there is failure in performance of duty by the prosecution. The entire purpose of administration of justice is frustrated. The Ld. Sessions Judge was also constrained to observe that it is the duty of the Court to take the case to the logical end but there is total failure.

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10. I say and submit that Ld. Sessions Judge was also pleased to observe that the Ld. Public Prosecutor failed to discharge his obligation by not submitting the statutory appeal before the competent court. No step appears to have been taken by the Ld. APP to file the acquittal appeal. The Ld. Sessions Judge was constrained to observe that there is total failure in examining the witnesses and brining documentary evidence on record of Criminal Case.

11. I say and submit that the Ld. Sessions Judge was well within his jurisdiction in passing the impugned order of remanding the matter for fresh consideration after giving sufficient opportunity to the both parties. That the Ld. Sessions Judge has passed the impugned order while exercising the powers u/s. 397 of Cr.P.C. I crave leave to reproduce Section 397 of Cr.P.C. which reads under:

"SECTION 397. Calling for records to exercise powers of revision (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation:All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 398.

(2) The powers of revision conferred by subsection (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

Thus, it is clear that the order passed by the Ld. Sessions Judge, Anand is just, proper and legal.

12. I say and submit that thought the report of Vigilance Commissioner Page 17 of 39 HC-NIC Page 17 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT was available on record wherein certain persons are held responsible but they are not joined as accused persons, more particularly the accused persons mentioned in report PartIV Pg. 72 to 127. These persons are held responsible in the inquiry held by the Vigilance Commissioner and are ordered to be prosecuted but the reason best known, they are not joined as accused persons.

13. I say and submit that the Ld. Sessions Judge was constrained to observe that non consideration of report of Vigilance Commission, Gujarat based upon the direction issued by the Hon'ble High Court of Gujarat would amount to disobedience of judicial verdict declared by the Hon'ble High Court of Gujarat. Moreover, the trial is conducted hastily and concluded within 3 to 4 months also does not appear to be properly performed satisfactorily.

14. I say and submit that the Ld. Sessions Judge was constrained to observe that the findings given by the Ld. Chief Judicial Magistrate with regard to the documents are not proved; with regard to the incident of civil in nature is totally erroneous as no prescribed procedure for providing the document is carried out by the prosecution. No important witnesses are examined. There is no discussion with regard to the report made by the Vigilance Department. It appears that the Ld. Chief Judicial Magistrate has not adopted any process to examine important witness or to bring the documentary evidence on record. The Ld. Sessions Judge constrained to observe that the impugned order of acquittal is erroneous, illegal and against the provision of law and therefore, the interference was badly required.

15. I say and submit that the Ld. Sessions Judge had come to conclusion that the impugned order of acquittal was illegal, erroneous and against the provision of law. The impugned order was passed with following statutory duty of examining material witness and without bringing documentary evidence which has resulted into miscarriage of justice. Thus, the impugned order was taken into suo motu revision and Ld. Sessions Judge, Anand has passed detailed, well reasoned and speaking order, wherein, the order of Ld. Chief Judicial Magistrate had been quashed and set aside and the Ld. Chief Judicial Magistrate was directed to decide the case in accordance with law after following statutory provision on the priority basis.

16. I say and submit that Navnitbhai Harmanbhai Patel was immediately approached this Hon'ble Court by way of filing Special Criminal Application No.831 of 2010. This Hon'ble Court has admitted matter and interim relief in terms of para 9 (b) is granted and accordingly the impugned order passed by the Ld. Sessions Judge, Anand in Criminal Revision Application (Suo Motu) No.447 of 2009 has been stayed.

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17. I say and submit that the original complainant is not joined as party respondent in Special Criminal Application No.831 of 2010. It appears that the affidavits are also not filed b y the State or any other persons. It is pertinent to note that other respondent nos.2 to 5 are the co accused persons and therefore, they are not affected in anyway but they are benefited from the order. Moreover, the orig. complainant Birenbhai Nalinbhai Patel is not affected in any manner on account of stay granted by this Hon'ble Court. In these facts and circumstances, the impugned order is required to be recalled and the interim relief is required to be vacated forthwith.

18. I say and submit that the order passed by the Ld. Chief Judicial Magistrate, Anand is exfacie illegal, erroneous and against the provisions of law. The Ld. Sessions Judge, Anand has passed the impugned order Annexued hereto and marked AnnexureR2 of remanding the matter after biparte hearing and after considering the objections by orig. petitioner - accused.

19. I say and submit that the allegations leveled in the FIR are with regard to the incident which has happened in the year 1991. The FIR is with regard to the incident which is filed in pursuant to the direction issued by the Hon'ble Divison Bench of Hon'ble High Court wherein, the Vigilance Commission has already carried out detailed inquiry and submitted its report. Thus, the allegations leveled against the accused persons are based upon the direction issued by the Hon'ble Division Bench of this Hon'ble Court and the inquiry carried out by the Vigilance Commission, Gujarat State. The Ld. Chief Judicial Magistrate has passed the order of acquittal in hasty manner and without following statutory procedure. That there is total miscarriage of justice which is rectified by the Ld. Sessions Judge by passing the order of de novo trial. That the accused persons are moving freely even after passage of time of 22 years. The accused persons are moving freely even after detailed inquiry made by the Vigilance Department, Gujarat State. In view of this, the interim order is required to be vacated and the trial is required to commence at the earliest.

20. I say and submit that there were three criminal cases being Criminal Case Nos.1577/2006, 1894/2006 and 1854/2007. There were in all four accused persons in Criminal Case No.1577/2006. There were in all six accused persons in Criminal Case No.1894/2006 and there was one accused person in Criminal Case No.1854/2007. It is pertinent to note that the petitioner is the only accused person has challenged the order of the Ld. Sessions Judge, Anand but the entire proceedings are stayed in favour of other accused persons who are not the petitioners before the Hon'ble High Court of Gujarat. Thus, the situation has arisen wherein, the none of the applicants are benefited out of the order passed by this Hon'ble Court. The Ld. Chief Judicial Magistrate, Anand does not proceed further Page 19 of 39 HC-NIC Page 19 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT with regard to other accused persons or with regard to other two criminal cases, wherein, no stay is granted. In view of this, the impugned order is required to be clarified to this extent and the Ld. Chief Judicial Magistrate, Anand is required to be directed to proceed further in this matter in accordance with law at the earlier.

21. I say and submit that the orig. complainant is not joined as party respondent and exparte order is passed. I say and submit that there is no occasion for the complainant to represent his case. I say and submit that the complainant is technically a formal party who has registered the FIR on the basis of report of Vigilance Commission. I say and submit that I am the founder of the entire proceedings. I am conversant with each and every facts of the matter. I say and submit that the orig. accused persons are still moving freely though the entire scam is committed in the year 1991. I say and submit that entire scam is thoroughly investigated by the Vigilance Commission, Gujarat State as per direction issued by this Hon'ble Court in Special Civil Application No.2210/1993. I have filed this detailed affidavitinreply, pointing out each and every development that has taken place in this scam. I say and submit that the interim relief is required to be vacated, the trial be proceeded further in accordance with law at the earliest of justice."

26 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 learned Sessions Judge committed any error in passing the impugned order.

27 Before adverting to the rival submissions on either sides, let me first look into the position of law so far as the issue in hand is concerned.

28 In Satyajit Banerjee (supra), the Supreme Court, while explaining the scope of a Revisioinal Court directing a retrial, observed as under:

"17. The State has chosen not to prefer any appeal against acquittal. In the present appeal by the complainant it has filed a counteraffidavit and tried to support the order of remand passed by the High Court.

18. Without going into the correctness of all the observations made by the High Court in the impugned judgment, we find it necessary to clarify that the High Court ought not to have directed the trial court to hold a de Page 20 of 39 HC-NIC Page 20 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT novo trial and take decision on the basis of so called 'suggested formula.' The High Court in its concluding part of the judgment does state that any observation in its judgment should not influence the mind of the trial court but, at the same time, the High Court directs the trial court to take 'a fresh decision from stage one' and on the basis of the 'suggested formula.' Learned counsel for the accused is justified in his grievance and apprehension that the aforesaid observations and directions are likely to be mistaken by the trial court as if there is a mandate to it to record the verdict of conviction against the accused regardless of the worth and weight of the evidence before it.

19. Since strong reliance has been placed on the Best Bakery Case (Gujarat Riots Case supra) it is necessary to record a note of caution. That was an extraordinary case in which this Court was convinced that the entire prosecution machinery was trying to shield the accused i.e. the rioters. It was also found that the entire trial was a farce. The witnesses were terrified and intimidated to keep them away from the court. It is in the aforesaid extraordinary circumstances that the court not only directed a de novo trial of the whole case but made further directions for appointment of the new prosecutor with due consultation of the victims. Retrial was directed to be held out of the State of Gujarat.

20. The law laid down in the 'Best Bakery Case' in the aforesaid extraordinary circumstances, cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. In Best Bakery case, the first trial was found to be a farce and is described as 'mock trial.' Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this Court in the Best Bakery Case (supra).

21. So far as the position of law is concerned we are very clear that even if a retrial is directed in exercise of revisional powers by the HIgh Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial judge has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial.

22. With the above clarification, we decline to interfere in the order of remand. To put the matter beyond any shadow of doubt we further clarify and reiterate that the trial judge, after retrial, shall take a decision on the basis of the entire evidence on record and strictly in accordance with law, without in any manner, being influenced or inhibited by anything said on the evidence in the judgment of the High Court or this Court.

29 In Akalu Ahir (supra), the Supreme Court, by way of illustration, indicated the categories of cases, which would justify the Court in Page 21 of 39 HC-NIC Page 21 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT interfering with a finding of acquittal in revision. The Supreme Court made the following observations:

"8...It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court in the course of trial, that the High Court is empowered to set aside the order of acquittal and direct the retrial of the acquitted accused persons. From the very nature of this power, it should be exercised in exceptional cases and with great care and caution. Trials are not to be lightly set aside when such orders expose the accused persons to a fresh trial with all its consequential harassment. This matter is not res integra and has indeed been dealt with by this Court at least in the four cases noticed by the High Court. In K. C. Reddy, (1963) 3 SCR 412 = (AIR 1962 SC 1788) (supra), this Court examined two of its earlier decisions in D. Stephens, 1951 SCR 284 = (AIR 1951 SC 196) (supra) and Logendranath Jha, 1951 SCR 676 = (AIR 1951 SC 316) (supra) and after quoting certain passages from the decisions observed as follows: "These two cases clearly lay down the limits of the High Court's jurisdiction to interfere with an order of acquittal in revision; in particular, Logendranath Jha's case, stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of Section 439 (4) and that the High Court cannot do this even indirectly by ordering retrial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial Court's appreciation of evidence but formally complied with subs. (4) by directing only a retrial of the appellants without convicting them, and warned that the Court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court. In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general."

This Court then proceeded to observe that the High Court is certainly entitled in revision to set aside the order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but it was emphasised that this jurisdiction should be exercised only in exceptional cases when "there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice." In face of prohibition in Section 439 (4), Cr. P. C., for the High Court to convert a finding of acquittal into one of Page 22 of 39 HC-NIC Page 22 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT conviction, it makes all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial. No doubt, in the opinion of this Court, no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court's power of ordering retrial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision :

(i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused;

(ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce;

(iii) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible;

(iv) Where the material evidence has been overlooked only (either?) by the trial Court or by the appellate Court; and

(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.

These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal. In Mahendra Pratap Singh, (1968) 2 SCR 287 = (AIR 1968 SC

707) (supra) the position was again reviewed and the rule laid down in the three earlier cases reaffirmed. In that case the reading of the judgment of the High Court made it plain that it had reweighed the evidence form its own point of view and reached in ferences contrary to those of the Sessions Judge on almost every point This Court pointed out that it was not the duty of the High Court to do so while dealing with an acquittal on revision, when the Government had not chosen to file an appeal against it.

"In other words" said this Court, "the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them."

9. In the present case also we feel that the High Court has reweighed the evidence from its own point of view and though at the outset it noticed the correct legal position and expressly acknowledged the limits, within which it was called upon to decide whether or not to interfere with the order of acquittal, in actualpractice, it does not seem to have attended to the rules laid down by this Court in the four decisions noticed by it. As observed in D. Stephen's case, 1951 SCR 284 = (AIR 1951 SC 196) Page 23 of 39 HC-NIC Page 23 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT (supra), the revisional jurisdiction under Sec. 439, Cr P. C. is not to be lightly exercised when invoked by a private party against an order of acquittal against which the Government has. a right of appeal under S.

417. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or mixappreciated the evidence on record. Again, as pointed out in Logendranath Jha's case 1951 SCR 676 = (AIR 1951 SC 316) (supra), when Section 439 (4) specifically excludes the power to "convert a finding of acquittal into one of conviction", the High Court cannot, when dealing with a revision petition by a private party against an order of acquittal, in the absence of any error on a point of law, reappraise the evidence and reverse the findings of fact on which the acquittal was based by resorting to the device of stopping short of finding the accused guilty and passing sentence on him. This would be a subterfuge impermissible in our judicial process.

10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a Court of appeal may well have felt justified in disagreeing with its conclusion,but from this it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself as if it is acting as a Court of appeal and then order a retrial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village Mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court.

11. There is also another aspect of the matter. The High Court has evaluated the evidence on the existing record. On retrial the trial Court will have to consider the evidence led at the retrial and arrive at its conclusion on that record. The expression of opinion on the present evidence with respect to the commission of the alleged offence would not be binding and would, therefore, hardly be relevant. But it may nevertheless leave an unconscious impression on the mind of the Court, holding the fresh trial. This aspect also seems to lend some support to the view that normally retrial should not be ordered unless there is some infirmity rendering the trial defective."

30 In Suryakant Dadasaheb (supra), the Supreme Court, after a review of its earlier decisions, observed in paras 18, 19, 20 and 23 as under:

"18. The scope of revisional jurisdiction was considered by this Court in K. Chinnaswamy v. State of A.P., AIR 1962 SC 1788 and held as follows:

"Where the appeal Court wrongly, ruled out evidence which was admissible, the High Court would be justified in interfering with the order Page 24 of 39 HC-NIC Page 24 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT of acquittal in revision, so that the evidence may be reapprised after taking into account the evidence which was wrongly ruled out as inadmissible. But the High Court should continue itself only to the admissibility of the evidence and should not go further and appraise the evidence also."

19. In Akalu Ahir and others v. Ramdeo Ram, AIR 1973 SC 2145 : (1973) SCC 2 583, this Court held that where the material evidence have been over looked by the Trial Court or Sessions Court, the High Court in revisional jurisdiction can interfere with the finding of acquittal.

20. In the present case the Session Court has not ruled out any evidence which was admissible. Both the dying declarations were considered in proper prospect. The material evidence has not been overlooked by the Sessions Court, as apparent from the discussions made by Sessions Judge and quoted above. In these circumstances, the High Court was not justified in interfering with the order of acquittal in a revision."

"23. In the present case, the view taken by the Sessions Judge is neither unreasonable nor perverse. It is possible reasonable view based on the evidence on record. In the circumstances, the High Court was not justified in setting aside the order of acquittal."

31 In Bindeshwari Prasad Singh (supra), the Supreme Court observed in paras 11, 12, 13, 14 as under:

"11. A mere perusal of the judgment of the High Court would disclose that the High Court reappreciated the evidence on record and came to the conclusion that the learned Sessions Judge was not justified in recording the order of acquittal. The evidence of eye witnesses was consistent and so far as the informant is concerned, no doubt in the First Information Report he had attributed the fatal injury to appellant No.1 but he later changed his version and deposed that the injury was caused by appellant No. 2. The High Court was impressed by the argument that the First Information Report not being a substantive piece of evidence, at best the evidence of the informant was not corroborated by the First Information Report. The High Court further found that the presence of eye witnesses was natural and the mere fact that they were related was no ground to discard their testimony. Rejecting the argument urged on behalf of the appellants that there was no mention in the First Information Report about the presence of the wife and daughter of the informant as eye witnesses who witnessed the occurrence from the balcony, the learned Judge observed that it was not expected that every detail would be mentioned in the First Information Report. On such reasoning, the High Court set aside the order of acquittal and ordered re Page 25 of 39 HC-NIC Page 25 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT trial of the appellants.

12. We have carefully considered the material on record and we are satisfied that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the information under Section 401 of the Code of Criminal Procedure, Subsection (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid subsection, which places a limitation on the powers of the revisional Court, prohibiting it from convert a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of the conviction directly, it could not do so indirectly by the method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial Court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. (See AIR 1951 SC 196 : D. Stephens vs. Nosibolla; AIR 1962 SC 1788: K.C. Reddy vs. State of Andhra Pradesh; (1973) 2 SCC 583 : Akalu Ahir and other vs. Ramdeo Ram: AIR 1975 SC 1854 : Pakalapati Narayana Gajapathi Raju and others vs. Bonapalli Peda Appadu and another and AIR 1968 SC 707 : Mahendra Pratap Singh vs Sarju Singh).

13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.

14. We are, therefore satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial Court. But that by itself is no justification for exercise Page 26 of 39 HC-NIC Page 26 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial Court took the opposite view. This Court was repeatedly observed that in exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellate Court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction. It cannot be lost sight of that when a retrial is ordered, the dice is heavily loaded against the accused, and that itself must caution the Court exercising revisional jurisdiction. We, therefore, find no justification for the impugned order of the High Court ordering retrial of the appellants."

32 In Bansi Lal (supra), the Supreme Court, in para 10, observed as under:

"It is unfortunate that the High Court did not keep in mind and principles laid down in the aforesaid rulings regarding the limits of its revisional powers while dealing with an order of acquittal passed by the subordinate Court. The mere circumstance that a finding of fact recorded by the trial Court may in the opinion of the High Court be wrong, will not justify the setting aside (of) the order of acquittal and directing a retrial of the accused. In the present case the judgment of the learned Additional Sessions Judge did not suffer from any manifest illegality. The dominant justification of the order of acquittal recorded by the trial Court is the view it took of the evidence of the two eyewitnesses. Having carefully gone through the records of the case we are satisfied that it was a possible view and it cannot be characterised as illegal or perverse. It may well be that the learned single Judge of the High Court was not inclined to agree with the said view on the basis of his independent scrutiny and appreciation of the evidence adduced in the case but that would not furnish any justification for interference in revision with the order of acquittal passed by the learned Additional Sessions Judge. Even in an appeal the Appellate Court would not have been justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope. We accordingly hold that the High Court has clearly transgressed the limits of its revisional. jurisdiction under S. 439(4) of (old) Cr. P.C. in setting aside the order of acquittal passed by the Additional Sessions Judge and directing a retrial of Page 27 of 39 HC-NIC Page 27 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT the case."

33 The Supreme Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh [AIR 1962 SC 1788] explained the extent of the jurisdiction of the High Court in the matter of interfering in revision against an order of acquittal as follows:

"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal, but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of S. 439 (4)."

34 The above principles have also been reiterated in Mahendra Pratap Singh v. Sarju Singh, (1968) 2 SCR 287 = (AIR 1968 SC 707) Khetrabasi Samal v. State of Orissa, (1970) 1 SCR 880 = (AIR 1970 SC

272) and Amar Chand Agarwalla v. Shanti Bose, Criminal Appeals Nos.

Page 28 of 39

HC-NIC Page 28 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT 101103 of 1970 D/ 22121972 (reported in AIR 1973 SC 799).

35 In Chaganti Kotaiah and others vs. Gogineni Venkateshwara Rao [AIR 1973 SC 1274], the Supreme Court, after placing reliance on its earlier decision in the case of K. Chinnaswamy Reddy (supra) referred to above, observed in paras 19 and 20 as under:

"19. We are of the opinion that the entire approach made by the High Court in dealing with the Criminal Revision filed against acquittal by the private party is contrary to the principles laid down in the decisions referred to above. Notwithstanding the fact that subsection (4) of Section 439 does not authorise the High Court to convert a finding of acquittal into one of conviction, it has in fact contravened this provision by recording a finding of guilt against the accused and directing the Trial Court to convict them after a retrial. There is no question of lack of jurisdiction in the Trial Court to try the case; nor was any attack made that any evidence has been shut out at the trial. Whether the dying declaration, Ext. P. 15, by Ratnababu can be taken into account regarding the attack on Koteswara Rao, is a matter which the Trial Court was entitled to decide one way or the other. If its view was wrong, the High Court could have gone into that aspect and differed from this opinion of the Sessions Court if the State had filed an appeal against acquittal. Further the mere fact that the learned Trial Judge held that this piece of evidence is not relevant, while considering the attack on Koteswara Rao, does not amount to shutting out of evidence at the trial. In fact that evidence had already come on record. Therefore, in this case there has been no shutting out at the trial of any evidence which the prosecution wanted to adduce or the defence wanted to lead. All available evidence has been let in by both the prosecution and the accused.

20. Nor can it be stated that there has been any glaring defect in the procedure or a manifest error on a point of law and consequently leading to a flagrant miscarriage of justice. As mentioned earlier, subsection (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction by an indirect method of ordering retrial when the High Court itself cannot directly convert a finding of acquittal into a finding of conviction. The High Court, in our opinion, has missed these very important limitations on its power to set aside the finding of acquittal in revision which could be done only in very exceptional circumstances. In the case on hand, the High Court was not justified in considering the evidence in such detail if it was really going to order a retrial. Such a detailed consideration of evidence and an expression of opinion about the guilt of the accused, in our opinion, has really loaded the dice against the Page 29 of 39 HC-NIC Page 29 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT accused when the case goes back for retrial. Much stress has been laid by the High Court that though substantive charges had been framed against the accused read with Section 34 or alternatively with Section 149 I.P.C. the Trial Court has not recorded any finding in this regard. Here again, the High Court's view is erroneous. We have already referred to the finding recorded by the Trial Court that in view of the definite case of the prosecution and the nature of the evidence, none of the accused can be held constructively liable. It is on that ground that the Trial Court has not found the accused constructively guilty."

36 In Zahira Habibulla Sheikh (supra), the Supreme Court, in paras 36, 43 and 55, 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 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 evidencecollecting 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 Page 30 of 39 HC-NIC Page 30 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT 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 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]"

37 A conspectus of the case law referred to above makes the position clear so far as the powers of the Revisional Court to order retrial is concerned. The High Court or Sessions Court, will ordinarily not interfere in revision with an order of acquittal, except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or prevention of grave miscarriage of justice. The Revisional Court, in exercise of its powers under Sections 397 with 401 of the Cr. P.C., will not be justified in interfering with an order of acquittal and order retrial, merely because the trial Court has taken a wrong view of the law or has erred in the appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which the exercise of revisional jurisdiction may be Page 31 of 39 HC-NIC Page 31 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT justified. The Supreme Court, however, has laid down certain parameters of exercise of the revisional jurisdiction by the Sessions Court or High Court under Section 401 of the Cr. P.C. Ordinarily, in the following categories of cases, the Revisional Court would be justified in ordering retrial:

(I) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused;

(II) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce;

(III) Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible;

(IV) Where the material evidence has been overlooked only (either?) by the trial Court or by the appellate Court; and (V) Where the acquittal is based on the compounding of the offence which is invalid under the law.

38 The learned Sessions Judge, while allowing the revision and ordering retrial observed, the free English translation of the same reads as under:

"9. Considering Record and Proceedings of all these Criminal matters and on service of summons on accused, copies of case papers were provided to them accordingly as seen in above discussion, charge was farmed in Criminal Case No.1577/2006 vide Exhibit: 30 and plea of accused persons were recorded from Exhibit:31 to Exhibit:34. For the Criminal Case no.1894/2006, charge is framed vide Exhibit: 39 and thereby vide Exhibit : 40 to Exhibit: 44, please of accused persons were recorded. For the matter of Criminal Case No.1854/2007 charge is framed vide Exhibit:

17 and thereby vide Exhibit: 18 please of accused person was recorded. Entire accused persons denied for committing offence and evidence of complainant party was registered and after recording evidence of complainant party, u/s. 313 of Criminal Procedure Code, further evidence of accused person were registered and thereafter, arguments advanced by A.P.P Shri K.R. Patel and advocates remained present for accused were Page 32 of 39 HC-NIC Page 32 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT being heard and thereafter, disputed order vided Exhibit: 114 was pronounced for original Criminal Case No.1577/2006. Considering particulars of disputed order, the then Chief Judicial Magistrate discussed oral evidence of witness on record in very brief and witness Bipinbhai Parshottambhai Patel is examined at Exhibit: 84 and in their evidence, in Special Civil Application 2210/1993, they preferred Public Interest Litigation before High Court of Gujarat in which Division Bench of Hon'ble Mr. Justice B.C. Patel and Hon'ble Mr. Justice D.A. Mehta had passed order on 23/04/2001 and Hon'ble Gujarat High Court had appointed Vigilance Commissioner and executed investigation for alleged land scandal and Vigilance Commissioner Shri served notice on witness Bipinbhai and asked for written reply and similarly, on 26/07/2002, they were again called by Commissioner Shri and thereby remaining present, this witness Bipinbhai had produced documents vide list at Exhibit: 85 from 85/1 to 85/8 and thereby produced documents and even though, these records were produced for the record even though, considering this disputed order, documents were produced vide mark 85/1 to mark 85/8 and without mentioning such calculative words, there is no discussion were carried out about these documentary evidence in the alleged judgment. Thereafter, as discussed in the above mentioned judgment, witness no.3 to witness no.9 were examined on same date and discussion in brief about evidence were carried out and after discussion of witnesses, there were mentioning of hearing of arguments advanced by A.P.P. Shri K.R. Patel. There is mentioning of arguments advanced by A.P.P. Shri K.R. Patel to punish accused persons on rigorous basis but, when there was appointment executed of Vigilance Commissioner Shri by Division Bench of Gujarat High Court and they had executed detailed investigation about land scandal and thereby produced vital evidence about investigation and which is produced vide Exhibit: 85 and it seems that, A.P.P. Shri did not argue for one word about alleged documents and there is no mentioning of such arguments and they had verbally represented modestly arguments to punish accused as matter is provided. They did not produce any material in which circumstances; how the matter neither proved nor produced any material case showing facts about. In short, in connection with documentary evidence produced about at Exhibit: 85, it did not seem that, A.P.P. Shri drew any attention and whatsoever judicial officer did not analysis the documents in any place in entire judgment. For which grounds, these documentary evidence were not taken into consideration or why necessary legal proceedings were initiated any direct or indirect mentioning for considering evidence at any juncture in the entire judgment. It is fact without dispute that, as seen in above discussion, as per order passed by Division Bench in Special Civil Application No.2210/1993, this entire chapter came in focus and but naturally, in connection with order passed by Hon'ble High Court, Vigilance Commissioner Shri executed investigation and produced documents and materials for the same is produced on record of criminal cases and report of Vigilance Commissioner Shri and those documents before him and it Page 33 of 39 HC-NIC Page 33 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT was pertinent to consider entire analysis and it is also pertinent for taking into consideration of evidence and in connection with documents, it is necessary to justify entire Criminal Case. Documentary evidences were produced vide Exhibit: 85 and except of mentioned that, there is no scrutiny produced about such documents. By assessing oral evidence of witness in brief, charge framed against accused did not prove and after arriving upon such decision, Chief Judicial Magistrate Shri passed order to acquit accused on basis of lack of evidence. In fact, documentary evidence produced at Exhibit: 85 is required to be taken into consideration which was available on record and without considering such vital evidence on record or without assessing such evidence in detail, without assessing it and on basis of established principles of law, it transpires that disputed order was passed without considering and without executing necessary proceedings on such documentary evidence. In such circumstances, it is absolutely submitted that, Chief Judicial Magistrate executed proceedings without executing establishment of settled principle laws and there is no clarity maintained.

10. It is pertinent to note that, there is no discussion or analysis carried out, why documentary evidence produced at Exhibit: 85 are not taken into consideration and not acceptable in evidence and here is no justifiable evidence. In fact as per order passed by Hon'ble Gujarat High Court for investigation executing by Vigilance Commissioner Shir about land scandal and in connection with order passed, during course of investigation, such documentary evidences were produced and very important for taking into consideration and also vital for detailed investigation but, there is no it is pertinent to note that, in alleged criminal case, witness mentioned in charge sheet list column at serial no.7, copy of order passed on 23/04/2011 in Civil Application No.2210/1993 of High Court of Gujarat is produced. There is no analysis of this evidence or there no discussion is mentioned in disputed order and there is no such order is in existence and similarly, by setting aside vital documentary evidence, it seems that, disputed order was passed and definitely, it could be considered as illegal, unlawful and illegitimate. It is pertinent to note that, Vigilance Department produced investigation report after executing investigation and there is no provision of presenting any witness is executed by Hon'ble Court and for its justifiable disposal, Hon'ble Court could not be mute spectator. Result of each matter shall be reached from its origin to the extrusion point of judicial proceedings shall be initiated after keeping established law in center point. For the purpose of merely advancing arguments, A.P.P. Shri had for justifiable disposal, did not provide cooperation and due to certain grounds, A.P. P. Shri was efficiently rendering his duties, he committed mistake from liabilities or they did not serve their responsibilities in accordance with law and due to such mere grounds, Hon'ble Court could not become helpless in any circumstances.

For justifiable disposal of matter, Judicial Officers were conferred with wide power by legal provisions so that interest of justice could not be Page 34 of 39 HC-NIC Page 34 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT murdered and for justifiable disposal of the matter, judicial officer shall not become mute spectator but, it is responsibility of Judicial Officer from legal aspects and responsibility to reach each matter to its end within limitation of settled principles of law. It transpires that, considering judgment and record, A.P.P. Shri K.R. Patel did not render his holly efficient duties properly to reach to the extrusion point for justifiable disposal of the matter as a Government Pleader of complainant party. It is pertinent to note that, when judgment was produced on 30/04/2008 for acquitting accused persons and thereafter, order passed by Hon'ble Gujarat High Court for investigate the record and upto that, Government did not find it suitable to file appeal against such disputable order and even did not try to file any appeal or put any effort which also transpires mistake committed by A.P.P. Shri for rendering legal duties. As seen above from the discussion, for justifiable disposal of criminal case, at every stage, Judicial Officer shall regularly maintain clarity about proceedings. In disputed order, there are neither any proceedings executed for documents mentioned in charge sheet nor proceeding initiated for examination of witness or taken into consideration and naturally, due to lack of such important document and witness, disputed order passed is illicit, illegal and illegitimate.

11. Considering record such facts are specifically transpired that in accordance with order passed by Hon'ble High Court, Vigilance Commissioner appointed by State Government produce his report in connection with land scandal and this such report is produced on Criminal Revision Application and there is no mention in disputed order and not only that as per report of Vigilance Commissioner Shri in para3 and page no.29 to 64 some individuals were considered as responsible and were not joined as accused and not only that, on part4 from page no.72 to page no.127 of Revenue Officer, such persons were not joined as accused. Those accused joined in this criminal case and above all many other persons were held responsible by Vigilance Commissioner even though decision of taking disciplinary action is declared and no such individuals were joined as accused persons. It is pertinent to note that, the main dispute of this matter is when any person is personally causing damages and there is no personal dispute of single double person in which interest of such persons were accommodated in it. In fact of in connection with land scandal these criminal cases were come into existence and thereby charge sheet is framed and it was not necessary to expedite matter by technical procedure in hurry and when Vigilance Commissioner had put their efforts for carry out detailed investigation and produced their report in many volumes and thereby held some of the persons responsible and when there is mentioning of such report and order passed by Hon'ble High Court in column of charge sheet so, it could not be ignored in any circumstances. Without considering such documents and report, disputed order is passed which is result into failure of judicial system and not only that, order of Hon'ble High Court and on basis of such order, appointment of Vigilance Commissioner Shri is Page 35 of 39 HC-NIC Page 35 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT not taken into consideration and same shall be specifically considered as contempt of order passed by Hon'ble Court. When there is detailed investigation carried out by Higher Authority in such serious and matter of public interest and when Hon'ble High Court is required to pay attention and pass order and such criminal case is executed in hurry and proceedings of the matter is accomplished within 34 months which did not pursue healthy proceedings of justice and in such circumstances, disputed order is required to be rescinded.

12. On the other hand, in disputed order, Chief Judicial Magistrate Shri could establish by way witness for committing any offensive deed, counterfeit documents were constructed against accused and by documents exhibited, there is no counterfeit raised and considering entire evidence, matter is of Civil nature which is mentioned in quotation and considering entire discussion, it is not maintainable any time because there is no proceedings carried out to mark exhibit to the documentary evidence not only that, Order passed by Hon'ble High Court and their quotation and examinations were not taken into consideration and on basis of such order, Vigilance Commissioner is appointed and there is no such scrutiny of report produced is executed and for producing evidence and thereby exhibited it and Chief Judicial Magistrate Shri did not execute any proceedings for investigating important / vital witnesses and naturally, it requires to be assumed that, they could not find any documentary evidence on record. In short, considering disputed order is entirely with mistakes, illegal and lakes of settled established principles of law and without maintaining any clarity from legal aspects and in such circumstances, order passed is with discrimination and hence, required to be set aside."

39 A bare perusal of the findings recorded by the Revisional Court reveals that the following circumstances weighed with the learned Sessions Judge in ordering retrial:

               (1)      Seven witnesses were examined in one day. 
               (2)      The   documentary   evidence   at   Exhibit   :   85   was   not 
               considered.
               (3)      The ocular version of the witnesses was not appreciated in 
               its true perspective. 
               (4)      The State should have preferred an acquittal appeal. 
               (5)      Although   the   report   of   the   Vigilance   Commissioner   was

available, which revealed the involvement of many other persons, Page 36 of 39 HC-NIC Page 36 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT yet those were not arraigned as accused in the course of the trial in exercise of powers under Section 319 of the Cr. P.C. (6) The trial Court committed an error in not considering the report of the Vigilance Commissioner.

                (7)      The important witnesses were not examined. 
                (8)      The trial was conducted in haste and concluded within four 
                months. 


         40     Having considered the scope of the power to order retrial, in my

view, the same is not warranted in the case in hand. One may not fully agree with the findings recorded by the trial Court, but as explained by the Supreme Court, by itself, is not to order a retrial. Something substantial or more is required to order retrial in exercise of the revisional jurisdiction. The law laid down in the "Best Bakery case"

should not be applied mechanically to all the cases even like the case in hand. In the "Best Bakery case", the first trial was found to be a farce and is described as a 'mock trial.' In an extraordinary situation where fourteen innocent persons were burnt alive, the Supreme Court thought fit to quash and set aside the judgment and order of acquittal passed by the trial Court and affirmed by the High Court and ordered a retrial. In the overall facts and circumstances of the case, I am not convinced with the reasonings assigned by the learned Sessions Judge for retrial.

41 Thus, an order for retrial of a criminal case is made in exceptional cases, and not unless the revisional Court or 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 Page 37 of 39 HC-NIC Page 37 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT leading or tendering evidence material to the charge and in the interests of justice the revisional Court or 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 retrial 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. Harries, C. J., in Ramanlal Rathi v. The State, AIR 1951 Cal 305 observed :

"If at the end of a criminal prosecution the evidence leaves the Court in doubt as to the guilt of the accused the latter is entitled to a verdict of not guilty. A retrial may be ordered when the original trial has not been satisfactory for particular reasons, for example if evidence had been wrongly rejected which should have been admitted or admitted when it should have been rejected, or the Court had refused to hear certain witness who should have been heard. But retrial cannot be ordered on the ground that the prosecution did not produce the proper evidence and did not know how to prove their case".

[See : Ukha Kolhe v. The State of Maharastra, AIR 1963 SC 1531] 42 In the present case, undoubtedly, the trial before the Magistrate suffered from few irregularities which I have already set out in para 39. The evidence, such as was led, was deficient in important respects; but that could not be a sufficient ground for directing a retrial.

43 I may take note of the fact that the writ application, in public interest, was of 1993. The same was taken up for hearing and decided on 23rd April, 2001 i.e. almost after a period of eight years. The criminal case culminated in acquittal of the accused herein i.e. the petitioner on 30th April, 2008. The Revisional Court took suo motu cognizance of the Page 38 of 39 HC-NIC Page 38 of 39 Created On Wed Feb 17 03:45:13 IST 2016 R/SCR.A/831/2010 CAV JUDGMENT judgment and order of acquittal and ordered retrial on 6th April, 2010. This petition was admitted on 12th August, 2010, and the operation of the impugned order was stayed. The same is being disposed of after six years from the date of admission. Having regard to the chronology of dates and the time period which has elapsed, the retrial will be nothing but an empty formality.

44 In the result, this application succeeds, and is, hereby, allowed. The impugned judgment and order dated 6th April, 2010 passed by the learned Sessions Judge, Anand in the Criminal Revision Application (Suo Motu) No.447 of 2009 is, hereby, ordered to be quashed. Rule is made absolute to the aforesaid extent.

(J.B.PARDIWALA, J.) chandresh Page 39 of 39 HC-NIC Page 39 of 39 Created On Wed Feb 17 03:45:13 IST 2016

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