Gujarat High Court
Pradeep Nirankarnath Sharma vs State Of Gujarat on 11 June, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6536 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of lawNo
as to the interpretation of the Constitution of India or
any order made thereunder ?
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PRADEEP NIRANKARNATH SHARMA
Versus
STATE OF GUJARAT
============================================
Appearance:
MR HB CHAMPAVAT(6149) for the Applicant(s) No. 1
MR RJ GOSWAMI(1102) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR MITESH AMIN PUBLIC PROSECUTOR WITH MS MAITHILI D
MEHTA ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
============================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 11/06/2021
CAV JUDGMENT
1. Heard learned Advocate Shri R.J. Goswami with learned Page 1 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 Advocate Shri H.B. Champavat for the applicant and learned Public Prosecutor Shri Mitesh Amin with learned Additional Public Prosecutor Ms. Maithili D. Mehta for the respondents.
2. Issue Rule returnable forthwith. Learned Public Prosecutor with learned Additional Public Prosecutor waives service of rule on behalf of the respondents
3. With consent of the parties, the present petition is taken up for final hearing.
4. By way of present petition, the petitioner challenges the judgement and order dated 09.02.2019 passed by the learned 8 th Additional Sessions Judge, Kachchh at Bhuj in Criminal Revision Application No. 41 of 2018 whereby order below Exh. 204 in Criminal Case No. 1405 of 2011 dated 17.03.2018 passed by learned Chief Judicial Magistrate, Katchchh at Bhuj was confirmed.
5. The facts leading to the present petition in brief are as under:
5.1 At the relevant point of time the petitioner was in judicial custody as an under-trial prisoner in connection with the offence bearing I-C.R. No. 09 of 2011 and I-C.R. No. 01 of 2011 registered Page 2 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 with CID Crime, Rajkot Zone Police Station. During the course of search in Barrack No. 11 where the petitioner was lodged at Palara Jail, Bhuj on 13.06.2014, a mobile phone along with sim card were seized. An FIR came to be registered with the Bhuj Taluka Police Station bearing II-C.R. No. 3100 of 2011 by the Police Inspector (SOG). FIR was lodged for the offence punishable under Section 188 of the Indian Penal Code (hereinafter referred to as 'IPC') and Sections 42, 43 and 45(12) of the Prisons Act, 1894 (hereinafter referred to as 'the Prisons Act').
5.2 An investigation was carried out with regard to the said complaint and whereas the petitioner and other accused were arrested in connection with the said complaint. The Investigating Officer had submitted a report dated 15.06.2011 for adding charge under Sections 465, 468, 471 read with Section 120B of the IPC. Ultimately the Investigating Officer had filed charge-sheet against accused before the learned Magistrate on 09.08.2011 for offences punishable under Sections 465, 468, 471 read with Section 120B of the IPC and Section 188 of IPC as well as Sections 42, 43 and 45(12) of the Prisons Act. The criminal case which was registered pursuant to the charge-sheet was numbered as Criminal Case No. 1405 of 2011. Since the procedure as contemplated under Section 195 read Page 3 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 with Section 340 of the Criminal Procedure Code, 1973 ( hereinafter referred to as 'Cr.P.C') was not followed by the Investigating Officer before initiation of prosecution therefore the petitioner preferred application at Exh. 29 on 03.12.2011 before the learned Trial Court with a request to return the charge-sheet to the Investigating Officer for following appropriate procedure. The said application came to be rejected by the learned Trial Court vide order dated 11.07.2014. The petitioner had thereafter preferred Criminal Revision Application No. 103 of 2014 before the learned Sessions Court and whereas vide order dated 17.07.2015 the learned Sessions Court had been pleased to reject the application preferred by the petitioner. The petitioner thereafter preferred Special Criminal Application No. 4906 of 2015 before the this Court and whereas on the statement made by the learned Advocate General that the State would not have any objection if the trial is proceeded further against the petitioner except with regard to offence punishable under Section 188 of I.P.C., the petition had been withdrawn. It would be pertinent to note that liberty had been reserved for filing appropriate complaint before Magistrate as provided under Section 195 of Cr.P.C. with regard to offence punishable under Section 188 of I.P.C. It wold be further pertinent to note that liberty was also reserved in favour of the petitioner to file discharge application Page 4 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 before the learned Trial Court.
The petitioner had thereafter preferred discharge application at Exh. 204 under Section 239 of Cr.P.C on 13.10.2017 and whereas the learned Trial Court after hearing the petitioner as well as the respondent-State had been pleased to reject the said application vide order dated 17.03.2018. The petitioner being aggrieved by the aforesaid order had preferred Criminal Revision Application No. 41 of 2018 before the District and Sessions Court at Bhuj-Kachchh. After hearing both the parties learned 8 th Additional Sessions Judge, Kachchh at Bhuj had been pleased to rejected the said Revision application vide judgement and order dated 07.02.2019. The petitioner being aggrieved and dissatisfied with the same has preferred the present petition before this Court.
6. Heard learned Advocate Shri R.J. Goswami with learned Advocate Shri H.B. Champavat for the petitioner. Learned Advocate has taken this Court through to the impugned judgements passed by the learned Sessions Court as well as the learned Trial Court as well as through other documents on record and extensively through the Prisons Act. Learned Advocate for the petitioner has taken this Court through the definition of 'prison' in Section 3(1) and in the definition of word 'prohibited article' under Section 3(9) of the Prisons Act. Learned Advocate has emphasized Page 5 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 that 'prohibited article' according to the definition means an article which is expressly prohibited by any rule under this Act and whereas the said article is prohibited to be introduced or removed into or out of the prison. Learned Advocate has emphasized that there have to be specific rules to define a prohibited article. Learned Advocate has thereafter taken this Court through Section 21, which is with the regard to duties of gate-keeper. Learned Advocate has further taken this Court through Section 24 which is with regard to examining prisoners or admission and whereas it is submitted that the mobile phone and sim card which are the alleged prohibited articles were not seized by the gate-keeper who as per the requirement of Section 21 is under an obligation to search any person entering the prison and leaving the prison. He further submits that every prisoner would be examined upon admission to prison and as regards the petitioner nothing had been found at the time of his admission. He further took this Court through Sections 42, 43 and 45(12) and 46 of the Prisons Act and has inter alia submitted that 'prohibited article' has to be declared as such by rules made under Section 59 of the Prisons Act and whereas according to the learned Advocate there are no rules framed under Section 59 of the Prisons Act which declares a mobile phone and sim card to be prohibited articles. Relying upon Page 6 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 Sections 46 and 49 learned Advocate has submitted that conjoint reading of Section would lead to a reasonable conclusion that it is Superintendent who has powers to examine whether a person who has committed offence and to decide appropriate punishment thereof. Relying upon Section 49, learned Advocate has submitted that the said Section carves out an exception to Section 46 inasmuch as punishment other than punishments prescribed in the sections other than Section 49 could be imposed only by the order of a Court of Justice. Learned Advocate has relied upon Section 59(1)(13) to submit that rules are necessary as per Section 59(1) (13) for defining prohibited articles. He has further relied upon Section 59(2) which requires that as soon as the rules have been made under Section 59, the same had to be laid before the State Legislature. Learned Advocate has sought to submit that no rules have been framed by the Government under the said Section for declaring articles as prohibited article and hence recovery of a mobile phone and sim card could not result in the petitioner being charged with offences under the Prisons Act. Learned Advocate further submits that notification no. GG/18/2009/Zalak/112009- 3985/J dated 12.10.2009 being relied upon by the respondent-State is not a 'rule' at all and whereas it is a mere notification. Page 7 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021
7. Learned Advocate has sought to rely upon decision of the Hon'ble Supreme Court in case of Varinder Singh vs. State of Punjab and Another reported in (2014) 3 SCC 151. According to the learned Advocate the present issue is squarely covered by the decision of the Hon'ble Supreme Court and therefore relying upon the said judgement he has submitted that this Court may allow the petition.
7.1 Learned Advocate for the petitioner has further submitted that fresh proceedings have been initiated by filing complaint before the learned Magistrate for the offence punishable under Section 188 of IPC.
7.2 Learned Advocate for the petitioner has summed up his arguments by submitting that since there are no rules framed under Section 59 of the Prisons Act whereby mobile phone has been declared as 'prohibited article' and furthermore since no material has been produced to support the offence under Sections 465, 468, 467 and 471 of the Indian Penal Code and moreover since there is no material produced as far as conspiracy is concerned therefore the charges against the petitioner being groundless, the petitioner ought to be discharged. Page 8 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021
8. As against the same, learned Public Prosecutor Shri Mitesh Amin has submitted that the petitioner has successfully managed to stall the proceedings for almost 10 years after filing of the criminal complaint and whereas learned Public Prosecutor has drawn attention of this Court to order dated 14.09.2017 of this Court ( Coram: A.J. Desai, J.) in Special Criminal Application No. 4906 of 2015 whereby the Court while permitting the petitioner to withdraw the said application with liberty to file appropriate application for discharge had clearly intended that the learned Trial Court should proceed without any further delay. Learned Public Prosecutor has emphasized on the observations " trial court shall proceed further with the case forthwith with regard to the other offences" . Learned Public Prosecutor has submitted that the intent of the Court was that while the applicant was at liberty to prefer discharge application with regard to offence punishable under Section 188 if the Investigating Officer files a complaint before the Magistrate but as far as the other offences are concerned, the learned Trial Court was directed to proceed further.
8.1 Learned Public Prosecutor has further submitted that the offence under the Prisons Act as well as offence under the Indian Penal Code are interlinked and that the offence under the Prisons Page 9 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 Act cannot be dissected from the offences under the Indian Penal Code. Learned Public Prosecutor has further submitted that notification dated 12.10.2009 was admittedly issued in exercise of power under Section 59 of the Prisons Act and therefore it cannot be contended that the State has not promulgated a rule whereby the mobile was declared as a 'prohibited article'.
8.2 Learned Public Prosecutor has also submitted that insofar as allegation that there is no material to support the allegation of conspiracy, that there was sufficient material on record to show that the accused who was lodged in a prison at the relevant point of time had procured mobile phone with the help of other co-accused and whereas signature of witness Bhavesh Shantilal Mistri had been forged to obtain sim cards. Learned Public Prosecutor has relied upon the decision of the Hon'ble Supreme Court reported in case of Shivnarayan Laxinarayan Joshi and others vs. State of Maharashtra and others reported in AIR 1980 SC 439 to submit that conspiracy is always hatched in secrecy and it may be impossible to adduce direct evidence. He has further submitted that as such role of this Court in a petition where order of framing charge is challenged is very limited and whereas learned Public Prosecutor has relied upon observations of the Hon'ble Page 10 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 Supreme Court in case of Asian Resurfacing of Road Agency Private Limited and another vs. Central Bureau of Investigation reported in 2018(16) SCC 299 in that regard. Thus learned Public Prosecutor has submitted that both the learned lower Courts have not committed any patent error of jurisdiction requiring interference of this Court and therefore this Court may not entertain the petition preferred by the petitioner.
9. In rejoinder learned Advocate Shri Goswami for the petitioner has relied upon decision of the Supreme Court in case of Union of India versus Prafulla Kumar Samal and another reported in 1979(3) SCC 4 where the Hon'ble Supreme Court has laid down the principles to be considered while considering the question of framing charge.
10. Learned Advocate Shri Goswami has also submitted that insofar as the allegation that the petitioner has stalled the proceedings, there is no overt-act by the petitioner to delay the proceedings and whereas the petitioner had availed the remedies available to him under the law and other than the same there is no dilatory tactics adopted by the petitioner.
11. Learned Advocates for the respective parties have not Page 11 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 submitted anything further.
12. Heard learned advocates for the parties and perused the record as well as the orders of the learned Lower Courts. At the outset it required to be noted that the Supreme Court in case of Asian Resurfacing of Road Agency Private Limited and another vs. Central Bureau of Investigation reported in 2018(16) SCC 299 has circumscribed the jurisdiction of this Court while considering a petition challenging the order of charge by holding "Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter".
(emphasis supplied) 12.1 Thus what is to be considered by this Court at this stage is whether the learned Lower Courts have committed any patent error of jurisdiction or not. At this stage it would be required to be noted that learned Advocate for the petitioner has made his submissions as regards all the issues which he had raised before the learned Lower Courts and whereas no attempts have been made to argue before this Court on any specific point where the learned Lower Courts having committed any patent error of jurisdiction which requires interference of this Court. Page 12 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021
13. At this stage it would be worthwhile to refer to decision of the Supreme Court in case of Sajjan Kumar vs. Central Bureau of Investigation reported in 2010 (9) SCC 368 where the Supreme Court has set out the principles as regards exercise of jurisdiction under Sections 227 and 228 of the Code of Criminal Procedure. Para 17 of the judgment is reproduced as under:
"17. Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.
On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:-
(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.Page 13 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022
R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021
vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." The aforesaid would be relevant insofar as considering the decisions of the Trial Court as to whether the Trial Court has exercised its jurisdiction in terms of the principles as set out by the Supreme Court in case of Sajjan Kumar vs. Central Bureau of Investigation(supra). Insofar as the scope of revisional power of Sessions Court, it would be beneficial to refer to the decision of the Supreme Court in case of Amit Kapoor vs. Ramesh Chander reported in (9) SCC 460 whereby the Supreme Court has explained the revisional powers of the Court exercising jurisdiction under Section 397 of the Cr.P.C.
"Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of Page 14 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."
14. Thus this Court is required to examine the impugned judgements, by the Trial Court as well as the Revisional Court, as to whether the said lower Courts have exercised their jurisdiction in consonance with the principles set out by the Supreme Court in case of Sajjan Kumar vs. Central Bureau of Investigation(supra) and in case of Amit Kapoor vs. Ramesh Chander (supra). Such critical examination would have to be done by this Court keeping in mind the scope and jurisdiction available to this Court as set out by the Supreme Court in case of Asian Resurfacing of Road Agency Private Limited and another vs. Central Bureau of Investigation( supra) .
15. The learned Trial Court as well as the learned Sessions Court as regards offence under Sections 42, 43 45(12) of the Prisons Act have noted that it was contended on behalf of the petitioner herein that the Government has neither framed the rule nor laid the same before the State Legislature as contemplated under Section 59 of the Prisons Act and since the said procedure is not complied with, Page 15 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 therefore the petitioner could not be charged for committing the said offence. The learned lower Courts have noted that as against the submission for the petitioner, the prosecution had submitted that there is a notification of the Government prohibiting articles of communication in the prison and whereas the petitioner herein committed breach of the said notification by receiving, possessing and using the mobile phone and sim card in the jail. That the notification is dated 12.10.2009, being admittedly prior to the date when the petitioner was found in possession of the prohibited articles. While it is argued by the prosecution that the notification has been issued by the Government in exercise of powers under Section 59 of the Prisons Act and whereas while the petitioner has argued about the legality and validity of the notification dated 12.10.2009, and whereas on the said issue both the learned Lower Courts have come to the conclusion that the same is required to be proved by leading evidence. In the opinion of this Court, by coming to such conclusion, both the learned Lower Courts have not committed any patent error of jurisdiction which requires interference by this Court at this stage. The issue as to whether notification relied upon by the State is a Rule under Section 59 of the Prisons Act, would have to be proved by leading of evidence and the same would not be adjudicated by a Court while examining Page 16 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 an application for discharge. Thus in the considered opinion of this Court, the findings arrived at by the learned sub-ordinate Court are sustainable, requiring no interference.
16. Insofar as reliance placed by the learned Advocate for the applicant, upon decisions of the Supreme Court in case of Varinder Singh (supra), in view of the fact that the notification being relied by the State as being a Rule, admittedly being much prior to the date of the search, when the mobile phone etc. was seized therefore the ratio laid down by the said judgement would not be applicable in the facts of the present case.
17. Furthermore, the Courts below have come to a conclusion as regards the challenge to offence under Sections 465, 471 and 120B of Indian Penal Code that the Investigating Officer has recorded statement of one Mr. Bhavesh Shantilal Mistry whose documents are alleged to have been used by the accused and also the statement of sim card dealer and further call details are also produced along with police papers submitted before the Courts below. That the Courts below have noted that signature of the said Mr. Mistry is alleged to have been forged by the accused for obtaining the sim card and under such circumstances, the Courts below have held that the sim card and mobile phone were obtained by the accused Page 17 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 persons by hatching criminal conspiracy in which each of the accused persons have done some overt-act and are liable as per Section 10 of the Evidence Act for conspiracy,
18. It had been argued before the learned Trial Court as well as the revisional Court that there is no direct evidence of conspiracy between the accused persons and therefore the charge of conspiracy is baseless. That both the Courts have held that conspiracy is always hatched in secrecy and it is impossible for the prosecution to adduce direct evidence with regard to the conspiracy. In most of the cases, the existence of the conspiracy can therefore be inferred from the circumstances proved by the prosecution if such inference is possible then the prosecution need not necessarily prove that perpetrators expressly agreed to do or cause to be done the illegal act. Furthermore both the lower Courts have held that the existence of the conspiracy and its objects can be inferred from surrounding circumstances and circumstantial evidence and and conduct of the accused. Both the Lowers Courts have further held that considering the material placed before the Court the allegation of conspiracy does not appear to be groundless. This Court is in agreement with the findings of the learned lower Courts as regards the charge of conspiracy. The Supreme Court in case of Page 18 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 Shivnarayan Laxinarayan Joshi and others vs. State of Maharashtra and others reported in AIR 1980 SC 439 has held that conspiracy can only be proved largely from the inference drawn from the act or illegal omission committed by the conspirator in pursuance of a common thing. Thus considering the findings of the learned Lowers Courts on this aspect and considering the observations of the Supreme Court in case of Shivnarayan Laxinarayan Joshi and others vs. State of Maharashtra and others(supra) as referred to above, this Court is of the opinion that no patent error of jurisdiction is committed by the learned lower Courts.
19. Insofar as the issue of dilatory tactics having been adopted by the petitioner, this Court finds favour in the submissions advanced by the learned Public Prosecutor. In the earlier round of litigation, this Court had passed order dated 14.09.2017 in Special Criminal Application ( Quashing) No. 4906 of 2015 which reads as thus:
"Learned Advocate General Mr. Kamal Trivedi assisted by Mr. Mitesh Amim, learned Public Prosecutor, appearing for the State of Gujarat states the State has no objection at this stage that if, the trial is proceeded further against the petitioner, except with regard to an offence punishable under Section 188 of the Indian Penal Code. However, he further states if the concerned officer find necessary, may file an appropriate complaint before the Magistrate as provided under Section 195 of the Code of Criminal Procedure, 1973,and seeks liberty for the same.
In view of the above statements, learned advocate Page 19 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021 Mr.Goswami, appearing on behalf of the applicant seeks permission to withdraw the present application with a liberty to file an appropriate application for discharge before the learned Trial Court. Trial Court shall proceed further with the case forthwith with regard to the other offences.
Permission to the petitioner and respondent No.1 as prayed for is granted. The present application is disposed of as withdrawn, with the above liberty."
19.1 In the considered opinion of this Court, liberty was reserved to file application for discharge before the Trial Court with regard to a complaint that may be filed by the concerned officer before the Magistrate as provided under Section 195 of the Code of Criminal Procedure, 1973 and whereas the Court has specifically directed that the Trial Court shall proceed further forthwith with regard to other offences. The words other offences in the context of the order would mean offences other than offence punishable under Section 188 of the Indian Penal Code. Inspite of such a clear direction it appears that a discharge application has been filed for the 'other offences' which was resulted in the Trial being stalled for all this while even after the above referred direction of this Court. Thus it appears that the petitioner has misused the liberty granted by this Court vide order dated 14.09.2017 but since this issue does not appear to have been agitated before the learned lower courts, this Court refrains itself from making any further observation/direction in this regard. Page 20 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022 R/SCR.A/6536/2019 CAV JUDGMENT DATED: 11/06/2021
20. In view of the discussion, findings and conclusions as noted hereinabove, this Court is of the considered opinion that no interference is warranted against the orders passed by the learned sub-ordinate Courts, hence the present petition is rejected. Rule is discharged.
(NIKHIL S. KARIEL,J) niru Page 21 of 21 Downloaded on : Sat Jan 15 05:01:59 IST 2022