Gujarat High Court
Samsuddin Dadabhai Jakhra vs State Of Gujarat on 8 October, 2018
Author: S.G. Shah
Bench: S.G. Shah
R/CR.RA/604/2016 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 1 of 2017
IN R/CRIMINAL REVISION APPLICATION NO. 604 of 2016
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SAMSUDDIN DADABHAI JAKHRA Versus STATE OF GUJARAT ========================================================== Appearance:
MR. JAY M THAKKAR for the PETITIONER(s) No. MR KL PANDYA, ADDL PUBLIC PROSECUTOR for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 08/10/2018 CAV ORDER
1. Heard learned advocate Mr. Umesh Trivedi appearing with learned advocate Mr. Jay Thakkar for the petitioners and learned APP Mr. K. L Pandya for respondent - State. Perused the record.
2. Petitioners herein are accused Nos.2, 3 and 4 before the learned Additional Sessions Judge of Una in Sessions Case No.3 of 2013 and 5 of 2013. They were also petitioners in main Criminal Revision Application No.604 of 2016. Such revision petition was allowed by oral judgment dated 08.09.2016, whereby order dated 19.06.2016 below Exh. 151, an application under Section 91 of the Code of Criminal Procedure, calling upon certain documents from the investigating agency has been quashed and set aside. Thereby it is clear that when the Sessions Court has rejected such Page 1 of 14 R/CR.RA/604/2016 IA ORDER application to call upon certain documents from the investigating officer, this Court has while quashing such order of rejection allowed such application at Exh. 151, directing the investigating agency to produce all documents as prayed for in such application at Exh. 151 on record of the Court, making it clear that while producing such documents before the Court, the investigating agency would require to provide its copies to the accused being petitioners herein. This Court has also made it very much clear in such judgment dated 08.09.2016, in main revision petition, that such production should not be treated as proof or evidence of contents of documents but such documents shall have to be proved by the petitioners - accused in accordance with law. Thereby, production of such documents would be treated as production of documents only, as defence by the accused.
3. It seems that probably investigating agency has failed to execute such order in its true perspective, though such order is not challenged before the appropriate forum i.e. the Honourable Supreme Court in such cases. Thereby, it becomes obligatory i.e. compulsory for the investigating agency to produce all such documents before the Sessions Court as asked for by the accused.
The record shows that, even till such issue is raised even before this Court, there was no denial by the opponent that some of such documents are not available or not in existence and, therefore, they could not produce the same. The main contentions by the State, Page 2 of 14 R/CR.RA/604/2016 IA ORDER both before the lower Court and before this Court is only to the effect that accused has no right to ask for such documents and Court has no power to pass such order, more particularly, when such documents are regarding defence of alibi by the original accused and when the investigating agency has found that such evidence of alibi is not proper to the extend benefit of doubt to the accused. Based upon such premise investigating agency has after completing investigation filed a charge sheet against accused without disclosing the material gathered and collected by it from various witnesses which may otherwise goes to prove that accused
- petitioners were probably not present at the place of incident at all, because there is an evidence regarding their presence at some other place that too in a hospital as a sick person under treatment. However, when version petition is allowed by judgment and order dated 08.09.2016, the State has no option but to execute such order, when they could not challenge the same before appropriate forum.
4. Unfortunately, even after detail order dated 08.09.2016, when opponent investigating agency has not produced certain documents before the Sessions Court, petitioners have preferred present application seeking following reliefs With ancillary relief to stay the further proceedings of the Sessions cases or at least not to examine the investigating officers or police witness because probably documents under reference are required to be proved Page 3 of 14 R/CR.RA/604/2016 IA ORDER through such witness.;
"6(B) This Hon'ble Court may be pleased to direct the investigating and prosecuting agency to execute and / or comply with the order passed by this Hon'ble Court vide dated 08.09.2016 passed in Criminal Revision Application No.604/2016 in toto and forthwith, in the interest of justice;
(C) This Hon'ble Court may be pleased to take appropriate action, including for contempt of Court, against the investigating and prosecuting agency for defying and non complying the order passed by the Hon'ble Court vide dated 08.09.2016 passed in Criminal Revision Application No.604/2016 in totot and thereby be pleased to impose maximum punishment, in the interest of justice."
4.1 At this stage, it cannot be ignored that some of the accused are still in judicial custody as they are not released on bail and, therefore, practically accused must be in hurry to complete the trial of the sessions case but when they are pressing to stay further proceedings of the trial, practically they are extending their judicial custody on their own. It is also to be recollected here that petitioners are facing charges under Section 302, 143, 147, 148, 149, 120B, 504 and 506(II) of the Indian Penal Code read with Section 25(1) of the Arms Act.
5. Opponent - State has while contesting present application filed an affidavit in reply by one Mr.R.N.Rajyaguru, Police Sub Inspector, Gir Somnath, now first time producing as many as 19 documents before this Court. It seems that even after direction by the judgment dated 08.09.2016 opponent has not produced all such documents before the trial court.
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R/CR.RA/604/2016 IA ORDER 5.1 Whereas, pursuant to observations by the Court in previous
interlocutory orders, affidavit in reply is filed by one Mr. S. R. Tandel, Police Inspector of Crime Branch of Ahmedabad City, again annexing almost same documents which were produced with affidavit of Mr. Rajyaguru as discussed herein above. However, it is clear that there is no proper compliance of order dated 08.09.2016.
6. In addition to non production of several documents by the Investigating Officer as aforesaid, learned advocate for the petitioners has pointed out several other discrepancies and other irregularities as well as selectiveness of the opponent as under;
➢ That though statement of Doctors namely Dr. G. Z. Shah, Dr. R. G. Shah and some other doctors was referred and copy of which was requested to be produced on record, the investigating agency has produced statement of only one doctor namely Dr. R. G. Shah only.
➢ The Police has pre supposed that details regarding presence of accused at other places then the place of incident is concocted and thereby petitioners have committed further offence by creating evidence for alibi, without allowing the petitioners to prove the alibi and without discussing the evidence collected by them before the Court.
➢ It is surprising to note that in addition to documents produced by one Gambhir Sinh with his affidavit dated 07.06.2017, i.e. after this Court's order dated 08.09.2016 it is Page 5 of 14 R/CR.RA/604/2016 IA ORDER stated on oath by the deponent who is representing the investigating agency that he is producing certain documents, but rest of the documents shall be produced by the investigating officer with his signature. Therefore, it is submitted that practically there is an admission by the opponent investigating agency that there are other documents but it will be produced by the investigating officer. Such affidavit supports the contention by the petitioners that there is no compliance of order dated 08.09.2016 even till filing of such application on 22.08.2017 though investigating agency has took almost 10 months in compliance of order dated 08.09.2016.
➢ Petitioners have also pointed out and there is substance in such submission when it is brought to the notice of the Court that though in affidavit dated 29.08.2018, Police Sub Inspector, Crime Branch Mr. S. R. Tandel has, in para 34, making a statement that they are unable to produce documents as per Sr. No.28 of Exh. 151 i.e. Register of Hotel Balvas with entry number, because it was not collected at the relevant time by the then Investigating Officer, in fact in his statement dated 20.08.1992, receptionist namely Dharmdas Ramlal copy of which is produced on record by police sub Inspector of Vaghai Police Station namely Mr. M. L. Damor with his affidavit dated 11.09.2018 (page 194); wherein witness has categorically stated that petitioners were stayed Page 6 of 14 R/CR.RA/604/2016 IA ORDER in his hotel and all those entries made in their register and he is providing copies of registers and copies of bill book to the investigating officer. He has also categorically stated that police has inquired about CCTV footage which was shown to the Investigating Officer and agreed to provide CD of such footage to the police. Therefore, when Investigating Officer and other officers of the respondents have came forward with a case that they have not recovered a register at all as recorded herein above, it becomes an evidence on record, that too in the form of an affidavit by the Investigating Officer denying the recovery of documents and statement by witness before the Investigating Officer itself, that documents are recovered by him. Thereby, there is prima facie evidence regarding non compliance of Court's order and therefore petitioners have prayed to pass appropriate orders for contempt of Court against concern officer of the State. ➢ There is statement on oath in affidavit dated 29.08.2018 by the Police Sub Inspector Mr. S. R. Tandel that affidavit dated 22.02.2018 by the Police Sub Inspector MR. R. N. Rajyaguru is in compliance of Court's direction accepting the details of Balvas Hotel. Therefore, on one hand there is an attempt by the respondents that there is full compliance and other hand if there is any other incident to confirm non compliance, there is misguiding statement by officers of respondent on oath before this Court.
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R/CR.RA/604/2016 IA ORDER ➢ Learned advocate for the petitioners has also pointed out that in fact while producing the documents before the trial Court on 09.11.2016 with list at Exh. 290, in fact, respondents have categorically admitted that they are producing only those documents which were available with them in their record and thereby when there is clear statement below list of only 13 documents that remaining documents shall be produced by the investigating officer after he search out such documents from record, it becomes clear that there is non compliance of order dated 08.09.2016 with admission about such non compliance and, therefore, to that extent the statement on oath by the deponents referred herein above that they have complied with the Courts order is absolutely false.
7. Pursuant to such controversies and to some extent admitted fact on record that there is some irregularities in the investigation and non disclosure of material asked for by the appellant - accused though it was available with the investigating agency, collected during investigation, this Court has directed the investigating agency to place case diary before the Court for scrutiny and if necessary in seal cover. Pursuant to such direction respondents have placed xerox copy of case diary in seal cover. While dictating this order, I have called for such seal cover and peruse the case diary to verify that whether there is any evidence regarding Page 8 of 14 R/CR.RA/604/2016 IA ORDER irregularities in investigation or not. Surprisingly, the scrutiny of case diary makes it clear that, probably it was not maintained in accordance with law and probably it was prepared only after filing of the charge sheet. Now it is very much clear on record, when Police Sub Inspector Mr. R. N. Rajyaguru with his affidavit dated 22.02.2018 so also learned APP before the Sessions Court with his list dated 09.11.2016 placed on record statement of Dr. Rajan. G. Shah dated 01.10.2012 wherein doctor has stated that from night of 28.07.2012 till 30.07.2012 one of the applicant namely Ismail @ Rahim Dadabhai Zhankhra was admitted in his hospital with a statement that he is producing treatment papers and abstract of register maintained by his hospital before the Investigating Officer, activity of such investigation i.e. recording statement of doctor, collecting documents and thereby drawing panchnama of collecting such documents from witness are not disclosed in case diary wherein on page 134 there is disclosure of activity carried out on 29.09.2012 which continued to end of page 135 and on 136 activities carried out on 02.10.2012 is recorded. It is also surprising to note that page 135 and 136 is practically two sides of same page and therefore there is least scope of missing any page in between and thereby there is clear evidence that there is no investigation on 30.09.2012 and 01.10.2012. Whereas the statement of Dr. Rajan G. Shah was also recorded on 01.10.2012 as can be seen from the copy of such documents which is produced on record before this Court as well as before the trial Court with a Page 9 of 14 R/CR.RA/604/2016 IA ORDER disclosure that it was recorded on 01.10.2012 even by learned APP. Therefore, though the Investigating Officer has recorded statement of doctor on 01.10.2012, he has not disclosed this part of investigation in his case diary and that while receiving / collecting several documents from the doctor and when some of them are not produced on record, there is no disclosure of any such activity in the case diary. Though documents procured are also produced on record, no recovery panchnama was drawn by the police and, therefore, not produced before the Court and there is no disclosure in case diary about such panchnama.
7.1 Similarly, though now statement dated 20.08.2012 of receptionist namely Dharmdas is produced on record and wherein there is also a reference of collecting certain documents from such witness, in police diary at page 86 where activities carried out during investigation on 20.08.2012 is disclosed, there is no disclosure about recording statement of such Dharmdas so also collecting some documentary evidence from him. 7.2 Similarly though statement of Jebunissa Alikhan Pathan, who is serving in Sanjeev Shah Orthopedic Hospital and Umedbhai Hamidbhai, Neighbor has been recorded on 25.08.2012 and when its copies are now produced on record with an affidavit dated 11.09.2018 by Mr. M. L. Damor, PSI, the case diary for relevant dates on page 91 to 96 makes it clear that in fact there is no Page 10 of 14 R/CR.RA/604/2016 IA ORDER investigation on 25.08.2012.
7.3 Similarly though statement on 01.10.2012 of one Abdulajij Abdullabhai is produced on record with an affidavit as well as with documentary list before the Sessions Court, there was no reference of recording such evidence in case diary.
8. It seems that considering the above situation, the Sessions Court has tried to see that there is proper compliance or order dated 08.09.2016. However, it could not succeed.
9. It is surprising to note that on 14.12.2016, ASI, Mr. R. D. Vyas has filed an affidavit that they have produced documents which are collected during investigation at Surat on record with D list. However, such part of investigation is not disclosed in the case diary. For investigation at Surat, Police Inspector, Mr. G. N. Jhala has granted permission and, therefore, he has filed an affidavit. Therefore, now it will be difficult for the respondents to avoid the situation which is emerging on record and disclosed herein above which confirms that there is material irregularity in the investigation which resulted into continuity of the custody of the present petitioners for the long time.
10. So far as register of Hotel Balvas is concerned, it is submitted by learned APP who is instructed by the concerned police Officers Page 11 of 14 R/CR.RA/604/2016 IA ORDER who are present before the Court that since such xerox copy does not disclosed the name of hotel or the name of the accused, they do not confirm that this is the same documents which petitioners are asking to produce and, therefore, they could not produce it. However, uncertified xerox copy shown to the Court, which is taken on record, on the contrary confirms that it is not for the dates under reference i.e. from 28.07.2012 to 30.07.2012.
11. In view of above factual details there is prima facie evidence on record regarding non compliance of order dated 08.09.2016. Therefore, there is no option but to direct the respondents to comply with the order dated 08.09.2016 in its true sense and perspective. Thereby prayer in terms of para 6(B) needs to be allowed as prayed for and it is thereby allowed. 11.1 Petitioners are free to produce any of the documents produced herein before the Sessions Court in their defence including affidavits filed by the different police officers, during the trial and they are also at liberty to call any such officer for cross examination or for disclosing any further information with respect to their disclosure in such affidavit(s).
12. So far as prayer in para 6(C) is concerned, though prima facie there is evidence that there is disobedience of Court's order considering the difference between disobedience of Court's order Page 12 of 14 R/CR.RA/604/2016 IA ORDER and contempt of Court at this stage, it would be appropriate to allow the Sessions Court to proceed further in the trial with a liberty to the accused to adduce an evidence either during cross examining the investigating officer or evidence on their own, so as to brought on record the factual details regarding commission of contempt Court's orders. For the purpose, the consideration is quite clear and obvious that order of contempt cannot be passed without issuance of notice to the other-side and without giving him proper opportunity to defend himself. Therefore before passing an order let there be an evidence before the Sessions Court which may confirm the contempt and, therefore, the trial Court shall not restrict the petitioners - accused to adduce appropriate evidence so as to prove contempt by particular person.
12.1 Based upon such evidence, trial Court shall refer the matter to this Court for proceeding further for initiating contempt proceedings against persons who have actually committed the contempt. To that extent practically there is direction to initiate proceedings to record the evidence that whether there is contempt or not and if yes, who has done it, since there is prima facie evidence on record regarding contempt but without clarity that who has committed it
13. In view of above facts and circumstances the present application is allowed whereby there are directions as per prayer Page 13 of 14 R/CR.RA/604/2016 IA ORDER clause 6(B) and for 6(C). The Sessions Court shall proceed further in accordance with discussion herein above. The Misc Civil Application is partly allowed. Direct service is permitted.
(S.G. SHAH, J) DRASHTI K. SHUKLA Page 14 of 14