Gujarat High Court
Sanjiv Rajendra Bhatt vs State Of Gujarat on 21 May, 2020
Author: B.N. Karia
Bench: B.N. Karia
R/CR.RA/1650/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1650 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
thereunder ?
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SANJIV RAJENDRA BHATT
Versus
STATE OF GUJARAT
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Appearance:
MR SAURIN A SHAH(791) for the Applicant(s) No. 1
MR. MITESH AMIN,PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 21/05/2020
CAV JUDGMENT
1. By way of present application, present applicant has challenged the order dated 23.08.2019 passed below Exh. 11 in Special NDPS Case No. 3 of 2018 pending before the Court of learned Special Judge, Banaskantha at Palanpur. Page 1 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT
2. Heard learned advocate for the applicant at length as well as learned Public Prosecutor for the respondent-State.
3. Learned advocate for the applicant in his argument has stated that order passed below Ex. 11 in Special NDPS Case No. 3 of 2018 is prima facie against the principles of law and illegal one. That, in respect of Prohibition Case, being CR No. I- 216 of 2016, registered with Palanpur City Police Station, "A" summary report was submitted by the Divisional Police Officer on 28th February 2000. That, learned Special Judge failed to consider that if any further investigation in respect to above crime was required then it was the duty of such officer to obtain an order. That, while deciding Special Criminal Application No. 1079 of 1998 with Special Criminal Application No. 680 of 1999, it was not brought to the notice of this Court about the fact that "A" Summary report after thorough investigation was submitted on 28th February 2000 by Investigating Agency before the court, and therefore, this court was left under the impression that though the offence registered being CR No. I-216 of 1996 at Palanpur was crucial for investigation. That, it is the duty of the Special Judge, Palanpur to send a report to this court about the fact of "A" Page 2 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT Summary report submitted after thorough investigation. That, learned Special Judge has failed to consider that Sumer Singh Rajpurohit had filed one FIR being CR No.I-403 of 1996 on 18th November 1996 at Kotwali Police Station, Pali for the offence punishable under Sections 120B, 195, 196, 343, 357, 369, 458, 482 of the Indian Penal Code read with Sections 17, 58(1) and 58(2) of NDPS Act. That, in Special Criminal Application No. 1302 of 1997 with Special Criminal Application No. 1309 of 1997, this Court was pleased to direct that the investigation shall be completed expeditiously latest by 15th January 1998. That, learned Special Judge failed to consider that as per the direction, Superintendent of Police, CID (CB), Rajasthan-Jaipur had carried out investigation in FIR, being CR No. I-403 of 1996 registered at Kotwali Police Station and charge-sheet was filed on 14.01.1998 against the applicant and others. Learned Special Judge, Banaskantha at Palanpur failed to consider that Superintendent of Police, CID (CB), Rajasthan-Jaipur had already seized up with the issue pertaining to "searching proper and true person who had implanted opium in room no. 305 of Hotel Lajwanti, Palanpur and for knowing the source of receiving of opium" That, Page 3 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT investigation on the same issue was carried out by different agencies ie., Superintendent of Police (Admn.), CID Crime and Railways, Gujarat State, Gandhinagar in connection with CR No. I-216 of 1996 registered with Palanpur City Police Station and submitting charge-sheet before the Court of Special Judge, Palanpur tantamount to double jeopardy is illegal and contrary to the principle of law. In support of his arguments learned advocate for the applicant has placed his reliance on the judgment of Hon'ble Apex Court delivered in the case of Ram Lal Narang v. State (Delhi Admn), reported in AIR 1979 SC 1791.
4. It is further argued by learned advocate for the applicant that as per the judgment of Hon'ble Apex court, dismissing the application to discharge the applicant is contrary and against the principle of law. That, further statement recorded by the Investigating Officer of Pravinbhai Hiralalbhai Parmar, Rameshbhai Purshottam Patel, etc. were not considered by the learned Special Judge. It is further argued that in these statements, it is clearly mentioned that investigating officer was not able to track down as to who planted 1.5 kg of narcotic drug at Hotel Lajwanti. That, it was not the case of the Page 4 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT prosecution that Shri Malabhai, who had gone to hotel Lajwanti had kept packet of opium in room no. 305 before the raid was carried out on 30.04.1996 nor applicant who went to Hotel lajwanti and kept the packet of opium in room no. 305. That, learned Special Judge failed to consider that Section 59(2)(b) of the NDPS Act would not apply or come into play. It is further argued that learned Special Judge failed to consider of invoking Section 17, 18 and 29 of the NDPS Act. In the said crime, Investigating Officer could not have cited the said accused person as witnesses in the present crime. Particularly when CR No. 403/1996 registered with Kotwali Police Station, Pali is based on the same incident which is subject matter of CR No. 216/1996 of Palanpur City Police Station. That, the present applicant was arrested on 5 th September 2018 and by that time, statement of seven persons were recorded and on bare reading of these statements, none of them have thrown any light about who brought/planted 1.5 kg of narcotic drugs in Hotel Lajwanti. Thereafter, 10 days of arrest of the applicant, story of about Malabhai having purchased packet of Opium before a day of the raid was carried out on 13 th April 1996. Further statement dated 15th September 2018 of Page 5 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT Pravinchandra Hiralal Parmar and further statement dated 16.09.2018 of Ramanbhai Parshottambhai Patel clearly indicates that arrest of the applicant was completely illegal, false and malicious. That, in Special Criminal Application No. 926 of 1998 and Criminal Misc. Application No. 4876 of 1998 preferred by Pravinchandra Hiralal Parmar have not disclosed such facts as propounded in the statement dated 15.09.2018. That, on 30.04.1996, an information was received by Shri Bababhai Savabhai, Unarmed Head Constable, Palanpur Police Station that Sumersingh Rajpurohit is an opium dealer and had lodged himself at Hotel Lajwanti with 5 kgs of Opium which was to be delivered at Palanpur. Said information was entered in Vardhi Information Register vide entry no. 360 and his statement was recorded. That, learned Special Judge has failed to consider that based upon such information, raid was carried out at Hotel Lajwanti in room No. 305 and contraband opium weighing 1.5 kgs was found from the room and seized by drawing panchnama. Thereafter, an FIR came to be registered by PI Shri IB Vyas and report thereof was sent on 30.04.1996 and 06.05.1996. That, learned Special Judge has also failed to consider that Page 6 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT Sumersingh Rajpurohit had also filed written complaint before the CJM, Pali at Rajasthan on 17.10.1996. that, against the said complaint, the State of Gujarat had initiated several proceedings ie. Special Criminal Application No. 1309 of 1997; Criminal Misc. Application No. 108 of 1999 before the High Court of Rajasthan and Special Leave Petition (Criminal) No. 1931 of 2000 before the Hon'ble Supreme Court of India. That, in all of said proceedings, consistent stand had been taken that all the officers had done their act in good faith and in discharge of their duties as contemplated under the NDPS Act, and therefore, Section 69 of the NDPS Act would squarely apply. That, Hon'ble Apex Court has stayed all the proceedings pertaining to CR No. 403 of 1996 registered with Kotwali Police Station, Pali vide order dated 1st May 2000 and stay was operating even when the applicant was arrested on 5 th September 2018 by Superintendent of Police (Admn.) CID Crime and Railways Gujarat State, Gandhinagar in connection with CR No. 216 of 1996. The prosecution has completely taken a somersault in its stand and effectuated the arrest of the applicant. That, learned Special Judge wrongly framed the charge Exh. 59 by invoking Section 21 of the NDPS Act Page 7 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT indicating that the Opium seized from room no. 305 of Lajwanti Hotel has morphine content of 0.9 percent & 'Opium derivatives' is defined under sub clause (3) of Clause XVI of Sec 2 of NDPS Act, as it cannot be said to be a part of manufacturing process. That, learned Special Judge has committed an error in not considering the facts that no cognizance of any offence as enumerated in the charge sheet could have been taken in view of the mandatory ban as contemplated in Section 161 of Bombay Police Act, Section 145, 146 and 146(A) of the Gujarat Prohibition Act, Section 197 and 186 of Criminal Procedure Code and Section 69 of the NDPS Act. It is further submitted that in the present case, two FSL reports ie., dated 25.07.1996 and 27.09.1996 are available. That, procedure of sending samples twice for chemical examination is by itself improper and illegal. That, sending muddamal samples twice itself suggest that prosecution was not sure of the first report of the chemical analyst, and therefore, they had sent muddamal samples again for chemical analysis. It is further submitted that percentage of morphine in both the reports is 0.9 percentage and 0.86 percentage are at variance. That, this report itself destroys the Page 8 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT report of chemical analysis and creates serious doubts as to sealing procedure, breaking the seals. That, there was no evidence with the prosecution to connect that who planted the Opium and "material procured by the prosecution was the same material who planted in room No. 305. That, previous statement of Pravinbhai Hiralalbhai recorded on 02.05.1996, statement of Ramanbhai Purshottam Patel recorded on 04.05.1996 were not considered by the by learned Special Judge, wherein it was never stated who planted contraband article opium at Hotel Lajwanti as well as there is no direct material to connect the so called contraband material procured by the prosecution from Malabhai. That, in absence of said important evidence, applicant cannot be prosecuted for the offence punishable under the NDPS Act. That, prosecution has not even made any attempt to get the photograph of Malabhai identified in presence of panchas through the witness Manu Kodarvi, who had accompanied the said person to room no. 305 at Hotel Lajwanti on 29.04.1996 and also not got the sketch of the said person prepared as to how the person looked like. That, statement of Manubhai Kodarvi in two different proceedings is completely contrary to the statement. Page 9 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT That, in a charge sheet filed before the Special Judge, NDPS at Jodhpur in connection with CR No. 403 of 1996 registered with Kotwali Police Station Pali, so called witnesses in CR No. 216 of 1996 Shri Pravinbhai Hiralalbhai, Ramanbhai Purshottam Patel, Hanzaribhai Motibhai Solanki and Becharbhai Meghabhai Uplana are one of the accused, who placed the opinion in the aforesaid hotel. That, without following the procedure under Section 64 of the NDPS Act, Investigating Officer could not have cited the said accused persons as witnesses in the present crime when CR No. 403 of 1996 was registered at Kotwali Police Station, Pali was based on the same incident which is subject matter of CR No. 216 of 1996 registered with Palanpur City Police Station. That, in absence of any independent witnesses or any material, no charge under Section 17, 18, 21, 27-A, 29, 58(1) and 58(2) of NDPS Act can be framed against the present applicant. It is further submitted that none of the provisions of Section 116, 167, 204, 343, 465, 471 read with Sec. 120-B, 34 of Indian Penal Code can ever be invoked against the present applicant. In support of his arguments, learned advocate for the applicant has placed reliance upon the following judgments. Page 10 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT
(1) AIR 1979 SC 1791 (2) AIR 1963 SC 849 (3) (2019) 7 SCC 148 (4) (1977) 2 SCC 699
5. It is further submitted that for the same incident in question, applicant is prosecuted to face trial in respect of FIR being CR No. 216/1996 registered at Palanpur City Police Station. It is further submitted that it is completely against the settled legal position of law as indicated in Ram Lal Narag v. State (Delhi Admn) reported in AIR 1979 SC 1791. In support of his arguments, learned advocate for the applicant has further placed reliance upon the judgments reported in (2019) 7 SCC 148; (1977) 2 SCC 699 and ultimately requested to quash and set aside the order dated 23.08.2019 below Exh. 11 in Special NDPS Case No. 3 of 2018 pending before the court of learned Special Judge, Banaskantha at Palanpur.
6. Learned Public Prosecutor Mr. Mitesh Amin has strongly opposed the arguments advanced by learned advocate for the applicant and argued that framing of charge against the applicant and other is consonance with Section 227 and 228 of Cr.PC. He also submitted that at the stage of framing of Page 11 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT charges, the material on record is not to be examined meticulously. As per his submission, prima facie finding of sufficient material showing grave suspect is sufficient to frame the charge. That learned Special Judge has not acceded in making observation that it would not effect the merits of the case. He further contended that it is not the case for interference by this Court as no prejudice would be exceeded to the applicant and he has to face the trial. It is further submitted that there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceedings against the applicant. It is further submitted that presumption of the guilt of the accused which is to be drawn at the initial stage as only for the purpose of deciding the prima facie whether the court should proceed with the trial or not. That, learned Special Judge, Banaskantha at Palanpur while considering Section 227 and 228 of the CrPC has rightly considered the material and documents on record and found that at their face value disclosed the existence of all the ingredients constituting the alleged offence. It is further Page 12 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT submitted that for this limited purpose shifting evidence as it cannot be accepted even at their initial stage to accept it.
7. It is further submitted that in light of the material, which are available before the Court, without testing the same at the trial, applicant cannot be discharged only on the ground of appeal. That, materials of the prosecution have to be tested against the accused only at the trial. That, the observations of the learned Special Judge while rejecting the application for discharge of the applicant are based on the materials placed and in any event, it would not effect the merits of the applicant in the ultimate trial.
8. Learned Public Prosecutor has further argued that it is for the learned Special Judge to evaluate all the materials including statements of the prosecution witnesses such as Pravinbhai Hiralalbhai, Ramanbhai Purshottam Patel, Hanzaribhai Motibhai Solanki and Becharbhai Meghabhai Uplana. Learned Public Prosecutor has referred the order passed by Hon'ble Apex Court in SLP No. 2919 of 2019 arising out of the judgment and order dated 7th March 2019 in Criminal Misc. Application No. 23368 of 2018 passed by this Court and argued that Hon'ble Apex court perused the Page 13 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT relevant documents and SLP preferred by the present applicant was disposed of with a liberty to approach the court if the trial does not commence within a period of six months. Thereafter, referring the order of the Hon'ble Apex Court in SLP (Criminal) No. 4993 of 2019, it was submitted that present applicant preferred aforesaid SLP against the judgment and order dated 16th April 2019 passed in Special Criminal Application No. 4115 of 2019 by this Court. That, Hon'ble Apex Court disposed of aforesaid matter with a direction that trial court would not delay the case any more and in a manner whatsoever and not to entertain unnecessary application delaying the decision of the case and trial be concluded positively by 20th June 2019.
9. It is further submitted by learned Public Prosecutor that applicant has also preferred one Criminal Misc. Application (Recall) No. 1 of 2020 in Special Criminal Application No. 680 of 2019 which was also dismissed by this Court by an order dated 17th January 2020 with the observation that there is no good reason for this Court to once again look into the order on any of the grounds, which have been put forward. In fact, there was no suppression worth the name of any material fact. Page 14 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT This Court is of the view that the applicant continues to keep on thwarting the due process of law by adopting such dilatory tactics, then some stern steps may have to be taken against the applicant in accordance with law.
That the delay application i.e., Criminal Misc. Application No. 23368 of 2018 in the same offence ie., CR No. 216 of 1996 registered with Palanpur Police Station was rejected by this Court on 7th March 2019. Learned Public Prosecutor has placed reliance upon judgment reported in 2012(9) SC 460.
10. Learned Public Prosecutor has further relied upon the order passed by this Court in Criminal Misc. Application No. 22998 of 2019 dated 31.01.2020 and argued that successive application seeking regular bail in connection with the offence registered as Prohibition CR No. I-216 of 1996 with Palanpur City Police Station under Sections 120B, 119, 116, 167, 182, 193, 195, 199, 200, 201, 253 of the Indian Penal Code 1860 and Sections 17, 58(2), 59(1)(b)of the Narcotic Drugs and Psychotropic Substances Act 1985 which culminated into Special NDPS Case No. 3 of 2018, was rejected. Learned Public Prosecutor has submitted that there is Page 15 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT sufficient material on record to show the exist of a grave suspicious against the present applicant involving him in procuring the opium for the purpose of executing criminal conspiracy. That, there are witnesses, who have clearly stated in uncertain terms of the role of the applicant in procurement and also of its use of planting the same at Hotel Lajwanti. That, learned Sessions Judge has rightly dismissed the prayer of discharging the present applicant from the offence. Learned Public Prosecutor has further submitted that however, specific direction was issued by this court to cooperate with the proceedings before the Court, applicant is misusing the process of law under the pretext that the trial is not completed by moving one application after another. That, no interference is called for by this court and hence, it was requested by learned Public Prosecutor to dismiss present revision application. In support of his arguments, learned Public Prosecutor has relied upon the following judgments. (1) Judgment of Hon'ble Supreme Court in Criminal Appeal No. 1820 of 2019 dated 3rd December 2019 in a matter of Bhawanbhai v. Ghanshyam and others.
(2) 2012(9) SCC 460 in the matter of Amit Kapoor v. Page 16 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT
Rameshchandra.
(3) 2010 9 SCC page No. 368 in the matter of Sajjankumar v. Central Bureau of Investigation.
11. Learned advocate for the applicant has distinguished the judgment relied upon by respondent-prosecution and further submitted that the observation made by this Court in Criminal Misc. Application No. 22998 of 2019 cannot be considered by this Court. In support of his arguments, he has referred Section 42 to 49 of the Indian Evidence Act.
12. Learned advocate for the applicant reiterated his arguments for quashing and setting aside the impugned order passed by the learned Sessions Judge and allow this revision application.
13. Having considered the facts of the case and submissions made by learned advocate for the applicant and learned Public Prosecutor for the respondent-State, it appears that almost after passing order of dismissal of SLP against the order dated 3rd April 2018 and after filing of charge sheet, present applicant moved Criminal Misc. Application (Recall) No. 01 of 2020 in Special Criminal Application No. 680 of 1999 with a prayer to recall of the very same order dated 3 rd April 2018, Page 17 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT against which, SLP was dismissed. In the said recall application, present applicant again reiterated the same grounds which are raised in the present proceedings. The recall application preferred by the present applicant also came to be dismissed by the co-ordinate bench of this Court (Coram:
Hon'ble Mr. Justice J. B. Pardiwala, J.) by detailed judgment and dismissed the recall application being No. 1 of 2020 in Criminal Misc. Application No. 680 of 1999 on 17.01.2020.
Following findings were assigned while dismissing the said application:
27. I have no hesitation in observing that the filing of the applications of the present type is nothing but last ditched efforts on the part of the applicant to see that the trial does not proceed further. Such attempts needs to be condemned in strong words.
Having regard to the developments that have taken place after this Court passed the order, it is too much on the part of the applicant to come to this Court and pray that the order be recalled, and that too, on flimsy grounds as urged. This litigation is now almost more than two decades old. After due consideration of all the relevant aspects of the matter and materials on record, this Court thought fit to pass appropriate directions for the constitution of a Special Investigation Team, so that such team can carry out effective investigation of the F.I.R. In the order passed by this Court, a fine distinction has been drawn between the prosecution instituted within the State of Gujarat and the proceedings, which are pending in the State of Rajasthan. The Page 18 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT filing of the 'A' summary report or any other report can hardly be a ground to preclude this Court from exercising its extraordinary jurisdiction under Article 226 of the Constitution of India, if the occasion demands in the interest of justice. It is too much on the part of the applicant to say that as the investigation was completed and an 'A' summary report was filed, this Court ought not to have entertained the two writ-applications and pass an order for the constitution of a Special Investigation Team. The facts of this case need not be repeated. The more they are recalled, it is more painful. Unfortunately, the police officers are involved in this crime along with a former Judge of this High Court.
28. As on date, there is a charge-sheet on record. I would not like to go into the evidence forming part of the charge-sheet. It is now for the trial Court to proceed with the recording of the evidence. The guilt or the innocence of the accused persons will be now determined by the trial Court on conclusion of the trial.
33. I am constrained to observe that if the applicant continues to keep on thwarting the due process of law by adopting such dilatory tactics, then some stern steps may have to be taken against the applicant in accordance with law. No wonder a Division Bench of this Court in the case of the very same applicant while deciding the Criminal Misc. Application (for suspension of sentence) No.1 of 2019 in Criminal Appeal No.1492 of 2019 had to observe as under:-
".....Having regard to the said orders, it appears that the applicant has scant respect for the Courts and is in the habit of misusing the process of law and scandalizing the Court...."
14. It is undisputed fact that after directing the investigation by the coordinate bench of this Court dated 3 rd April 2018, the Page 19 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT applicant was arrested and bail application preferred by the present applicant was rejected by the learned Sessions Court considering the seriousness of the offence and lead role attributed by the applicant. Present applicant also preferred the regular bail application before this Court, wherein also he repeated the said grounds, which was rejected. This Court (Coram: Hon'ble Ms. Justice Sonia Gokani, J.) in Criminal Misc. Application No. 22998 of 2019, while deciding the bail vide detailed judgment, has observed as under:
7.3 This Court cannot be oblivious of the fact that on account of the pending proceedings and the stay granted against the investigation, the investigation in the case registered with Palanpur City Police Station, Pali, was not possible, until the Coordinate Bench of this Court gave a direction to constitute SIT.
Therefore, when these details have emerged on record at present, it is, eventually, for the prosecution to prove and establish the allegations levelled against the present applicant and others, where credentials of the witnesses shall also be questioned and verified. This Court also cannot be unmindful of the fact that this is a successive application for regular bail, where, the detailed analysis of the evidence is impermissible nor is this Court permitted to weigh the evidence, which have come to fore to enter into the detailed analysis and to conclude on anything. It is the prima facie case, which requries the consideration. Moreover, this Court also cannot be oblivious of the fact that the present applicant was heading the entire district being Superintendent of Page 20 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT Police and every crime under the NDPS Act in the district was being put to his notice.
7.4 This is a matter, where, there is a serious involvement of a lawyer in an NDPS case. The recent investigation carried out by the IO and earlier also, in the investigation in the case registered with Kotwali Police Station, Pali, much has been stated in relation to the procurement and plantation of the narcotic substance at Lajwanti Hotel. This Court requires to state, at this stage, that the challenge to the subsequent investigation, since, has also failed in the form of application for review / recall, the material, which has been adduced by the SIT, prima facie, reveal both the procurement so also the plantation of the narcotic substance through different witnesses. Therefore, it will not be possible for this Court to keep aside those materials and hold that this Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence to enlarge him on bail. The limitations under Section 37 of the NDPS Act on granting bail are in relation to the time-limit given under the Code or any other law for the time being in force for granting bail.
7.5 It is quite clear from the language of Section 37 of the NDPS Act that the Court needs to, firstly, be satisfied that there are reasonable grounds that the applicant-accused is not guilty of the offence and secondly, that he is not likely to commit any such offence, while on bail. Assuming, without accepting, all the submissions, in relation to the procurement and plantation of narcotic substance made before this Court, are available for the purpose of putting forth before the trial Court, at the time of trial, it will not be possible for this Court to hold at this stage of being satisfied and to believe, in positive terms, that exercise of the powers of grant of regular bail are needed. Even if, the amendment in Section 37 of the NDPS Act came into force with Page 21 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT effect from 02.01.2001, the fact remains that the applicant's arrest was on 05.01.1998.
15. It appears that applicant has not joined the victim in the captioned petition though he is one of the party and has also opposed the discharge application by filing detailed affidavit before the Sessions Court. That, coordinate bench of this Court (Coram: Hon'ble Mr. Justice N. M. Mathur, J.) has observed as under:
"It is a case of deep rooted conspiracy wherein a false case has been concocted under the NDPS Act implicating the complainant to hand over the vacant possession of the shop. Phootarmal with the active abatement of the alleged conspirator in prosecution of common design and object of the conspiracy, got a false case being C.R. No.216/96 registered at Palanpur police station against the complainant in serious offence of NDPS Act. It is a known fact that the bail of an accused in a case under NDPS Act is almost impossible. A Senior police officer of the State of Gujarat and a Judge holding a high Constitutional office are the alleged co-conspirators. Thus, the continuing of investigation of CR No.216/96 is nothing but a farce and it has been utilized only as a protecting umbrella to the accused persons in FIR Case No.403/96 registered at Pali."
"On the other hand, in C.R. No. 216/96, police station Palanpur, nothing has been done after 14.5.96 except obtaining of computer photographs. It is their say that on that basis they are searching the man who gave false information Page 22 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT on telephone on 30.5.96. I do not understand when admittedly nobody has seen the said informant as information was given on telephone, how the computer photograph of the culprit could be sketched. I have no hesitation in saying that the so-
called investigation in C.R.No.216/96 is nothing but a farce."
"As the offence registered being CR No. 216 of 1996 with Palanpur City Police Station in respect of planting/recovering of one and half kilogram of narcotic drugs based upon which, Sumersinh was falsely arrested and was coerced to vacate the property in three days while his custody is concerned, this Court in the subsequent judgment dated 4th December 1997, was pleased to record as under:"
I have perused the police diary of C.R. No.216/96. Nothing substantial has been done in this case. Mr D N Patel, learned APP submitted that the police is in search of the person who gave false information to the police from Pali. For this two computer photographs have been prepared. I cannot understand when even according to the police the said information was received on telephone how and what basis a computer photograph could be prepared. There is no progress beyond this, in this case.
16. As per the prosecution case, the applicant who is the IPS Officer is alleged to have planted the Narcotic drugs in Page 23 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT a room in Hotel Lajwanti under his jurisdiction wherein the room was booked at his behest in the name of an advocate in Palanpur, Gujarat. The narcotic drug was planted/recovered on the basis of anonymous telephonic information received in the Police Control room of the applicant, based upon which, CR No. 216 of 1996 was registered at Palanpur City Police Station under Sections 120B, 119, 116, 167, 182, 193, 195, 199, 200, 201, 253 of the Indian Penal Code 1860 and Sections 17, 58(2), 59(1)(b)of the Narcotic Drugs and Psychotropic Substances Act 1985 which culminated into Special NDPS Case No. 3 of 2018 ie., the present case.
17. Relying upon the recovery made, Sumersingh Rajpurohit, as an advocate was alleged to have been falsely arrested by the applicant and his personnels and the property occupied by the said Sumersingh got vacated on the coercion during the custody of him. After vacating of the property, immediately a report under Section 169 was filed at the instance of the present applicant and the said Sumersingh, an advocate was released on the very next date.
18. The facts which are not in dispute can be summerized as under:
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1. Previously said offence pertaining to the planting/recovering of 1.5 kgs narcotic drug at Hotel Lawanti at Palanpur City, State of Gujarat, the intimation of narcotic drugs being available in the said hotel was said to have been received by the control room of Palanpur District Police working under the applicant through anonymous caller.
2. The said room in the Hotel Lajwanti was booked in the name of one advocate Mr. Sumer Singh Rajpurohit.
The police personnel working under the applicant recovered the narcotic drugs from the empty room.
3. Based upon the said planting/recovering of 1.5 kg narcotic drugs from the Hotel Lajwanti of Palanpur, said advocate (Sumersingh Rajpurohit), who is not named in the present proceedings, was stated to have been abducted in the night from his resident.
4. As observed by this Court, in the judgment and order dated 4th December 1997, after arrest of the said victim-advocate, a property occupied by him was vacated under the pressure of his alleged implication with the narcotic drug found in the hotel Lajwanti. Thereafter, Page 25 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT Sumersingh as recorded by the court in the judgment dated 4th December 1997, a written document was executed for vacating the said property while Sumersingh Rajpurohit was still in police custody of the Palanpur Police under the control of present applicant. After the said advocate vacated the property, Palanpur Police released him from jail in the said Narcotics Case.
5. In fact, within three days of remaining custody by Shri Sumersingh Rajpurohit, said property was vacated by his brother and on such vacating of the property, Palanpur Police filed a report under Section 169 of Cr.PC before the court stating that person occupying the room in hotel Lajwanti was not Sumersingh Rajpurohit and that he may be released.
6. Though, offence was registered with Palanpur City Police Station being CR No. I-216 of 1996 (present offence) was the crucial for investigation,no investigation was proceeded.
19. It also appears from the record that co-accused Shri RR Jain, a former Judge of this Court (passed away) filed a quashing petition before the High Court of Rajasthan. Another Page 26 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT similar petition was filed in the name of State of Gujarat before the High Court of Rajasthan in connection with CR No. 403 of 1996 and Hon'ble Rajasthan High Court (Coram : Hon'ble Mr. Justice B. S. Chauhan, J.; as his Lordship the then) had dismissed both the petitions by detailed speaking order interalia holding that no sanction was required under Section 197 Cr.PC nor Section 101 of the Bombay Police Act. In the aforesaid judgment also, Hon'ble Court dealt with other factual and legal contentions. It is pertinent to note that Special (Criminal) No. 1931 of 2000 (which was subsequently converted in to Criminal Appeal No. 1031 of 2002) was affirmed by the present applicant, wherein contrary stand was taken then the stand, taken in the present proceedings. The memo of SLP mentions as under which is affirmed by the present applicant.
"Because the Hon'ble High Court failed to appreciate that on a conjoint reading of Section 36 A of the NDPS Act, Section 156 and Section 190 of the Cr.P.C., it is clear that the only court competent to deal with the complaint was the Special Court NDPS Offences Palanpur, Gujarat. The CJM, Pali being not competent to take cognizance of the offence under the NDPS Act committed at Palanpur, should not have acted upon the complaint except as provided in Section 201(a) of the Cr.P.C. which lays down the Page 27 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT procedure to be followed by a Magistrate not competent to take cognizance of the offences alleged in the complaint. That complaint cannot be mechanically forwarded for investigation (AIR 1996 SC 149 Para 55). In the present case a bare reading of the complaint clearly reveals that it relates to offences under the NDPS Act committed at Palanpur and hence inquirable and triable by the Special Court at Palanpur alone and not by the CJM Pali. The Section 36 A(2) of the NDPS Act has an overriding effect over Section 178 of Cr.P.C. and CJM Pali had no jurisdiction to entertain the complaint. The only course open to him was to return the complaint for presentation before a competent court as per the provisions of Section 201(a) of the Cr.P.C. The entire proceedings are therefore ab-initio without jurisdiction and vitiated.
20. It appears that after completing the investigation in the present case, both the aforesaid Criminal Appeal numbers being No. 1030/2002 and 1031 of 2002 were disposed of by the Hon'ble Supreme Court. It would be relevant to point out the detail chronology given by the applicant, advocate Sumersingh has filed his detailed affidavit before the Special Court in the present case being Special NDPS Case No. 3 of 2018 while opposing the application for discharge preferred by the present applicant. The said details were given in para 23 to 36 of his reply. It reflects that applicant himself or some of the co-accused has kept the proceedings in tendum to Page 28 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT ensure that investigation is frozen successfully till 2018. It also appears from the record that other two co-accused in the same offence filed Special Criminal Application No. 1079 of 1998 and Special Criminal Application No. 680 of 1999 to ensure that no investigation was taken place in connection with CR No. 216 of 1996 while praying for investigation by CBI.
Investigation remained stayed in the said two petitions till it came up for hearing after the decade in the year 2018. The coordinate bench of this Court (Coram: Hon'ble Mr. Justice J.
B. Pardiwala, J) vide order dated 3rd April 2018, passed the following directions as under:
"53. In the result, both the writ-applications are disposed of with a direction that the investigation of the C.R. No.216/96 registered with the Palanpur City Police Station be conducted by a Special Investigation Team constituted from out of the CID (Crime), State of Gujarat, which is a central agency of crime detection in the State of Gujarat.
54. The Special Investigation Team shall consists of the officers of not below the rank of the Superintendent of Police and shall have an officer of the level of the Deputy Inspector General of Police as its head."
21. Thereafter, SIT was constituted and investigation was commenced wherein present applicant came to be arrested. Page 29 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT Learned Magistrate was pleased to refuse grant of remand to the applicant and the co-accused.
22. The State of Gujarat preferred Criminal Revision Application No. 1088 of 2018 and another coordinate bench of this Court (Hon'ble Mr. Justice R. P. Dholaria, J.) while disposing the aforesaid revision application vide judgment dated 11th September 2018 observed that :
This Court also noticed in the present proceedings that both the incidents are different, both the crime registers are different and both the complainants are also different and in that view of the matter, since the complainants are different, the argument advanced by Mr. Syed, learned advocate that the case at Rajasthan and the case at Palanpur Police Station, both are the same is not accepted and even that was not the case of the present applicant upto 3.4.2018 as the present respondent No.1 and Mr.R.R.Jain sought direction of investigation into the crime register No.216 of 1996 at Palanpur Police Station is an afterthought argument and not accepted on the factual scenario, for the reasons noted above.
23. For the reasons noted above, if we consider the order dated 11th September 2018, as referred above, present applicant had also raised the contentions in respect of the similar offence was dealt with by this Court and was rejected accordingly on merits.
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24. The present applicant moved before the Hon'ble Supreme Court challenging the (A) order dated 3 rd April 2018 passed by this Court in Special Criminal Application No. 680 of 1999(as referred above) directing the investigation of present offence by SIT and (B) order dated 11 th September 2018 in Criminal Revision Application No. 1088 of 2018, the applicant also filed a petition under Article 32 of the Constitution of India, being Writ Petition(Criminal) No. 265 of 2018 subsequently on the same ground, which were repeatedly raised before this Court also and are again raised in the present proceedings. From the order dated 7th March 2019 passed by this Court (Coram: Hon'ble Ms. Justice Sonia Gokani, J.) in Criminal Misc. Application No. 23368 of 2018, this Court has observed following issues:
"A. Whether the impugned judgment/order is sustainable in law considering the fact that material facts have been suppressed before the High Court, more particularly the order of this Hon'ble Court staying the investigation into the same incident/occurrence.
B. Whether the High Court has erred by not observing that the effect of the impugned order/judgment shall be that the accused will be subjected to second investigation of the same incident giving rise to same offences that has already been investigated, charge-sheeted and further proceedings are stayed by this Hon'ble Court.
C. Whether the High Court has erred in not appreciating that it is the same Page 31 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT incident/occurrence which is the subject matter of the investigation carried out in Rajasthan and the investigation that is to be carried out vis-a-vis the impugned judgment/order.
D. Whether the High Court has erred in not appreciating that all evidence, purportedly to be considered as part of the investigation initiated pursuant to the impugned order has already been considered and taken into account by the investigation carried out in Rajasthan and on the same set of evidence.
E. Whether the High Court has erred in not appreciating the law laid down by this Hon'ble Court with respect to multiple investigations and the effect thereof on the fundamental rights of accused persons, more particularly in the case of Amit Anilchandra Shah v. Central Bureau of Investigation and Anr. (2013) 6 SCC 348.
F. Whether the High Court has erred in not appreciating that the impugned judgment/order gravely prejudices the fundamental rights of the Petitioner enshrined under Articles 14 20 and 21 of the Constitution of India by exposing the Petitioner to multiple investigations into the same incident/occurrence.
G. Whether the High Court has erred by passing the impugned judgment/order without hearing the Petitioner herein even though the impugned judgment/order gravely affects the fundamental rights of the Petitioner herein.
H. Whether the High Court ought to have directed an investigation which takes a case from a post-cognizance stage to a pre-cognizance stage."
25. Hon'ble Supreme Court did not interfere in any of these three petitions being SLP (Criminal) Diary No. 35136 of 2019, 35237 of 2018 and W.P. (Cri.) No. 265 of 2018. Present applicant thereafter, moved before the trial Court for granting Page 32 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT regular bail and having failed, moved before this court by preferring Criminal Misc. Application No. 23368/2018. Coordinate bench of this Court again considered the question on the same case to the extent it was necessary for consideration of bail and dismissed the bail application by detailed speaking judgment running in 55 pages considering all the averments of the applicant by an order dated 7 th March 2019 directing the trial Court to complete the trial within six months as stated above.
26. It is the case of the prosecution that the applicant is in habit of filing frequent proceedings and delaying final conclusion of the trial since the year 1996 onwards. It is the further case of the prosecution that after the incident, applicant once again resorted several tactics for delaying the trial. Though, the order dated 3rd April 2018 passed by coordinate bench of this Court (Coram: Hon'ble Mr. Justice J.B. Pardiwala, J.) in Special Criminal Application No. 680 of 1999 was rejected by the Hon'ble Supreme Court, applicant moved an application prayed for recall of the said order dated 3 rd April 2018, this Court again (Coram: Hon'ble Mr. Justice J.B. Pardiwala, J.) vide detailed judgment dated 17 th January 2020, Page 33 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT rejected the said recall application with strictures.
27. With the backgrounds of the aforesaid facts present proceedings are required to be examined so as to decide as to whether the jurisdiction exercised by the Sessions Court in rejecting the discharge application of the applicant under Sections 227 of Cr.PC required to be interfered with the exercise of the revisional jurisdiction of this Court.
28. On perusal of the judgments cited by the parties, it is apparent that the law laid down by Hon'ble the Supreme Court is to know of the circumstances and within which parameters the jurisdiction under Section 227 of the Code is to be invoked are as under:
1. At the time of framing of charges and considering an application for discharge only prima facie case is to be seen. Whether the case is beyond reasonable doubt or is not to be seen at this stage.
2. While evaluating the material of investigation at the stage of Section 227 of CrPC strict standard of proof is not required and only prima facie case against the accused is to be seen to see whether it is necessary to put the accused to the trial.Page 34 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT
3. The satisfaction of the court in relation to the existence of constituent ingredients of the offences alleged and the facts leading to these offences is required to be examined not for the purpose of recording either acquittal or conviction.
4. At the stage of framing of charge under Section 228 of the Code, or while considering the discharge application filed under Section 227 of the Code, it is not for the Magistrate or the judge concerned to analyze all the materials including pros and cons reliability or acceptability of witnesses etc. It is at the trial during which, the judge concerned has to appreciate their evidentiary value, credibility or otherwise of the witnesses and evidence veracity of various documents and is free to take decision on way or the other at the time of trial. Having examined the scope and ambit of the two offences registered and the material of investigation collected and placed before this Court as well as after careful examining detailed submission of both the sides and scope of the court's inquiry, at the stage of deciding application under Section 227 of the CrPC, this Court Page 35 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT dealt with this issue as under:
The findings at present would require to be recorded for the purpose of the present application for discharge. It may not be advisable to dwell much into the contentions raised by both the sides on the evidence and material on record as the case may have an impact on the trial. So far as the reliance placed upon the various statements recorded during the investigation and submissions made based upon them is concerned, this Court has noticed that in para 14 to 16, Special Court has elaborately dealt with the statements of witnesses. In fact, impugned order reproduced the relevant part of the statement in verbatim and analysis the statement made.
29. After having gone through all the statements, Special Court has raised a conclusion that all the submissions based upon the statements of witnesses can be decided only during the course of trial. However, this court has considered all the statements once again though for limited purpose of Section 227 of CrPC. After examining the statements of the wittinesses, this Court is of the considered view that Special Court has rightly exercised its jurisdiction. In veracity of the statement Page 36 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT truth-worthiness of the contents of the statements of the witnesses can never be gone into any proceedings under Section 227 of CrPC, more particularly, when it is apparent opinion that the same needs elaborate trial.
30. Special Court has not committed any jurisdictional error in recording findings that it would away the trial to deal with this contentions and did not find it appropriate to discharge the accused based upon the said submissions.
31. Learned advocate for the applicant has made elaborate submissions based upon the contents of "opium derivatives" in 1.5 kg of morphine substance recovered. The submission was made on the basis of the FSL report and the contents of Morphine, as per the case of the applicant, one thing is clear even as per the FSL report, substance recovered is the narcotic substance. Once it is admitted that 1.5 kg of narcotic substance is recovered, rest of the contentions may not be gone into at this stage.
32. Relying upon the judgment in case of Amarsingh Ramjibhai Barot v. State of Gujarat, reported in 2005(7) SCC- 550, question of "small quality" vis-a-vis "commercial quantity" was raised. It appears that this aspect was also urged Page 37 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT before the coordinate bench and it was dealt with in its judgment dated 7th March 2019 against the applicant which was not interfered with by Hon'ble Supreme Court. The offence undisputedly took place in the year 1996. The amending Act came into force on 02.10.2001. By reason of this amendment, "small quantity" and "commercial quantity" are defined with Act of 2001 coming into force, Notification S.O.1055 (E) dated 19.10.2001 came to be issued in exercise of powers conferred by Clauses (viia) & (xxiiia) of Section 2 of NDPS Act and the Central Government specified as to what would be small quantity and commercial quantity being 5 grams and 250 grams for opium derivatives.
33. Hon'ble Supreme Court, in the case of Jawahar Singh Bhagatji v. State of GNCT of Delhi, reported in (2009) 6 SCC 490, has observed that Act 9 of 2001 has not brought about any significant changes in the Parent Act and that the Parliament has given effect to the said Act from 2 nd October 2001. It is categorically held that amending Act cannot be said to be have any retrospective effect. In fact proviso of Section 41(1) of the amending Act provides that the said amendment shall have no effect to the pending matters. Considering the Page 38 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT quality involved and provisions for rigorous imprisonment enshrined in the Act cannot be said that a good ground is made out for discharge.
34. Learned advocate for the applicant has heavily relied upon the judgment in case of " Ram Lal Narang v. State (Delhi Admn.), reported in AIR 1979 SC 1791, as discussed herein above, applicant is signatory to the affidavit in Criminal Appeal No. 1031 of 2002 took a clear different stand. Now, he is taking a valte face. Even if this kind of repercatino of the applicant is ignored then also having gone through the record of both the proceedings, this Court is of the considered opinion that both the proceedings are separate and distinct and the arguments of learned advocate for the applicant based upon consequent theory or based upon the judgment in case of Ram Lal Narang (Supra) have no substance and cannot be accepted.
35. Coordinate bench of this court has recorded earlier and is also satisfied that applicant delayed proceedings one after other and is successfully also not to proceed the investigation since the year 1996, in which the offences are of very serious in nature committed. 23 years have been passed. Present investigation could not be made however directions issued by Page 39 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT this Court in its order dated 3rd April 2018 which was challenged before the Hon'ble Supreme Court by the applicant, wherein he was not succeeded. Allegations made in the present case against the present applicant are of very serious in nature and one advocate, as alleged to have been coercived to vacate the premises itself, is the victim of the offence is trying to get the trial commenced since 23 years. Though, the proceedings have first commenced in Palanpur, State of Gujarat, as contemplated under Section 186(b) of the Code, nothing progressed since then and even after 23 years, the proceedings can reach up to the stage of framing of charges. It appears that one of the co-accused Shri IB Vyas has recorded his statement under Section 306 of Criminal Procedure Code. As the question is pending before the Special Court, it is advisable to dwell much into the same. However, this fact itself is enough to make out a case for trial and rejection of discharge application. As delivery of justice expeditiously part of article 21 of the Constitution of India and as delay of 23 years reflects very poorly on the system.
36. It is relevant to note that detailed fact was given by the victim in his affidavit dated 25th April 2019 vide Ex. 23 before Page 40 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT Special court while opposing the application Ex. 11, the said part of victim's affidavit is quoted hereunder verbatim:
"7. I state that the present applicant-accused has a long standing history of not only being involved in serious criminal offences but a startling and shocking history of misusing the process of law and judicial proceedings so as to ensure that no criminal proceedings proceeds further against him much less reaching the stage of either framing of charge or trial. The said details are given hereunder.
8. It is submitted that the applicant-accused has shown, since more than two decades, his manifest tendency to file various frivolous proceedings under his name, in the name of co-accused and/ or under his own influence. Adopting this process of abuse of process of law, the applicant-accused No.1 successfully ensures that no proceedings proceeds further against him in several criminal cases which he is facing right from the year 1989 till date as explained hereunder.
9. I state that this fact is very essential for deciding and rejecting the present application filed the applicant- accused as the offence in question is of the year 1996 and if the applicant-accused is permitted to filed such interim application, he would not he would never permit the trial to commence and would ensure that even after lapse of 22 years of the offence even the charges are not framed and trial does not commenced.
10. It is respectfully submitted that as I have suffered a lot from Sh. Sanjiv Bhatt, the applicant-accused No.1 and other co-accused, myself and the Pali Bar Association have kept a vigilant watch on various activities of Sh. Sanjiv Page 41 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT Bhatt. We have examined his past and present conduct in detail and have found the following:
a) Sh. Sanjiv Bhatt is a habitual criminal and is facing several criminal proceedings. Just to show the past antecedents of Sh. Sanjiv Bhatt, I am placing hereunder a chart showing various criminal proceedings which he is facing and his habit of abusing the process of law by filing vexatious proceedings. All these offences are registered decades back and Sh. Sanjiv Bhatt has, by abusing the process of law successfully ensured that no trial takes place.
b) The judicial orders passed by the Hon'ble High Court of Gujarat in one of the serious offences faced by Sh.
Sanjiv Bhatt under Section 302 of IPC would demonstrate as to the type of offender this Hon'ble Court is called upon to deal with and try to ensure justice.
1 FIR registered vide I-C.R. No.102/1990 at Jamjodhpur police station for the offence punishable under sections 302, 323, 506 (2), 114 of the Indian Penal Code. Pursuant to the said FIR and on conclusion of investigation, on 08.11.2012, the Court of Sessions Distrct: Jamnagar had framed charge aginst applicant- accused and 6 others in Sessions Case No.35 of 2001. 2 Private complaint filed by one Shri Mahesh Damji Chitroda in the Court of Learned judicial Magistrate First Class, Jamjodhpur bearing Inquiry Case No.22 of 1990 for the offence punishable under sections 325, 323, 114 and 34 of the IPC. The Court of learned Judicial Magistrate First Class, Jamjodhpur has issues process agianst applicant-accused and others for the said offence on 24.04.1992.
3 FIR registered vide I-C.R. No.149/2011 at Ghatlodiya police station by Karnsinh Dhanbahadursinh Pant for the offences punishable under sections 189,193, 195, 341, 342 of the Indian Penal Code.
Page 42 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT 4 FIR registered vide II-C.R. No.3148/2011 at Vastrapur police station for the offences punishable under section 66 of the Information Technology Act.
5 FIR registered at City "A" Division police staiton, Jamnagar vide M. Case No.2 of 2012 by Vijaysinhji Bhavansinhji Bhatti for the offence punishable under sections 341, 323, 326 and 504 of the Indian Penal Code.
6 FIR registered at Kotwali police station, Pali, State of Rajasthan vide I-C.R. No.403 of 1996 dated 18.11.1996 by Sumairsinh Rajpurohit which is at page 18 Annexure-B. 7 Proceedings of Criminal miscellaneous Application No.13128 of 1998 pending before the Court of learned 4th Additional Chief Judicial Magistrate, Porbandar
11. That the experience of the deponent [ who is a practicing lawyer] and all Members of the Pali Bar Association has been that the applicant-accused very effectively uses his political patronage which he manages to receive from time to time right from his initial career which started in 1989 for subvergence of criminal justice delivery system.
12. That the deponent is a lawyer by profession and being a victim of the crime committed by the applicant- accused and others, the deponent has kept track of happenings in various cases faced by the petitioner. As the deponent is interested to ensure that the applicant-accused do not indulge in protracting the trial, the deponent has gathered the following g facts showing flagrant abuse of law by the applicant-accused by filing various proceedings not only to thwart the present investigation but all criminal proceedings which he is facing.
So far as the present proceedings are concerned, the Page 43 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT applicant-accused managed to file several proceedings either in his own name, in the name of his co-accused and/or in the name of the State Government using his political patronage.
The deponent and Members of Pali Bar Association were always present with respect to all proceedings concerning C.R. No.403/96 as well as C.R. No.216/96 and cant state on Affidavit that all proceedings concerning the said two offences listed hereunder were either filed by the applicant-accused himself or by him in the name of his co- accused or the State Government using his political patronage.
During the hearing of all the proceedings, it is the applicant-accused who used to be present in court actively briefing the arguing counsel/s whether he himself was the applicant-accused or where the proceedings were filed in some other name.
The resultant effect of this tendency of the applicant- accused is shocking though the offences in question in both the distinct offences have admittedly taken place in the year 1996 and even shockingly charge are not framed after more than 22 years.
It may be very relevant to note that after rejection of bail application by this Hon'ble Court, solely with a view to protract the trial, the applicant-accused filed a "transfer application" seeking transfer of proceedings from the ten presiding judge only on the ground that "some of the judgment cited on his behalf in support of his bail are not considered properly".
Such a transfer application, for such a reason is enough to satisfy this Hon'ble Court that the applicant was ensuring that no further steps are taken by this Hon'ble Court in this case when offence is 22 years old. Similarly, in a serious offence of murder being faced by Page 44 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT the applicant-accused where two or three persons were killed, the offence has taken place in the year 1989 in spite of which the applicant-accused ensured that the trial is not over till date though a period of 29 years have elapsed from commission of the serious offences. The following list will satisfy this Hon'ble Court that unless the applicant- accused is denied bail and the trial is ordered to be expedited, the applicant-accused would never allow trial the trial to even commence.
HISTORY OF ABUSE OF LAW BY THE PETITIONER
1 SCR.A/422/1996 PRAVINSINGH ZALA FOR transfer of The High Court
case (in which observed that
sanjiv Bhatt is "this special
an accused) criminal
outside Jam- application is
Jodhpur on the wholly
ground that he misconceived
is afraid to go and the same is
to Jamjodhpur dismissed.
2. CRI.MA/5050/19 SANJIV Praying for Disposed of
97 RAJENDRABHAI Vs anticipatory
STATE OF GUJARAT bail
STATE OF RAJASTHAN
3. CRI.MA/7034/20 SANJIV Pertains to Withdrawn
19 RAJENDRABHAI NDPS offence
BHATT Vs in which Sanjiv
STATE OF GUJARAT Bhatt is an
STATE OF RAJASTHAN accused.
4. SCR.A/6/1998 SANJIV AGAINST THE Writ petition
RAJENDRABHAI POLICE DISMISSED by
BHATT INQUIRTY the Gujarat High
Vs ORDERED BY Court.
STATE OF GUJARAT CHIEF
STATE OF RAJASTHAN JUDICIAL
SUPERINTENDENT OF MAGISTRATE,
POLICE, CID,(C.B.) PALI (RAJ.) in
NDPS offence
in which Sanjiv
Bhatt is an
accused
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R/CR.RA/1650/2019 CAV JUDGMENT
5. LPA/906/1998 SANJIV Against the APPEAL
RAJENDRABHAI judgment and DISMISSED by
BHATT order passed by the Gujarat High
Vs the Gujarat Court
STATE OF GUJARAT High Court in
STATE OF RAJASTHAN SCR.A./6/199
SUPERINTENDENT OF 8 dismissing
POLICE, CID,(C.B.) the writ
petition.
6. LPA/102/1998 SANJIV RAJENDRA Pertains to APPEAL
BHATT NDPS offence DISMISSED by
Vs in which Sanjiv the Gujarat High
STATE OF GUJARAT Bhatt is an Court
SUMERSINH C accused
RAJPUROHIT POLICE
INSPECTOR
7. SCR.A/982/1998 SANJIV R BHATT Vs Pertains to WITHDRAWN
STATE OF GUJARAT NDPS offence
STATE OF RAJASTHAN in which Sanjiv
Bhatt is an
accused
8. CRI.MA/5959/19 SANJIV RA BHATT, IPS Re. offence PENDING
99 Vs under Section
JAMNAGAR STATE OF GUJARAT 302 of IP Code
MAHESH DAMJIBHAI in which Sanjiv
CHITRODA Bhatt is an
accused
9. SCR.A/971/2007 SANJIV R. BHATT, IPS Re. offence Disposed of by
JAMNAGAR Vs.10 under Section the High Court.
STATE OF GUJARAT 302 of IP Code
RAVJIBHAI HARJIBHAI in which Sanjiv
SINOJIA Bhatt is an
accused
10. SCR.A/973/2007 SANJIV R. BHATT, IPS Re. offence Disposed of by
JAMNAGAR vs. under Section the High Court.
STATE OF GUJARAT 302 of IP Code
CHETANKUMAR in which Sanjiv
PRATAPRAI JANI Bhatt is an
accused
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11. CRI.MA/15941/2 SANJIV BHATT, IPS FOR Application
010 vs. QUASHING DISMISSED the
PORBANDAR STATE OF GUJARAT AND SETTING High Court.
NARAN SUDHA@ ASIDE THE
NARAN JADAV CRIMINAL
CASE
NO.13129/19
98 PENDING
BEFOR THE
COURT OF LD.
JMFC,
PORBANDAR
reg. TORTURE
IN CUSTODY
in which Sanjiv
Bhatt is an
accused
12. SLP SANJIV BHATT, IPS From the SLP DISMISSED
(CRI)1699/2012 Vs. judgment an by the Supreme
STATE OF GUJARAT dorder dated Court.
NARAN SUDHA@ 14/12/2011
NARAN JADAV in CRI.MA
No.15941/201
0 of passed by
the High Court.
13. SCR.A./2101/20 SANJIV RAJENDRA FOR Petition
11 BHATT, IPS QUAHSING REJECTED by the
Vs. AND SETING High Court.
STATE OF GUJARAT ASIDE THE
AMRUTLAL ORDER PASSED
MADHAVJI IN CRIMINAL
VAISHNANI REVISION
APPLN. 21/96
PASSED BY
THE LD. ADDL
SESSIONS
JUDGE,
KHAMBHALIA,
Reg. offence
under Section
302 of IP Code
in which Sanjiv
Bhatt is an
accused.
14. SLP SANJIV RAJENDRA FROM THE Since Supreme
(CRI)/8360/201 BHATT JUDGMENT Court was not
1 Vs AND ORDER inclined, petition
STATE OF GUJARAT OF THE was
AMRUTLAL GUJARAT WITHDRAWN
MADHAVJI COURT IN by the petitioner
VAISHANANI SCR.A/2101/2
011
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15. SCR.A./3323/20 SANJIV RAJENDRA FROM THE Petition
11 BHATT SPEAKING DISMISSED by
Vs ORDER DATED the High Court.
STATE OF GUJARAT 09.12.2011 IN
AMRUTLAL SESSIONS CASE
MADHAVJI NO.35/2001.
VAISHANANI (Re. offence
under Section
302 of IP Code
in which Sanjiv
Bhatt is an
accused)
16. SLP SANJIV RAJENDRA FROM THE Since Supreme
(CRI)/355/2020 BHATT ORDER PASSED Court was not
Vs IN incline, petition
STATE OF GUJARAT SCR.A./3323/ was
AMRUTLAL 2011 BY THE WITHDRAWN
MADHAVJI HIGH COURT by the petitioner
VAISHANANI
17. CRI.MA/15438/2 SANJIV RAJENDRA FROM Disposed of
011 BHATT QUASHING
Vs AND SET
STATE OF GUJARAT ASIDING THE
N C PATEL COMPLAINT
BEING CRI.
CASE
No.12123/201
1 PENDING IN
THE Court of
Ld.3rd Addl
Chief Judicial
Magistrate,
Ahmedabad
(Rural)
18. CRI.RA/534/201 SANJIV R BHATT Vs Reg. offence Since the High
2 STATE OF GUJARAT under Section Court was not
AMRUTLAL 302 of IP code inclined, petition
MADHAVJI in which Sanjiv was
VAISHANANI Bhatt is an WITHDRAWN
accused. by the petitioner.
19. SCR.A./1337/20 SANJIV RAJENDRA Reg. offence of PENDING
12 BHATT, IPS TORTURE in
Vs which Sanjiv
STATE OF GUJARAT Bhatt is an
VIJAYSINH BHAVSINH accused.
BHATTI
Page 48 of 64
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R/CR.RA/1650/2019 CAV JUDGMENT
20 SCR.A./2086/20 SANJIV R BHATT FROM THE JUDGMENT
AND ORDER DATED
Dismissed with
12 Vs 30.06.2012 PASSED specific
STATE OF GUJARAT BY SESSIONS COURT
IN CRI.REVISION
observation and
AMRUTLAL APPLN. NO.20/2012. the note that it is MADHAVJI Matter pertains to an offence under Section a classic case of VAISHNANI 302 of IP Code in abuse of process which Sanjiv Bhatt is an accused.
scuttiling the
judicial process
for decades.
21. WP(PIL)/216/20 PUCL/SANJIV Sanjiv Bhatt, a High Court
12 RAJENDRA BHATT Vs. serving IPS disposed of the
STATE OF GUJARAT officer then, Writ Petition.
COMMISSIONER OF became a co-
INQUIRY petitioner with
one NGO.
22. SLP(C)/18794/2 PUCL/SANJIV FROM THE Supreme Court
013 RAJENDRA BHATT Vs. ABOVE DISMISSED
STATE OF GUJARAT JUDGMENT the petition
COMMISSIONER OF AND ORDER
INQUIRY PASSED IN
WP(PIL)/216/
2012 BY
GUJARAT
HIGH COURT
TENDENCY OF THE APPLICANT-ACCUSED TO ABUSSE JUDICIAL PROCEEDINGS IS JUDICIALLY RECOGNISED AND STRICTURES ARE PASSED
13. It is submitted that the applicant-accused is facing a serious charge of killing three persons in an offence which took place as back as in 1989. A private complaint was filed by the brother of one of the deceased on 11.12.1990. Shockingly, the applicant-accused has successfully misused the legal process and even the trial is yet not over after 29 years and even now the applicant-accused is before the High Court. In the said offence of murder, in spite of strictures passed by the Gujarat High Court on more than one occasion.
14. It is submitted that the applicant-accused could thwart any further progress for five years in the above murder case and it was only in 1992 that judicial Magistrate [First Class], Bhanwad, Gujarat issued process Page 49 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT against all accused persons including the a applicant- accused [who is the main accused].
15. It is submitted that the applicant-accused thereafter filed Special Cri. Application No.422/96 only with the sole intention of delaying the trial which came to be dismissed by this Hon'ble Court vide detailed judgment and order dated 24.06.1999 with strictures, the relevant extract of which is reproduced hereunder for your consideration:-
"3.The second ground which persuades me not to grant relief to the petitioner is that this criminal case has been filed in the year 1992 and though the petitioner has been summoned by non-bailable warrant he has not presented himself in the trial court. This special criminal application has been filed in the year 1996. So more than four years he has managed not to put appearance in the Court. That shows how the Police Officers are taking the Court process in the criminal cases. This conduct of the petitioner deserves to be deprecated and it reflects how the Police Officers are acting biasly and partially in their own case.
"4. The third ground for rejection of this special criminal application is that he has at no point of time felt aggrieved of the continuation of the criminal case against him at the said place. This criminal case has been filed in the year 1992 and he has only chosen to file this special criminal application only in the year 1996 before this Court."
"5. Taking into consideration the totality of the facts of this case, this special criminal application is wholly misconceived and the same is dismissed. Rule discharged. Interim relief granted by this Court stands vacated. The petitioner is directed to remain present personally in the Court of J.M.F.C. Bhanvad -Jamjodhpur in criminal case NO.93/92 on 16th August, 1999. If he is having the apprehension or endanger to his life he can approach the police department which shall take care of him. In case the petitioner does not put appearance before the Court on the said date, then this matter may be reported by the respondents to this Court by filing a simple note.
16. The said Criminal Case [pertaining to an offence which took place in 1989], however, remained pending since the petitioner managed to get one Revision Page 50 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT Application filed in the name of the State of Government in 1996 or thereabout using the political patronage he used to ensure every time.
17. That the deponent has gathered the details from the Gujarat High Court and found that similar proceedings filed at the behest of the applicant-accused to delay the very same trial being Cri. Misc. Application No.1799/96 and Spl. Cri. Application No.422/96 came to be dismissed by Gujarat High Court again by a detailed speaking judgment with stricutures in 2007, the relevant portion of which is reproduced hereunder for your kind perusal:
"5.1. Perusing the record of the earlier petition of the petitioner, it was seen that an affidavit-in reply was filed by the original complainant, respondent no.2 herein, to say that in the year 1995, similar applications under section 408 of the Code for transfer of all the cases were filed by all the three accused in the Court of learned Sessions Judge at Jamnagar which were dismissed by order dated 30.1.1996. It was also stated by him that, that petition was nothing but dilatory tactics by well educated police officers. It was also stated by him that the other accused were not joined as party-respondents so as to cause further delay, which may also lead to multiplicity of proceedings in the same matter.
6.The above record of facts clearly show that judicial proceedings and the provisions of the Criminal Procedure Code are prima facie, grossly abused by the petitioner and benefit thereof has also accrued to the other accused persons who are not joined as parties and, therefore, they are not before this Court. Significantly, the petitioner has not made the prayers and obtained the ex-parte interim relief for himself alone and practically succeeded in frustrating the original complaint. The main issue sought to be agitated in the present petition is that the prosecution of the original complaint requires sanction under section 197 of the Code. Thus, without disclosing the facts about the progress and proceedings during the period between the first order dated 21.12.1990 and the filing of the present petition in May 1996, the issue of requirement of sanction is sought to be agitated and the proceedings are delayed by ten more years. Upon calling for the record & proceedings of Criminal Case No.93 of 1992, it was found that stay of the proceedings was also operating by virtue of the interim orders made in Criminal Misc. Application No.5959 of 1999 and before that evidence of the complainant was partly recorded in the trial court without the issue of sanction being raised before the court.
7.The original complaint clearly alleges gross violation of human Page 51 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT rights of a citizen. The enquiry and prosecution prima facie appears to have been scuttled by a series of ingenious proceedings. Such obvious abuse of the process of law by the guardians of law themselves cannot be taken lightly and cannot be countenanced. Necessary orders for the grant of appropriate relief is required to be made after hearing all the parties concerned."
18. That the said order was challenged before the Hon'ble Supreme Court by way of filing SLP which is dismissed.
19. It is submitted that the petitioner, in spite of the above orders passed as back as in 2007 managed to delay the trial relying upon the State Government's Revision. Finding it difficult to delay it further, applicant-accused Sanjiv Bhatt filed a Review Application No.15.07.2011 [after 16 years] and also filed Special Criminal Application No.2101/2011 before Hon'ble Gujarat High Court.
20. That the said petition also came to be dismissed by this Hon'ble Gujarat High Court vide detailed judgment and order dated 10.10.2011 with strictures which are reproduced hereunder for ready reference :
"In other words, when the entire judicial process has approved of the decision rejecting the summary report filed by the police and cognizance for the alleged offence was taken by the Magistrate, the next step which should follow would be the trial by the competent court, and as could be seen from this, the said trial has not even started even after 21 years. Even though the order of the magistrate has been approved and accepted all throughout, it has remained ineffective for all practical purposes, and on top of that, when the revision application is withdrawn which would allow the trial to proceed, it is sought to be thwarted by the present petitioner in the name of bias and mala fides and rules of natural justice and/or taking away of accrued rights....."
52..... In the present case, the effect or the underlying object of this litigation or revision is that the trial of the sessions case may not proceed. The trial of Sessions Case No. 35 of 2001 for the alleged offence under sec. 302, etc. referring to the brutality of the police towards the victim - brother of the first informant/complainant based on the material and evidence which prima facie the Magistrate has found sufficient for the Page 52 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT purpose of committal, cannot be permitted to be thrown out or scuttled at the threshold without trial . If that is permitted, it would amount to subverting the judicial process of trial and the conclusion having been arrived without appreciation of evidence by the competent court at the trial. In other words, without appreciation of evidence and the material at the trial when the competent court of magistrate has found prima facie material to issue the process and the same order has remained valid and approved by the higher courts, it has been sought to be negated by such litigation.
21. It is submitted that one of the petition filed by the applicant-accused being Special Cri. Application No.3323/2011 came to be dismissed vide judgment and order dated 26.11.2011 again with strictures which are reproduced hereunder for ready reference :-
"Present case has a chequered history and number of proceedings have been initiated one after another since 1995-96 by which there is no progress in the trial with respect to the incident which has taken place in they 1990 and even after a period of 21 years, the case is at the stage of framing of the charge "Despite the fact that the petitioner preferred Revision Application before the Sessions Court against the order passed by the learned Magistrate challenging the order dated 20.12.1995 on 15.07.2011, the petitioner approached this Court by preferring Special Criminal Application No.2101/2011 challenging the order passed by the learned Sessions Court dated 15.07.2011 permitting the State to withdraw the Criminal Revision Application No.21/1996, without disclosing the fact that petitioner had already preferred Criminal Revision Application before the learned Sessions Court challenging an order passed by the learned Magistrate dated 20.12.1995 which was impugned in Criminal Revision Application No.21/1996."
"The learned advocate appearing on behalf of the original complainant pointed out the filing of the Revision Application by the petitioner and suppression of material fact before this Court at the time of hearing of Special Criminal Application No.2101/2011. However, despite the same the petitioner continued to proceed with the Special Criminal Application No.2101/2011 challenging the order passed by the learned Sessions Court permitting the State to withdraw the aforesaid Criminal Revision Application No.21/1996 and did not pursue the Criminal Revision Application and the delay condonation Page 53 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT application submitted by him before the learned Sessions Court."
"That thereafter Sessions Case No.35/2001 came up for hearing before the learned Sessions Court for framing of charge on 27.12.2011 and at that stage the learned advocate appearing on behalf of the petitioner submitted an application Exh.79 in Sessions Case No.35/2001 requesting deferment of framing of charge till his pending Criminal Revision Application along with application for condonation of delay is decided first before the Court proceeds with the framing of charge . At this stage, it is required to be noted that even on that day also, the petitioner did not make any effort to go on with the hearing of the Revision Application and the delay condonation application . The application Exh.79 in Sessions Case No.35/2001 came to be heard by the learned Sessions Court (trial Court), who by its impugned order dated 09.12.2011 has been pleased to dismiss the said application by observing that more than 15 years have been passed and still the charge is not framed and therefore, it will not be appropriate to defer the framing of the charge."
"On the contrary, to prefer the Special Criminal Application No.422/1996 despite filing the Revision Application, it appears the petitioner was not desirous of pursuing the said Revision Application and wanted to delay the trial and the framing of the charge on any ground."
"Nothing is on record that since July 2011, the petitioner submitted any application before the learned Revisional Court for early disposal of the Revision Application and delay condonation application and the Revisional Court has refused to hear the said Revision Application / delay condonation application. On the contrary, to prefer the Special Criminal Application No.422/1996 despite filing the Revision Application, it appears the petitioner was not desirous of pursuing the said Revision Application and wanted to delay the trial and the framing of the charge on any ground."
"It is very unfortunate that even after a period of 21 years of the alleged incident and after 16 years of the order passed by the learned Magistrate directing to issue process against the accused persons who are police officers, the case is still at the stage of framing of charge. It is required to be noted that the allegation against the accused persons who are police officers are with respect to violation of human rights also. The original complainant being the victim and brother of the deceased, who has died, has a legitimate expectation of getting justice at the earliest and to see to Page 54 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT it that accused persons who are found to be guilty are punished at the earliest. Any attempt on the part of the accused persons to delay the trial should be dealt with ironhandedly and is required to be viewed very seriously, more particularly, when the accused persons are police officers."
"It appears to the Court that this is one another attempt on the part of the petitioner to delay the trial and even framing of the charge."
22. That this, along with the fact that even in the present case the applicant-accused has been able to frustrate the course of justice by delaying it right from 1996 would show that it is the responsibility of this Hon'ble Court to ensure that the trial commences which is already expedited and directed to be concluded within six months.
Details of the previous frivolous proceedings filed by the applicant-accused with regard to the aforesaid two offences concerning the deponent.
23. It is submitted that the first attempt was made by the applicant-accused by filing the Special Criminal Application No.1302 of 1997 in the name of IB Vyas, a co accused and Special Criminal Application No.1309 of 1997 in the name of the State Government. Both the above referred Applications were filed invoking section 186 of the Code which is quoted hereunder:
Section 186. Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided.
1. If the Courts are subordinate to the same High Court, by that High Court.
2. If the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced, and thereupon all other proceedings in respect of that offence shall be discontinued.Page 55 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT
24. It is further relevant to note that while dealing with the said two petitions, Hon'ble Court High Court was conscious of -
a) Pendency of Cri. Case No.216/1996 pending in Palanpur and FIR Case No.403/1996 pending at Pali, Rajasthan;
b) The chargesheet is already filed by Rajasthan Police in FIR Case No.403/1996.
25. It is submitted that Para 6 of the said judgment of the Hon'ble High Court [Coram : Hon'ble Mr. Justice N.N. Mathur] makes it clear that it was the case of Palanpur police that as a part of same conspiracy someone has entered the name of Sh. Sumer Singh in the Hotel register, planting of narcotics in the room of the said Hotel and gives false information to Palanpur police. The Palanpur police also concluded that such person was not Sh. Sumer Singh and, therefore, the report of the Police under Section 169 Cr.PC was accepted by the competent court on 14.9.96. The Hon'ble Court categorically observed as under in Para 7 as under|:-
"7. I have perused the police diary of C.R. No.216/96. Nothing substantial has been done in this case. Mr D N Patel, learned APP submitted that the police is in search of the person who gave false information to the police from Pali. For this two computer photographs have been prepared. I cannot understand when even according to the police the said information was received on telephone how and what basis a computer photograph could be prepared. There is no progress beyond this, in this case.
FIR Case No.403/96 of Kotwali police station, Pali for offence under sections 120-B, 195, 196, 342, 347, 357, 369, 458, 482 IPC and sections 17, 58 (1) and 58(2) of NDPS Act dated 18.11.1996
26. It is submitted that the Hon'ble High Court, thereafter examined the investigation conducted by CID- CB Rajasthan [ in the complaint filed by the deponent] in detail keeping the question to be decided, namely, the prayers prayed that both the petitions required to be Page 56 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT granted or not. The co-accused of the applicant Sh. IB Vyas has prayed for the following relief in Special Criminal Application No.1302/1997:-
(a) Your Lordships be pleased to issue appropriate writ, direction or order to transfer the criminal proceedings of FIR Case No.403/96 from Pali Kotwali police station for investigation and trial with C.R. No.216/96 at Palanpur in the interest of justice".
(b) Your Lordships be pleased to stay further proceedings of complaint registred at C.R. No.403/96 with Pali Kotwali Police Station pending admission, hearing and final disposal of this petition:
(c) Your Lordships be pleased to grant such other and further relief (s) as may be deemed fit in the interest of justice.
27. It is submitted that similarly the Special Criminal Application No.1309/1997 filed in the name of the State Government at the behest of the applicant-accused sought the following prayers:
(a) Your Lordships be pleased to issue a writ of mandamus or a writ of any other appropriate nature, order of direction, transferring the criminal proceedings of C.R. No.403/96 from Pali-Kotwali Police Station for investigation and trail with C.R. No.216/96 registered at Palanpur City Police Station.
(b)Pending the hearing and final disposal of this petition. Your Lordship may be pleased to stay the further proceedings of C.R.No.403/96, registered at Pali-Kotwali Police Station- Rajasthan.
(c) Ex parte and ad-interim relief in terms of Prayer B may kindly be granted.
(d)Such other and further relief/s as Your Lordship thinks just, fit and proper be granted.
28. That it becomes clear that when it suited him, the applicant-accused categorically contended before the respective High Court/s that only the offence registered as CR NO.216/1996 at Palanpur [ present offence] is the real offence and only that offence can be investigated. He has taken a volte-face and somersault now when the said distinct offence is directed by the High Court to be investigated and it has emerged that he himself is accused Page 57 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT in the said offence also.
29. It is submitted that the applicant-accused filed Special Criminal Application No.6 of 1998 before the Hon'ble High Court under Article 226 of the Constitution making the following submissions under his own affidavit. Para 3, 3.1 and 7 of the said petition are quoted hereunder:
3. This being the entire picture of the episode which came to be recorded and investigated at Palanpur by police officers of the LCB Palanpur in Prohibition Crime Register No.216/96 and the subsequent discharge order passed by Special Judge at Palanpur, the accused Sumersingh Rajpurohit, after a period of more than 5 months, knocked the door of the Court of Chief Judicial Magistrate, Pali with a private complaint for the offences under Section 120-B, 195, 196 and 342, 347, 357, 36, 458 and 482 of the Indian Penal Code, and Section 17, 58(1) and 58(2) of NDPS Act.
3.1 The Palanpur City Police Station was investigating the Prohibition Crime Register No.216/96 for the offence under Section 17, 58 of the NDPS Act.
7. These facts, emerging from the complaint, squarely cover the offences pending under investigation by Palanpur City Police Station, namely, Sections 17 & 58 of the NDPS Act.
These facts, narrated in the complaint by Sumersingh Rajpurohit, and report submitted by Investigating Police Officer, Palanpur City Police Station, clearly reveaL the commission of offences under Section 182 and 211 of the Indian Penal Code. Thus, the main thrust and gravamen of the charge, as disclosed in the complaint, prima facie, constitutes offences under Section 182, 211 and as alleged in the complaint, Section 195 & 196 of the Indian Penal Code. The conspiracy also covers the commission of this alleged offences.
30. It is submitted that based on the above contentions, the applicant-accused prayed for the following reliefs in the said petition:
(A) The Hon'ble Court may be pleased to issue appropriate writ of mandamus or prohibition or any other appropriate wit to the Investigating Officer of the C.I.D. (Crime Branch), Jaipur, from carrying on any further investigation, and submitting any report before the competent Court.Page 58 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT
(B) The Hon'ble Court may be pleased to quash and set aside the order of the Ld. Chief Judicial Magistrate, directing investigation under Section 156 (3) of the Code of Criminal Procedure, 1973;
(C) The Hon'ble Court may be pleased to quash and set aside the report of investigation submitted in the Court of Special Judge at Jodhpur, in respect to Crime Register No.403 of 1996 of Pali Kotwali Police Station. (D) The Hon'ble Court may be pleased to issue necessary direction to stop the further investigation by C.I.D. (Crime Branch), Jaipur in Crime Register No.403/96 at Pali Kotwali Police Station, during the pendency of this petition; and (E) That any just and proper order may be passed.
31. That the aforesaid petition i.e. SCA No.6 of 1998 was dismissed by the Ld. Single Judge of the Hon'ble High Court vide order dated 9.7/1998 which was confirmed by the Division Bench vide order dated 5.10.1998. The said applicants filed SLP Cri. No.4309 and 4375 of 1998 against the judgment and order dated 5.10.1998 which were rejected by the Hon'ble Supreme Court vide order dated 15.1.1999.
32. It is submitted that the applicant-accused thereafter filed Special Criminal Application No.982 of 1998 raising all technical pleas to thwart the proceedings etc and prayed for the following reliefs:
(a) This Hon'ble Court be pleased to issue writ of Mandamus or any other writ as the Hon'ble Court may deem fit and proper against the respondents restraining them from instituting or causing to be instituted, time barred prosecution against the petitioner and thereby depriving, or causing to deprive the petitioner f his personal liberty, except in accordance with law, in connection with C.R. No.403/1996 registered with Pali Kotwali Police Station at Pali, Rajasthan;
(b) This Hon'ble Court be pleased to issue writ of Prohibition. Preventing the institution of prosecution, Page 59 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT against the petitioner, and precedential or subsequential deprivation of his personal liberty with respect to Crime Register No.403 of 1996, registered at Pali Kotwali Police Station, by any Court, of subordinate jurisdiction in Gujarat, Rajasthan or elsewhere as the institution of prosecution would be time barred by statutory limitation and hence contrary to the law;
(c) Pending hearing and final disposal of this petition, this Hon'ble Court be pleased to stay all further proceedings against the petitioner in connection with C.R. No. 403 of 1996 registered at Pali Kotwali Police Station, Pali, Rajasthan;
(d) Any other/further direction as may be deemed fit and just in the circumstances of the case, be granted in favour of the present petitioner.
33. It is submitted that applicant-accused thereafter withdrew the said petition vide order dated 10.12.1998 and made a representation to IGP &CID, Rajasthan.
34. It is further submitted that having failed in his attempts before Hon'ble Gujarat High Court in his own petition, the applicant-accused filed a petition in the name of State of Gujarat in Rajasthan High Court in SB Crl. Misc. Application No.108 of 1999.
35. That simultaneously he also got similar petition filed in the name of his co-accused Sh. RR Jain before Rajasthan High Court on the same grounds. Both the petitions got dismissed vide order dated 5.4.200 [102 Crl.LJ.800]. Against the said order, the petitioner, who were navigating the litigation, got a petition filed in the name of the Sh.RR Jain first."
37. That, present applicant in the present case able to frustrate the courts of justice by delaying the trial since 1996. The present applicant made first attempt by filing Special Criminal Application No. 1038 of 1997 name of Shri IB Vyas, Page 60 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT the co-accused and Criminal Misc. Application No. 1309 of 1997 on the name of State of Government. Both the referred application were filed invoking Section 186 of the Act, which is quoted herein under:
"186. Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided-
(a) if the Courts are subordinate to the same High Court, by that High Court;
(b) if the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced and thereupon all other proceedings in respect of that offence shall be discontinued.
38. While dealing with the said two petitions, this Court was conscious of (A) pending of criminal case in connection with CR NO.
216 of 1996 in Panapur Court and CR No. 403 of 1996 pending at Pali Rajasthan.
(B) Charge sheet is already filed by Rajasthan Police in Page 61 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT CR No. 403 of 1996.
39. This court made it clear that it was the case of the Palanpur Police that as a part of the said conspiracy someone has entered the name of Shri Sumersingh in the hotel register about plaintiff of narcotic substance in the room of the said hotel and gave false information to the Palanpur Police. The Palanpur Police also inquired that such person was not Sumersingh and therefore, a report under Section 169 of CrPC was submitted by Police and accepted by the competent court on 14th September 1996 in para 7, this Court has categorically observed as under:
40. After examining the investigation conducted by CID-CB Rajasthan (in the complaint by by the deponent) this Court keeping the question to be decided mainly prayers prayed by both the advocates requires to be granted or not.
41. Mr. IB Vyas in his Special Petition No. 103 of 1997 prayed to transfer the criminal proceedings of CR No. 403 of 1996 from Pali Kotwali for an investigation and try with proceedings of CR No. 216 of 1996 at Palanpur in the interest of justice and made other prayers. In Special Criminal Application No. 1309 of 1997, it was prayed to issue direction Page 62 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT of transferring proceedings of CR No. 403 of 1996 from Pali Kotwali for investigation and try with the proceedings of CR No. 216 of 1996 registered at Palanpur City Police Station along with consequential reliefs.
42. It becomes clear that the applicant has categorically contended before the respective High Courts that offence registered being CR No. 216 of 1996 at Palanpur City Police Station (present offence) is the real offence and only that offence can be investigated. Now, he has taken a different view and Sumer Singh and said different offence is directed by the High Court to be investigated and it has emerged that applicant himself is an accused in the said offence also.
43. In the case on hand, learned Special Judge has assigned detailed reasons for examining the discharge application filed under Section 227 Cr.PC. It is clear from his order that after consideration of relevant materials, charge had been framed. After evaluating the material produced by the prosecution and after considering the probability of the case, learned Special judge satisfied by the existence of several grounds against the applicant and framed the charge. Whether the materials on hand of the prosecution are sufficient or not are important for Page 63 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020 R/CR.RA/1650/2019 CAV JUDGMENT trial. At this stage, it cannot be claimed that there is no sufficient ground for proceedings against the applicant and discharge is the only remedy. Further whether the trial will in end conviction or acquittal is also immaterial, all these relevant aspects have carefully been considered by the learned Special Judge dismissing the discharge application filed by the applicant herein. This court is fully agreed with the said conclusion.
With above reasons, this revision application is hereby dismissed. Notice stands discharged.
(B.N. KARIA, J) K.S. DARJI/Dolly Page 64 of 64 Downloaded on : Sun Jun 14 07:35:57 IST 2020