Gujarat High Court
Samirbhai Madhukantbhai Shah vs State Of Gujarat on 29 September, 2022
R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4578 of 2022
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2022
In R/SPECIAL CRIMINAL APPLICATION NO. 4578 of 2022
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 2 of 2022
In R/SPECIAL CRIMINAL APPLICATION NO. 4578 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
5 CIRCULATE TO ALL THE SUBORDINATE COURTS YES
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SAMIRBHAI MADHUKANTBHAI SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
MR YOGESH S LAKHANI SENIOR ADVOCATE WITH MR JAY THAKKAR,
ADVOCATE for the Complainant
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 29/09/2022
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ORAL JUDGMENT
[1] By way of this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C."), the petitioner - original accused begs to challenge the order dated 30 th March 2022 passed below Exhibit : 290 in Sessions Case No.104 of 2016 with Sessions Case No.11 of 2017 with Sessions Case No.55 of 2019 with Sessions Case No.17 of 2021 pending before the learned 10th Additional Sessions Judge, Rajkot, whereby an application preferred by the accomplice - co-accused namely Samir Ishwarbhai Gandhi came to be declared as approver under Section 307 of the Cr.P.C.
[2] Brief facts leading to filing of the present petition, in nutshell, can be stated as under:
[2.1] The petitioner along with three other accused persons are facing the prosecution for the offence punishable under Sections 302, 365, 340 and 120(B) of the Indian Penal Code. The petitioner is a partner of Raj Moti Oil Mill and Samir Gandhi i.e. the accused No.2, who turned to be an approver, was working as a Manager of Raj Moti Oil Mill. [2.2] On 28th February 2016, the accused persons had gone to the Page 2 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022 R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 residence of the brother-in-law of the complainant namely Dineshbhai Maganbhai Daxini at Ahmedabad and abducted him to Rajkot forcefully and thereafter, detained at different places in Rajkot for extorting confession and money.
[2.3] On 1st March 2016, the sister of the complainant had received a phone call from the mobile of the accused No.2 - Samir Gandhi and she was informed that her husband namely Dineshbhai Maganbhai Daxini was beaten up by the police officer, and resultantly, said Dineshbhai Maganbhai Daxini succumbed to the injuries.
[2.4] Accordingly, the First Information Report being I-C.R. No.66 of 2016 came to be lodged with 'B' Division Police Station, Rajkot. [2.5] In furtherance to the aforesaid F.I.R., the investigation was carried out and after completion of investigation, first chargesheet came to be filed against the accused - Samir Gandhi. Thereafter, in the second chargesheet, the petitioner was shown as an accused No.1. As the case was exclusively triable by the Court of Sessions, the same was committed to the Court of learned Sessions Judge, Rajkot being Sessions Case No.11 of 2017. Similarly, the third and fourth chargesheet came to be filed, which culminated into Sessions Case No.55 of 2019 and Sessions Case No.17 of 2021 respectively and all are pending for adjudication / trial Page 3 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022 R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 before the learned 10th Additional Sessions Judge, Rajkot. [2.6] While pending trial, the co-accused - accomplice - Samir Gandhi had filed a temporary bail application being Criminal Miscellaneous Application No.363 of 2022 for a period of 30 days on the ground of his nephew's marriage at Mumbai. However, the learned Sessions Court, vide its order dated 17th February 2022, had partly allowed the said application and granted temporary bail to the co-accused - accomplice - Samir Gandhi from 17th February 2022 to 24th February 2022. [2.7] The co-accused - accomplice - Samir Gandhi, while on temporary bail, moved a handwritten application at Exhibit : 290 dated 22 nd February 2022 in Sessions Case No.104 of 2016 under the provisions of Sections 306 and 307 of the Cr.P.C. for granting pardon. The said application, after hearing the concerned parties, came to be allowed by the learned 10th Additional Sessions Judge, Rajkot, vide its order dated 30th March 2022, by declaring the accused - accomplice - Samir Gandhi as an approver.
[3] Being aggrieved and dissatisfied with the aforesaid order dated 30th March 2022 passed by the learned Sessions Judge, Rajkot, the petitioner has approached this Court with the present petition challenging, inter alia, the order dated 30th March, 2022 passed below Page 4 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022 R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 Exhibit : 290 in Sessions Case No.104 of 2016 with Sessions Case No.11 of 2017 with Sessions Case No.55 of 2019 with Sessions Case No.17 of 2021 pending before the learned 10th Additional Sessions Judge, Rajkot. [4] I have heard Mr. Hriday Buch, learned advocate for the petitioner and Ms. Moxa Thakkar, learned A.P.P. for the respondent - State of Gujarat and Mr. Yogesh S. Lakhani, learned Senior Advocate assisted by Mr. Jay Thakkar, learned advocate for the first informant. [5] Mr. Buch, learned advocate for the petitioner has raised the sole contention that the learned Sessions Court has committed a material procedural irregularity in declaring the co-accused - accomplice as an approver inasmuch as not followed the mandatory procedure, as envisaged under the provisions of Sections 306(1) and 306(4)(a) of the Cr.P.C., by not examining the co-accused - accomplice on oath before declaring as an approver. Thus, according to Mr. Buch, mere application is not sufficient and that the learned Sessions Court should have recorded its subjective satisfaction after substantial compliance of Section 306(4)(a) of the Cr.P.C.
[6] By making the above aforesaid submissions, Mr. Buch, learned advocate for the petitioner has prayed this Court to allow the present petition in the interest of justice.
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R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 [7] Per contra, Ms. Moxa Thakkar, learned A.P.P. for the respondent -
State of Gujarat has vehemently opposed the present petition contending, inter alia, that the learned Trial Court has perfectly justified in declaring the co-accused - accomplice as an approver after following due procedure, as prescribed under the provisions of the Cr.P.C., and thereby, cannot be said to have committed any material procedural irregularity. Ms. Thakkar, learned A.P.P. further submitted that so far as the provisions of Section 306(1) of the Cr.P.C. is concerned, the same is being scrupulously followed, and thereby, the order passed by the learned Sessions Court does not require to be disturbed. According to Ms. Thakkar, learned A.P.P., once the case is committed while granting pardon, the only mandatory requirement is the provisions under Section 306(1) of the Cr.P.C.
[8] To substantiate her contention, Ms. Thakkar, learned A.P.P. has heavily relied upon the judgement of the Hon'ble Supreme Court in the case of Narayan Chetanram Chaudhary vs. State of Maharashtra reported in 2000 (8) SCC 457.
[9] Ms. Thakkar, learned A.P.P. further pointed out that the examination-in-chief of the co-accused - accomplice - Samir Gandhi, turned approver, is over. The learned A.P.P. further submitted that the Page 6 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022 R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 cross-examination of the said witness has also been commenced and inasmuch as four questions have also been put forward, however, because of the pendency of the present petition, the learned Trial Court has deferred the proceedings, thereby, this Court may not show any indulgence by interfering with the impugned order as even otherwise, no prejudice will cause to the co-accused i.e. the petitioner, as the said witness / approver shall be available for cross-examination in the trial. [10] By making the aforesaid submissions, the learned A.P.P. has prayed this Court to dismiss the present petition. [11] Mr. Yogesh Lakhani, learned Senior Advocate for the first informant, with the consent of the respective learned advocates, who is permitted to appear before this Court in the present proceedings, submitted that the order impugned passed by the learned Sessions Court is perfectly justified within the four corners of law. Mr. Lakhani, learned Senior Advocate further submitted that while passing the impugned order, the learned Sessions Judge has followed the provisions of Section 306 read with Section 307 of the Cr.P.C. and thereby, the impugned order cannot be said to be passed in violation of any provision of law.
Mr. Lakhani has emphatically submitted that the learned Sessions Court has made sufficient inquiry, as envisaged under the provisions of Section Page 7 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022 R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 306(1) of the Cr.P.C. by putting pertinent questions, thus, it cannot be said that the learned Sessions Court has committed any material procedural irregularity.
[12] So as to substantiate his contentions, Mr. Lakhani, learned Senior Advocate has relied upon the judgement of the Hon'ble Supreme Court in the case of Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra reported in (2009) 6 SCC 498.
[13] By making the aforesaid submissions, Mr. Lakhani, learned Senior Advocate has prayed this Court to dismiss the present petition. [14] I have heard the learned advocates appearing for the respective parties and have gone though the materials produced on record in details. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties, except what are stated hereinabove.
[15] Having heard the learned advocates appearing for the respective parties, a short but an interesting question of law that arises for the consideration of this Court is whether the provisions of Section 306(4)
(a) of the Cr.P.C. would be attracted once the case is committed to the Court of Sessions?
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R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 [16] In my view, the aforesaid question is no more res integra, however, for better understanding of the aforesaid question of law, it would be profitable to refer to the provisions of Sections 306 and 307 of the Cr.P.C. as under:
"306. Tender of pardon to accomplice. (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.
(2) This section applies to:
(a) any offence triable exclusively by the court of session or by the court of a special judge appointed under the Criminal Law Amendment Act, 1952;
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(3) Every magistrate who tenders a pardon under sub- section (1) shall record--Page 9 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022
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(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made; and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-section (1) --
(a) shall be examined as a witness in the court of the magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.
(5) Where a person has accepted a tender of pardon made under sub-
section (1) and has been examined under sub- section (4), the magistrate taking cognizance of the offence shall, without making any further inquiry in the case, --
(a) commit it for trial--
i) to the court of session if the offence is triable exclusively by that court or if the magistrate taking cognizance is the Chief Judicial Magistrate;
ii) to a court of special Judge appointed under the Criminal Law Amendment Act, 1952, if the offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief Judicial Page 10 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022 R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 Magistrate who shall try the case himself."
"Section 307. Power to direct tender of pardon -- At any time after commitment of a case but before judgment is passed, the court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person."
[17] Keeping in mind the aforesaid provisions, it would also be apt to refer to and rely upon the relevant observations of the Hon'ble Supreme Court in the case of Narayan Chetanram Chaudhary (supra). It reads thus:
"25. In order to appreciate the submissions of the learned counsel a reference to Sections 306 and 307 Cr.P.C. is necessary. Section 306 provides:
* * * A perusal of both the Sections clearly indicates that Section 306 is applicable in a case where the order of commitment has not been passed and Section 307 would be applicable after commitment of the case but before the judgment is pronounced. The provisions of sub- section (4)(a) of Section 306 would be attracted only at a stage when the case is not committed to the court of Sessions. After the commitment, the pardon is to be granted by the Trial Court subject to the conditions specified in sub-section (1) of Section 306, i.e. approver making a full and true disclosure of the whole of the circumstances Page 11 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022 R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. It may be noticed that under the old Code, only the District Magistrate had the power to tender pardon, at any stage of the investigation, enquiry or trial even though he himself might not be holding such enquiry or trial. Pardon could be granted by the District Magistrate even during the pendency of the trial in the Sessions Court. By Criminal Law Amendment Act, 1952, old sections 337 to 339 were substituted by sections 306 to 308 of the Code of Criminal Procedure conferring the power to tender pardon only to Judicial Magistrates and the Trial Court. Section 307 - in its present form - does not contemplate the recording of the statement of the approver twice as argued. Accepting the submissions made on behalf of the appellant would amount to legislate something in Section 307 which the Legislature appears to have intentionally omitted.
26. In Suresh Chandra Bahri v. State of Bihar [1995 Supp. (1) SCC 80] this Court while dealing with the case where the Approver was granted pardon by the committal court observed that every person accepting the tender of pardon made under sub-section (1) of Section 306 has to be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. The examination of the accomplice in such a situation was held to be mandatory which could not be dispensed with. Referring to a Full Bench Judgment of the Gujarat High Court in Kalu Khoda v. State [AIR 1962 Guj. 283] this Court observed that:
"If the said defect of not examining the approver at the committal stage by the committing Magistrate is rectified later, no prejudice can be said to be caused to an accused person and therefore the trial cannot be said to be vitiated on that account."Page 12 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022
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27. There is no legal obligation on the Trial Court or a right in favour of the accused to insist for the compliance with the requirement of Section 306(4) of the Cr.P.C. Section 307 provides a complete procedure for recording the statement of an accomplice subject only to the compliance of conditions specified in Sub-Section (1) of Section
306. The law mandates the satisfaction of the court granting pardon, that the accused would make a full and true disclosure of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. It is not necessary to comply with the requirement of Section 306(4) when the pardon is tendered by the Trial Court. The Trial Court, in this case has taken all precautions in complying with the provisions of Section 306(1) before tendering pardon to accused Raju, who later appeared as PW2. We do not find any violation of law or illegality in the procedure for tendering the pardon and recording the statement of PW2."
[18] So far as the decision of the Hon'ble Supreme Court in the case of Santosh Kumar Satishbhushan Bariyar (supra) is concerned, the relevant observations which deserves due reference are quoted as under:
"34. Sub-section (4) of Section 306 is procedural in nature. It is necessary to be followed only by a Magistrate as he would not have any jurisdiction to try the case himself. The learned Sessions Judge before whom the case is committed for trial must be informed as to on what basis pardon had been tendered. Section 307 does not contain any such condition. The power of the learned Sessions Judge is independent of the provisions contained in Section 306 thereof. The condition Page 13 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022 R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 mentioned in Section 307 refers to the condition laid down in sub- section (1) of Section 306, namely that the person in whose favour the pardon has been tendered, will make a full and true disclosure of the whole of the circumstances within his knowledge. The power of a Sessions Court is not hedged with any other condition."
"39. It was contended that it was obligatory on the part of the learned Sessions Judge to comply with the requirements of Sub-section (4) of Section 306 of the Code of Criminal Procedure. We, with respect, could not find that any such proposition of law was laid down in the said judgment in Rampal Pithwa Rahidas and Others v. State of Maharashtra [1994 Supp (2) SCC 73] as such. A bare perusal of the said decision in Rampal Pithwa Rahidas and Others v. State of Maharashtra clearly goes to show that the evidence of approver was found to be wholly untrustworthy and unreliable. In that situation, the court refrained itself from expressing any opinion about the effect of the alleged non-compliance with the provisions of Section 306(4) of the Code of Criminal Procedure read with Section 307 thereof. In the case before us the pardon granted by the learned Sessions Judge was legal. Whereas the pardon was granted on 3.04.2002, PW-1 was examined on 29.07.2002. Thus, his evidence was recorded only after grant of pardon."
"41. It was furthermore opined that what was mandatory was the examination of the accomplice. Non- examination of the approver at the committal stage by the committing Magistrate, if rectified later, would not lead to any prejudice to the accused, stating:
"27. There is no legal obligation on the Trial Court or a right in favour of the accused to insist for the compliance with the Page 14 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022 R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 requirement of Section 306(4) of the Cr.PC. Section 307 provides a complete procedure for recording the statement of an accomplice subject only to compliance of conditions specified in Sub-section (1) of Section 306. The law mandates the satisfaction of the Court granting pardon, that the accused would make a full and true disclosure of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. It is not necessary to comply with the requirement of Section 306(4) when the pardon is tendered by the Trial Court. The Trial Court, in this case has taken all precautions in complying with the provisions of the Section 306(1) before tendering pardon to accused Raju, who later appeared as PW. 2. We do not find any violation of law or illegality in the procedure for tendering the pardon and recording the statement of PW.2."
42. If it is to be held that in each and every case pardon can only be granted at the initial stage, the power conferred upon the Sessions Judge to grant under Section 307 of the Code of Criminal Procedure for all intent and purport shall become otiose. The order of the learned judge granting pardon to the Approver, Kumar Gaurav is, therefore, legal and valid."
[19] Keeping in mind the provisions under Sections 306 and 307 of the Cr.P.C. vis-a-vis the exposition of law by the Hon'ble Supreme Court, what can be deduced is that Section 306 of the Cr.P.C. is applicable in a case where the order of committal has not been passed and Section 307 of the Cr.P.C. would be applicable only after committal of the case and Page 15 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022 R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 before the judgement is pronounced. Thus, both the provisions are operating on a different facts. Once the case is committed and pending before the Court of Sessions and if the pardon is granted by the said Court, in that event, the provisions under Section 306(4)(a) is not attracted. The only legislative mandate is that the pardon would be tendered on the same condition. The expression "on the same condition"
obviously refers to the condition of tendering a pardon engrafted under sub-section (1) of Section 306 of the Cr.P.C., and thus, sub-section (4) of Section 306 cannot be said to be a condition for tendering pardon. A combined reading of sub-section (4) of Section 306 and Section 307 would make it clear that in a case exclusively triable by the Sessions Court, if an accused is tendered pardon and is taken as an approver before the commitment, then compliance of sub-section (4) of Section 306 becomes mandatory, and non-compliance of such mandatory requirements would certainly vitiate the order of declaring the approver, but if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307, then in such a case, the provisions of sub-section (4) of Section 306 are not attracted.
[20] In view of the aforesaid discussion, I answer the question accordingly.
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R/SCR.A/4578/2022 JUDGMENT DATED: 29/09/2022 [21] Resultantly, the present Special Criminal Application fails being bereft of any merit and is hereby dismissed. Consequently, the connected Criminal Miscellaneous Applications also stand dismissed.
(NIRAL R. MEHTA,J) CHANDRESH Page 17 of 17 Downloaded on : Sun Dec 25 02:54:12 IST 2022