Gujarat High Court
Lakham Damji Bhesla & 6 vs State Of Gujarat & on 23 December, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/4512/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4512 of 2015
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LAKHAM DAMJI BHESLA & 6....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR JAGDHISH SATAPARA, ADVOCATE for the Applicant(s) No. 1 - 7
MR HARSHIT S TOLIA, ADVOCATE for the Respondent(s) No. 2
MR PARTH S TOLIA, ADVOCATE for the Respondent(s) No. 2
MS. THAKORE, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/12/2016
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicants have prayed for the following reliefs;
"(a) To allow the present petition;
(b) To issue a writ of mandamus and/or any other appropriate writ, order or direction quashing and setting aside the impugned order (Annexure-A) dated 30.06.2015 passed below Exh. 3 application in Sessions Case No.8/2014 by the learned 9th (Ad-hoc) Additional Sessions Judge, Veraval.
(c ) Pending admission, haring and final disposal of this petition, to stay execution, implementation and operation of the impugned order (Annexure-A) dated 30.06.2015 passed below Exh.3 application in Sessions Case No.8/2014 by the lernede 9th (Ad-hoc) Additional Sessions Judge, Veraval.
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R/SCR.A/4512/2015 ORDER
(d) To pass any other and further orders as may be deemed fit and proper to the Hon'ble Court."
2. On 30th July, 2015, the following order was passed;
"Mr.L.B.Dabhi, learned Additional Public Prosecutor, for respondent No.1, has raised an objection that the impugned order passed by the Sessions Court is not an interlocutory order, therefore, a revision application under Section 397 of the Code of Criminal Procedure, 1973 (the Code) would be maintainable and not a writ petition under Articles 226 of the Constitution of India read with Section 482 of the Code.
1. In support of the above submissions, reliance has been placed upon the following judgments:
(i) Mohit alias Sonu And Another v. State of Uttar Pradesh And Another - (2013)7 SCC 789
(ii) Amit Kapoor v. Ramesh Chander And Another - (2012)9 SCC 460
(iii) Hamida v. Rashid alias Rasheed And Others - (2008)1 SCC 474
2. On the other hand, Mr.S.V.Raju, learned Senior Advocate with Mr.Jagdish Satapara, learned advocate for the petitioners, has submitted that the Supreme Court has held in Dhariwal Tobacco Products Limited And Others v. State of Maharashtra And Another reported in (2009)2 SCC 370, that only because a revision application is maintainable, the same by itself would not constitute a bar for entertaining an application under Section 482 of the Code.
3. Reliance has also been placed by the learned Senior Advocate upon another judgment of the Supreme Court in Urmila Devi v. Yudhvir Singh reported in (2013)15 SCC 624.
4. The learned Senior Advocate has further relied upon a judgment of the Supreme Court in Pepsi Foods Ltd. And Another v. Special Judicial Magistrate And Others, reported in (1998)5 SCC 749.
5. On merits, the learned Senior Advocate has submitted that respondent No.2 (original complainant) has preferred the application at Ex.3 before the Sessions Court for impleading the petitioners as accused persons under Section 319 of the Code, by suppressing the material fact that a Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Dec 24 00:17:42 IST 2016 R/SCR.A/4512/2015 ORDER similar complaint is pending before the court of learned Chief Judicial Magistrate, Veraval, wherein a Police Report has been filed, justifying the action of the police, with evidence, why the present petitioners ought not to be made accused. It is submitted that these proceedings are not even mentioned in the application preferred before the learned Sessions Judge. The proceedings before the learned Chief Judicial Magistrate are still pending and if a decision is taken, it would result in a complicated situation where there is a possibility of two conflicting decisions.
6. It is next submitted that an application under Section 319 of the Code is not maintainable in view of the judgment of the Supreme Court in the case of Hardeep Singh v. State of Pubjab And Others -
(2014)3 SCC 92, as the trial has not commenced so far.
7. Learned Senior Counsel has submitted that the Sessions Court, while allowing the application preferred by respondent No.2, has relied upon a judgment of the Supreme Court in the case of Dharam Pal And Others v. State of Haryana And Another reported in (2014)3 SCC 306. It is submitted that this case would not be applicable in the present factual scenario as the present case is triable by a Magistrate, as the offence is under Section 326 of the Indian Penal Code. In the case of Dhariwal Tobacco Products Limited And Others v. State of Maharashtra And Another (supra), the offences were exclusively triable by a Court of Sessions.
8. On the above grounds, it is submitted that the petition be considered and interim relief may be granted.
9. Having heard Mr.S.V.Raju, learned Senior Advocate for the petitioners and Mr.L.B.Dabhi, learned Additional Public Prosecutor for respondent No.1, it appears that the issues raised before this Court require consideration. However, the issue regarding maintainability of the petition is kept open and shall be decided at the time of the final hearing of the petition.
10.Insofar as the submissions on merits are concerned, in the view of this Court, the learned Senior Advocate has succeeded in making out a Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Dec 24 00:17:42 IST 2016 R/SCR.A/4512/2015 ORDER prima facie case for grant of interim relief. Hence, the following order:
Issue Notice, returnable on 25.08.2015.
Mr.L.B.Dabhi, learned Additional Public Prosecutor, waives service of Notice for respondent No.1. Ad-interim relief, in terms of Paragraph-10(c) is granted, till then.
In addition to the normal mode of service, Direct Service for respondent No.2, through the concerned Police Station, is also permitted."
3. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the 9th (Ad-hoc) Additional Sessions Judge, Veraval committed any error in passing the impugned order.
4. I take notice of the fact that the the respondent No.2 herein-original first informant preferred an application Exh.3 in the Sessions Case No.8 of 2014, invoking the provisions of section 319 of the Cr.P.C. for the purpose of arraigning the applicants herein as the accused persons. It is the case of the respondent No.2 that from day one, he has been telling the police that the real culprits are the applicants herein. The first informant has also named the applicants herein in the first information report. According to him, a dying declaration was recorded, and in the said dying declaration also, they have been named as the accused persons. Despite the same, at the end of the investigation, the police thought fit not to file the charge-sheet against the applicants herein, but the charge-
sheet was filed against the two other persons. In such circumstances, the first informant was compelled to file the application, Exh.3.
5. Mr. Raju, the learned counsel appearing for the Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Dec 24 00:17:42 IST 2016 R/SCR.A/4512/2015 ORDER applicants submitted that the learned Judge seems to have been kept in dark so far as certain relevant information is concerned. The learned counsel pointed out that in the past, the first informant herein had preferred a complaint in the court of the learned In-charge Additional Chief Judicial Magistrate, Veraval for the offence punishable under sections 307, 149, 148, 147 and 143 of the Indian Penal Code. In the said complaint, the applicants herein were shown as the accused persons. The complaint came to be registered as the Inquiry Case No.113 of 2012. In the course of the inquiry, it was revealed that one first information report was also there before the police, and the police was looking into the same. In such circumstances, the learned Magistrate, in exercise of his power under section 210 of the Cr.P.C., thought fit to call for the report of the police. The police filed a detailed report dated 27th July, 2012, which is at page-77 of this paper book, Annexure-F. The bare perusal of the report would indicate that the police had carried out the investigation so far as the involvement of the applicants herein is concerned and reached to the conclusion that they were, in no manner, concerned with the alleged offence. In fact, it appears that the investigation was in the direction of alibi. In what manner this report was ultimately dealt with by the learned Magistrate is not known. What has been the outcome of the inquiry case is also not known.
6. The learned counsel appearing for the applicants would submit that all these facts were not brought to the notice of the learned 9th (Ad-hoc) Additional Sessions Judge, Veraval. If such facts would have been brought to the notice of the learned Judge, probably, it would have its own effect and the Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Dec 24 00:17:42 IST 2016 R/SCR.A/4512/2015 ORDER learned Trial Court could have considered the matter accordingly.
7. My attention is also drawn to the application Exh.25, which is at page-75, Annexure-E to this application filed by the learned Public Prosecutor praying that the impugned order passed by the Trial Court below Exh.3 be stayed from its operation. I take notice of the para No.3 stated therein. It appears that in the para No.3, there is a reference of the Criminal Inquiry Case No.113 of 2012 and the papers in that regard.
8. In such circumstances referred to above, the learned counsel would pray that the impugned order deserves to be quashed and the matter be remitted to the court concerned for fresh consideration of the application, Exh.3.
9. On the other hand, the learned APP appearing for the State, has also supported the case of the applicants herein.
10. This application has been vehemently opposed by Mr. Tolia, the learned counsel appearing for the respondent No.2. According to Mr. Tolia, no error, not to speak of any error of law could be said to have been committed by the Trial Court in passing the impugned order warranting any interference at the end of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Dec 24 00:17:42 IST 2016 R/SCR.A/4512/2015 ORDER Trial Court committed any error in passing the impugned order.
12. The following questions remain unanswered;
(I) if the applicants herein were named in the first information report as well as in the dying declaration and if the Investigating Officer thought fit not to file any charge-sheet against the applicants herein, then whether any summary report was filed in this regard before the court concerned?
(ii) If such report, referred to above, was filed, then how the same was dealt with by the court concerned?.
13. The reason why I am saying so is that if the accused persons are not to be charge-sheeted, although named in the first information report, then the Investigating Officer has to file an appropriate report in that regard assigning reasons because such report is not binding to the court. The court concerned may reject the report and may deem fit to take cognizance under section 190 (1)(b) of the Cr.P.C. or may also deem fit to proceed under section 200 of the Cr.P.C. There is no information in this regard.
14. I wonder if the Public Prosecutor, in charge of the sessions case, brought to the notice of the learned Trial Court, the report which is at page-77 of this paper book. I am referring to the report dated 27th July, 2012 filed by the Investigating Officer in the court of the learned Additional Chief Judicial Magistrate, Veraval. This report has some bearing because in the report, it has been stated that the applicants Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Dec 24 00:17:42 IST 2016 R/SCR.A/4512/2015 ORDER are not involved in the alleged offence. It is suggestive of the fact that some investigation was carried out and, accordingly, the Investigating Officer reached to such a conclusion.
15. In such circumstances referred to above, I am left with no other option but to quash this order. The impugned order is, accordingly, quashed and set aside. The matter is remitted to the court of the learned 9th (Ad-hoc) Additional Sessions Judge, Veraval for fresh consideration of the application Exh. 3. The Trial Court shall call for the necessary information from the Investigating Officer in this regard and shall also take assistance of the public prosecutor, in charge of the trial. The court shall also consider the report, which I am referring to, i.e., page-77, Annexure-F to this application. After due consideration of all the relevant aspects, the Trial Court shall pass the appropriate orders afresh after affording the opportunity of hearing to all the parties concerned without being influenced, in any manner, with the observations made in the impugned order.
16. With the above, this application is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Dec 24 00:17:42 IST 2016