Gujarat High Court
Hussain Jumma Patani vs State Of Gujarat & 2 on 18 January, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.RA/718/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 718 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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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HUSSAIN JUMMA PATANI....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR ND NANAVATI WITH MR VIRAL K SHAH, ADVOCATE for the Applicant(s) No. 1
MR MITESH L RANGRAS, ADVOCATE for the Respondent(s) No. 2 - 3
MR NJ SHAH APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 18/01/2017
ORAL JUDGMENT
1. By way of present Criminal Revision Application preferred under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as the "Code") by the applicant, who is original accused No.4, challenging the order passed by the learned Eighth (Ad-hoc) Additional Sessions Judge, Jamnagar, in Criminal Revision Application No.19 of 2013 dated 3.9.2016, whereby the learned Sessions Judge has allowed the Criminal Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat Aug 12 13:37:08 IST 2017 R/CR.RA/718/2016 JUDGMENT Revision Application No.19 of 2013 and quashed and set aside the order passed by the learned Eleventh Additional Chief Judicial Magistrate, Jamnagar, dated 31.1.2013, whereby learned trial Judge accepted the Summary Report filed by the Investigating Officer in connection of the C.R. No. I 80 of 2011 registered with with Panchkoshi 'B' Police Station at Jamnagar on 30.4.2011.
2. That complaint came to be registered being C. R. No. I 80 of 2011 with Panchkoshi 'B' Police Station at Jamnagar on 30.4.2011 for offences to have been allegedly committed by the applicant under Sections 143, 147, 148, 149, 120B, 323, 324 and 307 of the Indian Penal Code. The present applicant was one amongst the 10 accused persons. After completion of investigation, charge sheet came to be filled on 28.7.2011 before the Chief Judicial Magistrate, Jamnagar wherein the name of the applicant is not shown. Subsequently, on 02.9.2011, as the case is triable by the Court of Sessions, the same is committed to the Court of Sessions, Jamnagar. That on 25.4.2012 charge came to be framed by the learned Sessions Judge. On 25.4.2012, the original complainant filed an application under Section 173(8) of the Code of Criminal Procedure directing the investigating officer to re-investigate the offence and said application came to be granted by the Sessions Court. The investigating officer carried out the investigation and filed "A" summary report before the Learned. Chief Judicial Magistrate on 31.3.2013 and the said report was accepted by the Learned Chief Judicial Magistrate despite the complainant had raised objections for filing of "A" summary report in favour of the applicant. Therefore, said order dated 31.3.2013 was challenged by the respondent Nos.2 and 3 Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat Aug 12 13:37:08 IST 2017 R/CR.RA/718/2016 JUDGMENT herein by way of Criminal Revision Application No. 19 of 2013 before the Sessions Court, wherein the present applicant was not made a party to the said application. The Criminal Revision Application No. 19 of 2013 came to be allowed vide order dated 16.5.2015 by the learned Additional (Ad-hoc) Sessions Judge, Jamnagar. The said order dated 16.5.2015 passed by the learned Sessions Judge was challenged by the present applicant before this Court by way of Criminal Revision Application No. 259 of 2015 on the ground that there is gross violation of principles of natural justice. The Coordinate Bench of this Court vide order dated 3.11.2015 quashed and set aside the order dated 16.5.2015 and remanded matter back to the Sessions Court for reconsideration the same after impleading the present applicant as party and after giving an opportunity of hearing to the present applicant.
3. The Session Court had passed order dated 3.9.2016 allowing the Revision Application thereby setting aside the order dated 31.03.2013 of the Learned Chief Judicial Magistrate accepting the "A" summary Report of the Investing Officer.
4. Learned Senior Counsel Mr. Nanavati with learned advocate Mr. Viral K. Shah of the applicant submitted that order impugned is bad in law in view of the fact that after due investigation, the Investigating Officer has submitted 'A' Summary and it was accepted by the Learned Chief Judicial Magistrate after taking into consideration the materials on record.
5. The Learned APP submitted that order passed by the Learned Chief Judicial Magistrate accepting "A" Summary is Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat Aug 12 13:37:08 IST 2017 R/CR.RA/718/2016 JUDGMENT just and proper and without considering the provisions of Section 173(8), the application filed by the original complainant was entertained, not only that he has vehemently submitted that Section 319 of the Code takes care of the grievance raised by the parties to the proceeding and submitted that present revision application may be disposed of with appropriate directions.
6. The Learned advocate Mr. Mitesh Rangras for the opponent Nos. 2 and 3 have initially supported the order impugned, but subsequently adopted the submissions of the Learned Additional Public Prosecutor to the effect that with appropriate directions considering the provisions of Section 319 of the Code, this revision may be disposed of and original complainant may be permitted to move before the trial Court by way of an application under Section 319 of the Code.
7. Having heard the learned advocates for the parties and having perused the record, it is clear that the question involved in the present revision is about the validity, legality and propriety of the order dated 3.9.2016 passed by the Court below, whereby the Court below has directed the investigating authority to file a final report against the present applicant. The said direction overrules the 'A' summary report filled by the Investigating Officer qua the present applicant which was accepted by the order dated 31.3.2013.
8. The Investigating Officer in his 'A' summary report had opined that there was no evidence with regards the present applicant and hence he could not be arraigned in the offence. As per the investigation conducted by the Investigating Officer and the evidences availed during course of investigation, it has Page 4 of 9 HC-NIC Page 4 of 9 Created On Sat Aug 12 13:37:08 IST 2017 R/CR.RA/718/2016 JUDGMENT surfaced that the present applicant i.e. accused No. 4 was not at place of incident, when alleged offence was occurred. Such finding of the Investigating Officer is based upon evidences which include oral evidences as also call details and mobile phone location which clearly indicate that the present applicant was not present at the time when incident was occurred.
9. The findings of the Investigating Officer in the 'A' summary report were accepted by the Chief Judicial Magistrate in his order dated 31.3.2013. The 'A' summary report filled by the Investigating Officer qua the present applicant found favour with the Learned Chief Judicial Magistrate, Jamnagar for the reasons recorded in the order. Aforesaid findings of the Learned Chief Judicial Magistrate which form to be the basis of his order dated 31.3.2013 have been overruled by the Sessions Court for the reasons recorded in the order dated 3.9.2016
10. A bare perusal of the reasons recorded by the Sessions Court indicates that the same would not be germane for the simple reason that the same takes into account of versions of witnesses who largely can be inferred as 'interested witnesses'. This Court while holding so is not as much on the reliability of the account of the said witnesses but on the sole reliance of the Sessions Court on only the said oral evidence afforded by such witnesses. The sole reliance of the Sessions Court exceeds the bounds of reasons when it holds such evidences to outweigh the mobile and call location which supports the contrary fact of the applicant to not be at the time and scene of offence. Furthermore, the Sessions Court has not afforded any reasons for disbelieving the alibi i.e. Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Aug 12 13:37:08 IST 2017 R/CR.RA/718/2016 JUDGMENT Ghanshyam BadilalSomani owner of SIMS METAL who had confirmed that the present applicant was at his factory for the entire day at GIDC Dared and more particularly when the alleged offence occurred at Village Masitiya. Additionally the Sessions Court has observed that the contrary accounts of oral statements of many witnesses supporting the versions of the applicant including the version of the alibi and the mobile location must not be taken into consideration since they were subsequently held and because the applicant was named in the FIR as an accused. This Court holds that the said ground to disbelieve evidences which were gathered on account of further investigation cannot be outweighed merely because the applicant was named in the FIR. If post investigation, there is no sufficient evidence to justify the arraignment, the said accused cannot be coerced to be subjected to trial only because the same was initially named. Such ground to arraign a person shall be against the principles of Criminal Jurisprudence which states that a person is to be deemed innocent unless proved guilty. It is needless to state that the proof of guilt finds its basis in evidences. An accused cannot be subjected to rigors of a trial despite Lack of evidences/ insufficiency of evidences which would justify his arraignment.
11. This Court has perused the decisions cited by the learned Senior Counsel Mr. Nanavati in the case of Suman Kantibhai Patel Vs. Amrutbhai Shambhubhai Patel of this Court. He also placed in the case of Reeta Nag Vs. State of West Bengal and Ors. reported in (2009) 9 Supreme Court Cases 129. This Court has also perused the provisions of Section 319 of the Code, which reads as under:
Page 6 of 9HC-NIC Page 6 of 9 Created On Sat Aug 12 13:37:08 IST 2017 R/CR.RA/718/2016 JUDGMENT "Power to proceed against other persons appearing to be guilty of offence
1. Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
2. Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
3. Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
4. Where the Court proceeds against any person under Sub-Section (1) then-
1. the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
2. subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
From the bare perusal of the aforesaid provisions of Section 319 of the Code of Criminal Procedure, if prima facie, if any evidence disclosed against the present applicant, then the trial Court should follow the provisions of Section 319 of the Code.
12. Relevant also would be the fact that while in the FIR, it has been stated that the applicant was armed with stick and Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Aug 12 13:37:08 IST 2017 R/CR.RA/718/2016 JUDGMENT dagger and such version is also confirmed by Kasam Hussain Haji who is the brother of the injured witness Abbas Husseinbhai Khafi (objector and revisioner before the Court of Session), further states that the applicant caused injury to his brother with stick and dagger blows, however the injured himself in his DD has stated that he was hit by the applicant with a pipe. It becomes a relevant aspect of consideration that the Sessions Court disbelieves the 11 witnesses accounts (relied upon by the Chief Judicial Magistrate in the order dated 31.3.2010 while accepting 'A' Summary qua the present applicant) including the alibi witness since same appears to be contradictory versions, however, chose to accept the visible contradictions between the version of dying declaration of the injured witness and his own version which has been supported only by other 'interested witnesses'.
13. For the aforesaid reasons this Court is of the opinion that the order impugned dated 3.9.2016 cannot be sustained. No justifiable reasons have been recorded by the Court of Sessions in its order dated 3.9.2016 to overrule the order dated 31.3.2010 passed by the Learned Chief Judicial Magistrate, Jamnagar accepting the 'A' summary qua the present applicant. The order impugned dated 3.9.2016 passed by the Sessions Court is accordingly set aside and order passed the learned Chief Judicial Magistrate, Jamnagar is hereby confirmed. However, it is made clear that trial Court is at liberty to proceed against any person during the course of trial, if it appears from the evidence that such person has committed any offence. This Criminal Revision Application is disposed of accordingly. Rule is made absolute to the aforesaid Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Aug 12 13:37:08 IST 2017 R/CR.RA/718/2016 JUDGMENT extent.
(Z.K.SAIYED, J.) YNVYAS Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat Aug 12 13:37:08 IST 2017