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CR.MA/1/2011 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1 of 2011
With
CRIMINAL
MISC.APPLICATION No. 164 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BHAVESHBHAI
MANUBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
Cri.Misc.Appln.No.1
of 2011
MR CHIRAG
B PATEL for
Applicant
MR JM PANCHAL, SPL.PP for Respondent No.1
MR MM
TIRMIZI for respondent No.1
MR ASIFKHAN I PATHAN for Respondent No.2
MR KG MENON, SR.ADV. with
AJAYKUMAR CHOKSI with MR VAIBHAV
A VYAS for Respondent No.3
Cri.Misc.Appln.No.164
of 2011
MR
BS PATEL for Applicant(s) : 1 - 3.
MR JM PANCHAL, SPL.PP for
Respondent No.1
MR ASIFKHAN I PATHAN for Respondent(s) : 2,
MR
KG MENON, SR.ADV. with AJAYKUMAR CHOKSI with
MR VAIBHAV A VYAS for Respondent No.3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 13/04/2011
COMMON
ORAL ORDER
These
two application under Sec.482 of the Code of Criminal Procedure have
been filed for quashing and setting aside order dated 4-6-2010
passed below Exs.288 and 345 in Sessions Case No.44 of 2008 by the
learned 2nd Additional District Judge, Anand, whereby the
present applicants were impleaded as accused under Section 319 of
the Code of Criminal Procedure, 1973 in trial.
Short
facts are that a complaint was lodged before Khambholaj Police
Station by the respondent No.2-Rahanaben, D/o Yusufbhai Yakubbhai
Vohra on 5-3-2008 about riots that broke out after the Godhra
incident. At the end of investigation, charge sheet was filed
against the accused without disclosing names of applicants. However,
subsequently, in pursuance of stay of proceedings of ten criminal
trial including the present case looking to the sensitivity of
Godhra riot case, investigation was entrusted to Special
Investigation Team (‘SIT’ for short) constituted by the Hon’ble
Supreme Court. SIT started investigation and charge sheet was filed
against 37 accused including 7 absconding accused and trial
commenced against 37 accused. During the course of trial and after
the evidences of witnesses were recorded, applications Exs.288
and 345 have been filed by the
complainant in Sessions Case No.44 of 2008 on behalf of witnesses
seeking to join 13 proposed accused as accused. Upon hearing the
learned advocates appearing for the respective parties, learned 2nd
Additional District Judge, Anand, partly allowed both the
applications joining the applicants as accused under Section 319
Cr.P.C. Being aggrieved by the said order, present applications
have been preferred.
As
both the applications arise out of common order passed by the
learned Judge in same Sessions Case, both the applications were
heard together and are being decided by this common judgemnt.
Heard
learned advocate, Mr.B.S.Patel for the applicants, learned Special
Public Prosecutor, Mr.J.M.Panchal for the respondent No.1, learned
advocate, Mr.M.M.Tirmizi, for the witnesses who have submitted the
applications in the trial court, learned advocate, Mr.Asifkhan
I.Pathan for the respondent No.2 and learned Senior Advocate,
Mr.K.G.Menon with learned advocates, Mr.Ajaykumar Choksi and
Mr.Vaibhav A Vyas for the respondent No.3.
It
is submitted by learned advocate, Mr.B.S.Patel, for the applicants
that though names of the present applicants were not disclosed by
the witnesses in their earlier statements, they disclosed their
names in Court without attributing any specific role with ulterior
motive. It is further submitted that there are major contradictions
in the evidence of witnesses who disclosed names of the present
applicants before the trial court leading to a conclusion that there
is no possibility of conviction and, therefore, the order passed by
the trial court is bad in law and hence, requires to be quashed and
set aside. Mr.Patel has also submitted that when the offence was
registered, names of the present applicants were not disclosed
before the Investigating Officer or before the SIT. However, after
long lapse of more than 7-8 years, the witnesses have, for the first
time, disclosed before the Court the names of present applicants
with other accused with ulterior motive. It is further submitted
that there was no pressure or fear or threat for the witnesses to
have disclosed these things before the SIT. However, they did not
disclose their names after long lapse of time but for the first time
disclosed before the court while recording the evidence and,
therefore, their evidence qua the present applicants should not be
believed but should be discarded at the threshold. The trial court
has committed a grave error in not considering these aspects and
allowing the applications.
It
is further submitted by Mr.Patel that applications were not
submitted by the State of Gujarat or the SIT but were presented by
the witnesses in which endorsement was made by the Government
Pleader, who was in charge of this case, which speaks volume about
the ulterior motive of the witnesses in implicating the applicants
with the serious crime and, therefore also, the trial court has
committed grave error. It is further submitted that if it appears to
the Court on perusing the applications submitted by the witnesses
that some persons might have been involved in the crime and just for
satisfying them, court cannot implead them as accused.
It
is further submitted by Mr.Patel that Zahira, who is the victim and
who has lost her father in the incident, has specifically stated
that present applicants are not involved in the crime which has not
been considered by the trial court. According to him, trial court
has committed a grave error in discarding the said statement. It is
therefore requested that the impugned order passed by the trial
court requires to be quashed and set aside.
He
has relied on the following reported judgments:
i)
(2005) 11 Supreme Court Cases page 182 in the case of Kailash
Dwivedi Vs. State of M.P. and another;
ii)(2005)12
Supreme Court Cases page 432 in the case of Kavuluri Vivekananda
Reddy and another Vs. State of A.P. and another;
iii)(2000)3
Supreme Court Cases page 262 in the case of Michael Machado and
another Vs. Central Bureau of Investigation and another;
iv)(2004)7
Supreme Court Cases page 792 in the case of Krishnappa Vs. State of
Karnataka;
v)AIR
2008 Supreme Court page 1564 in the case of Kailash Vs. State of
Rajasthan and another;
vi)(2009)2
Supreme Court Cases page 696 in the case of Lal Suraj alias Suraj
Singh and another Vs. State of Jharkhand;
vii)(2009)3
Supreme Court Cases page 329 in the case of Brindaben Das and others
Vs. State of West Bengal;
viii)(2009)16
Supreme Court Cases page 46 in the case of Sarabjit Singh and
another Vs. State of Punjab and another;
ix)
(2009)14 Supreme Court Cases page 25 in the case of Ram Singh and
Others Vs. Ram Niwas and another; and
x)2006
Cri.L.J. Page 3538 in the case of Jagdish Vs. State and others.
Learned
Special Public Prosecutor, Mr.J.M.Panchal for the respondent
No.1-State and learned Senior Advocate, Mr.K.G.Menon with learned
advocates, Mr.Ajaykumar Choksi and Mr.Vaibhav A.Vyas, taking this
Court through the affidavit filed by the State, have supported the
impugned order passed by the trial court. Learned Senior Advocate,
Mr.Menon, has relied on a decision of this Court in the case of
Dahyabhai
Tribhuvandas Patel Vs. State of Gujarat & Ors. reported
in 2011
Cri.L.J. Page 367
and urged to dismiss the
applications.
Learned
advocate, Mr.M.M.Tirmizi, who appears on behalf of the witnesses,
who have submitted the applications in the trial court, has taken
this Court through various aspects of the case and submitted that
all the witnesses have narrated the incident in their own
perspective. He has brought to the notice of the Court that as per
the depositions of other witnesses, Zahira was not present at the
particular place where incident is alleged to have taken place and,
therefore, at this juncture, deposition of Zahira would not be
helpful to the prosecution and it can only be evaluated only while
deciding the trial and according to him, no illegality has been
committed by the trial court in the impugned order and hence, he
also urged for dismissal of these applications.
This
Court has minutely gone through the impugned order passed the trial
court along with the evidence of witnesses recorded during the
course of trial as well as the judgments relied on by the learned
counsel for the respective parties. There cannot any dispute
regarding the principles laid down in the judgments cited by the
learned advocate for the parties. Keeping in mind the principles
laid down therein, this Court proceeds further.
It
was found by the trial court that present case is not an ordinary
case of riot or arsenal but one of the cases which has occurred in
the aftermath of Godhra carnage in which three persons were burnt to
death and houses of several persons were put on fire. It is required
to be noted that in this case, 55 witnesses have already been
examined by the trial court including Investigating Officer and
after evaluating the entire evidence of witnesses and other aspects,
the trial court has passed the order. At this juncture, it is too
early to come to any conclusion that because of some contradiction
in the evidence of witnesses, conviction is not likely to be imposed
on the present applicants. All other aspects requiring
appreciation of evidence including the aspect as to whether evidence
of Zahira would be of helpful to any side or not can only be
evaluated at the end of trial. As stated above, this Court, at this
stage, cannot appreciate the evidence appearing on record in great
detail. In view of the above, as the facts the present case are
totally different from the facts of the cases cited by the learned
advocate for the applicants, applicants would not be entitled to any
benefit out of those judgments cited by their learned advocate.
A
submission was also made by learned advocate,
Mr.B.S.Patel, for the applicants that in the case Dahyabhai
Tribhuvandas Patel (supra),
contradictions were not proved while in the present case,
contradictions are proved through the depositions of Investigating
Officer and, therefore, the ratio laid down in the said case will
not be applicable to the facts of the present cases.
There
is no substance in this argument also as trial court has discussed
at great length the evidence on record and gave elaborate reasons as
to why names of the accused were not disclosed at the earlier stage
but were involved thereafter. It was observed by the trial court
that as other persons have not committed any overact but were simply
present in the mob, allegations against those persons were dismissed
and they were not arraigned as an accused. As far as this part of
observations of trial court is concerned, neither the State nor the
SIT has taken it further by challenging the same and, therefore,
this Court is not expressing any opinion on these observations.
It
is pertinent to note that it was contended in the applications that
names of applicants which have been disclosed in the evidence are
suggestive of the fact that as the applicants had not agreed to part
with the money, just to bring pressure and teach lesson, names of
applicants had been disclosed in the evidence. However, no such
submission has been made during the course of arguments.
It
was observed by the trial court in para 16 of the judgment that the
Hon’ble Apex Court, considering the aspects of fair trial and to
ensure free deposition of witnesses, appointed SIT, issued
guidelines and directions which was indicative of the fact that
investigation conducted at the initial stage was not of that quality
so as to bring all the accused to books. It was further observed
that considering the incident which had occurred in 2002, the
witnesses, who are victims of incident, must have been scared,
petrified and frightened to state anything before the investigating
agency or to depose before the Court and even before the
S.I.T. sensing danger or the consequences of their statements at the
back of their minds and, therefore, it could be for those reasons
that no statement was made implicating the persons as accused. It
was therefore held by the court below that naming the proposed
accused now cannot be said to be an improvement or unnatural act of
the witnesses, but the witnesses might have mustered courage to
depose before the Court and, therefore, submission raised by the
learned advocate for the defence relying on improvement and the
contradictions were not sustained. It was also further observed that
in order to see that no culprits escape from the trial and no
innocent persons are wrongly arrayed by the Court, it became the
duty of the Court under section 319 of the Code to pass the impugned
order.
If
any application is submitted by any witness or the prosecution or by
any person to meet with the justice on feeling that names of persons
whose names were not disclosed in the charge sheet and who are the
real culprits are required to be prosecuted then Court can even suo
motu take necessary steps for initiating action against them.
In
a similar fact situation, this Court in Dahyabhai
Tribhuvandas Patel (supra) has held
in paras 12 and 13 as under:
“12.
Thus, the above directions have significant bearing on the role of
SIT in further
investigation of crime. Even if what is recorded in FIR and charge
sheets filed subsequent thereto are seen, it appears that it was not
a case of ordinary riot, but in the aftermath of Godhra incident,
mob in the town of Visnagar had indulged in arsoning and looting
houses of a particular community and eleven persons were brutally
killed. That issuance of directions by the Apex Court in the above
case of National
Human Rights Commission (supra),
is indicative of the fact that local investigation had failed to
bring the culprits on book. The witnesses were scared,
petrified and frightened to state anything before the investigating
agency or to depose before the Court. Only after constitution of SIT
and a Special Court, some of the witnesses including the complainant
have mustered courage and started stating certain facts about the
incidents in question before
the SIT. However, still sense of lurking danger about the
consequences of their statements before the investigating agency or
deposition before the Court was at the back of their mind and for
sometime petrified by their suffering in the past and apprehensive
of backlash, even before SIT officers, no statement was made
implicating the appellant accused. The above conduct of the
complainant and other witnesses cannot be said to be unnatural or
can be termed as contradictory to or improvement over earlier
statement. On further investigation, the then Investigating
Officer, Police Inspector – Mr. M.K. Patel was also added as
an accused and two different charge sheets were filed and
four other persons were added as an accused. However, before the SIT
none of the witnesses stated anything about the appellants herein
and according to SIT, since no
reliable material or evidence was disclosed, they were not arraigned
as accused persons. It is not in dispute that the SIT consists of
persons of State Police Force and for the purpose of further
investigation, they have to take assistance from the local police
also. In the above circumstances, failure or unwillingness on the
part of witnesses to make a statement before the officer of the SIT
cannot be said to be lacuna. When the witnesses mustered courage and
found themselves secured after the order passed in the case of
National Human
Rights Commission (supra),
they had deposed before the Special Court presided by the judicial
officer appointed by the High Court as per directions of the Apex
Court, disclosing the role of the appellant accused in instigating
the mob who had indulged in arsoning, looting and
murdering people of a particular community. The learned Judge has
gone through the deposition of eight witnesses and considering the
same in light of the provisions of Section 319 of the Code and has
passed a reasoned order. The above peculiar facts and circumstances
of this case and deposition
of the witnesses during the course of trial can certainly be said to
be an evidence and when the learned Trial Judge has exercised a
sound judicial discretion, this Court while exercising powers under
provisions of Section 482 of the Code is in agreement with the order
impugned passed by the learned Judge and the impugned order cannot
be said to be in any manner contrary to the law laid down by the
Apex Court in the decisions relied on and referred to by the learned
Counsels for the parties.
13.
Considering the peculiar facts and circumstances of the case and
exercising powers under Section 319 of the Code and directions
issued in the case of National
Human Rights Commission (supra), this
Court finds that nature of evidence appearing to the learned Judge
for exercising his sound judicial
discretion for invoking powers under Section 319 of the Code cannot
be said to be illegal and therefore, no interference is called for
in exercise of powers under Section 482 of the Code of the Criminal
Procedure, 1973 by this Court. ”
Applying
the above ratio to the facts of the present case, on going through
the evidence of witnesses and after considering the entire evidence
on record, this Court at this stage cannot come to any conclusion
whether any contradictions are proved by the Investigating Officer
or not especially when trial court has come to the conclusion
invoking powers under Sec.319 Cr.P.C. that present applicants are
required to be prosecuted and issued summons.
It
is a settled legal position that under Section 482 of Cr.P.C., the
statutory power should be exercised by the Court sparingly and in
the rarest of rare cases when it is found that there is abuse of
process of law or any patent illegality having committed by the
trial court. As discussed above, in this case, the trial court has
exercised its discretion under Sec.319 Cr.P.C. after considering the
evidence on record and upon affording full opportunity of hearing to
the learned advocates appearing for the respective parties. There is
no abuse of process of law or any illegality as having committed by
the trial court and hence, in the opinion of this Court, inherent
power should not be exercised under Sec.482 of Cr.P.C. The
applicants will get all the opportunities to place their defense
during the course of trial. Thus, both the applications are required
to be dismissed.
Both
the applications are dismissed. Notices discharged.
Observations
by this Court in this judgment being made for the purpose of
deciding these applications will not prejudice the parties in trial.
Office
shall keep a copy of this judgment in each matter.
(M.D.SHAH,J.)
radhan
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