Gujarat High Court Case Information System
Print
CR.RA/49/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 49 of 2010
=========================================================
PRAKASH
K BAVLEKAR S/O KRISHNA BAVLEKAR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
MR
Sunil Mehta , counsel with MS.P J.JOSHI for Applicant(s) : 1,
Mr
Shivang Shukla, Addl,.PUBLIC PROSECUTOR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 05/03/2010
ORAL
ORDER
1. In
this Revision Application, the petitioner who is tried under various
provisions of NDPS Act namely, Sections 22 and 29 read with section 8
[c] of the NDPS Act and under section 120-B of Indian Penal Code, has
challenged the order dated 18.1.2010 passed by the learned
Addl.Principal Judge, Court No.2, Ahmedabad rejecting the
application for discharge on the ground that the co-accused in the
case one Manoj Gohil who has passed away and is no more to be
tried along with the petitioner and otherwise also the co-accused’s
statement has no value so far as the evidence is concerned. It is
further submitted that reliance was placed by the learned Judge on
the statement of the said Manoj Gohil who is no more to be tried is
contrary to law as decided by the Hon’ble Apex Court in various
decisions. Learned Counsel further submitted that though it is
right that scope of power to be
exercised by the court while deciding application for discharge is
governed by a decision of the Hon’ble Apex Court (AIR 1998 SC 3257),
in this case, there is no iota of evidence so far as the conspiracy
is concerned and, therefore, the impugned order deserves to be
quashed and set aside.
2. I
have also heard the learned APP Mr Shivang Shukla appearing for the
respondent-State. The learned APP, under the instructions of the
DRI submits that the charge is already framed after the order dated
18.1.2010 is passed, and there is a very limited scope for the
learned Judge conducting the trial to look into the nature of
evidence in light of the application of discharge made by the
accused. It is submitted that it is not necessary for the learned
Sessions Judge to scrutinise the evidence in detail as only prima
facie conclusion is arrive at. Learned APP further submits that
considering the nature and gravity of the offence for which the
petitioner is tried under the NDPS Act, the order passed by the
learned Judge rejecting the application for discharge of the accused
is just and proper and it does not require any interference by this
court in exercise of provisions under section 397 read with section
401 and 482 of the Code of Criminal Procedure. In support of his
arguments, the learned APP has relied upon a decision dated 5.4.2005
by this Court (Coram: M.D. SHAH, J.) in Criminal Revision
Application No.38 of 2002 wherein the court has allowed the
Revision Application relying upon a
decision of the Hon’ble Apex Court in the case of OM
WATI (SMT) AND ANOTHER v. STATE
Through Delhi Administration & Ors., reported in 2001 SCC
(Cri.) 685. In the said decision, the Apex Court has held in
paragraphs 7 and 8 as under:
“Now
no reasons are required to be recorded when the charges are framed
against the accused persons. At the stage of passing the order in
terms of section 227 of the Code, the court has merely to peruse the
evidence in order to find out whether or not there is sufficient
ground for proceeding against the accused. If upon consideration the
court is satisfied that a prima facie case is made out against the
accused, the Judge must proceed to frame charge in terms of section
228 of the Code. Only in a case where it is shown that the evidence
which the prosecution proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is challenged in
cross-examination or rebutted by defence evidence cannot show that
the accused committed the crime, then and then alone the court can
discharge the accused. The court is not required to enter into
meticulous consideration of evidence and material placed before it at
this stage.”
4. Having
heard the learned counsel appearing for the parties, I am of the
opinion that no illegality is committed by the learned Addl.Principal
Judge, Court No.2 while rejecting the application for discharge of
the accused. Hence after considering the fact of the death of the
co-accused, the learned trial Judge has considered certain factors
prima facie, namely, the reference to the truck driver- Subhash
Singh and also the co-accused being tried together with the
petitioner and the mobile number which revealed the contact with
the present applicant-accused and the print out pertaining to such
mobile along with panchnama dated 28.7.2006 are required to be
considered in detail at the stage of trial.
5. In
my opinion, the above circumstances at the stage of discharge
application considered by the learned trial Judge cannot be said to
be in any manner contrary to the decisions relied upon by the
learned Advocate for the applicant.
6. In
view of the above, I do no find any substance in this application of
the applicant who is involved in serious crimes for which he is to be
tried by the competent court of law.
7. No case is made out
and this petition stands disposed of accordingly.
[ANANT
S. DAVE, J.]
msp
Top