CR.MA/15506/2007 15/ 17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 15506 of 2007 In CRIMINAL APPEAL No. 1324 of 2007 With CRIMINAL MISC.APPLICATION No. 534 of 2008 In CRIMINAL APPEAL No. 17 of 2008 With CRIMINAL MISC.APPLICATION No. 535 of 2008 In CRIMINAL APPEAL No. 18 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. 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? ========================================================= VITHALBHAI D PANDYA - Applicant(s) Versus CENTRAL BUREAU OF INVESTIGATION & 2 - Respondent(s) ========================================================= Appearance : MR YV BRAHMBHATT for Applicant(s) : 1,PARTY-IN-PERSON for Applicant(s) : 1, MR HARIN P RAVAL for Respondent(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 2, None for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/01/2008 ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE M.R. SHAH)
1. Criminal
Misc. Application No.15506 of 2007 is filed by the applicant ý
third party in Criminal Appeal No. 1324 of 2007 to condone delay of
188 days in preferring the criminal appeal under Section 34 of the
POTA, 2002 against the final judgment and order passed by the Special
Court (POTA) dated 25.06.2007 in POTA Case No. 10 of 2003.
Criminal
Misc. Application No.535 of 2008 is filed by the very applicant ý
third party in Criminal Appeal No.18 of 2008 to condone delay of 352
days in preferring the criminal appeal under Section 34 of the POTA,
2002 against the order dated 18.12.2006 passed by the Special Court
(POTA) below Exh. 855 in POTA Case No.10 of 2003.
Criminal
Misc. Application No.534 of 2008 is also filed by the very applicant
ý third party in Criminal Appeal No.17 of 2008 to condone delay of
254 days in preferring the criminal appeal under Section 34 of the
POTA, 2002 against the order dated 26.03.2007 passed by the Special
Court (POTA) below Exh. 898 in POTA Case No.10 of 2003.
2. That
on 26th March, 2003 one Shri Haren Pandya, Ex-Home
Minister for the State of Gujarat while going for his morning walk at
Law Garden, Ahmedabad City was shot at while parking his car near Law
Garden and when removed to the hospital, Shri Pandya was found to
have scummed to the said injuries and was declared dead. On the basis
of the complaint lodged by Shri Janak Singh Khusal Singh Parmar, FIR
being 1st C.R.No.272 of 2003 was registered at Ellisbride
Police Station on 26.03.2003 i.e. on the very same day and initial
investigation for two days remained with Ellisbridge Police Station.
With the consent accorded by the Government of Gujarat and the
consent of the Government of India, the case was transferred to
Central Bureau of Investigation ý respondent No.1 herein and as per
practice of C.B.I., same was re-registered as
RC.2(S)/2003-SIU.I/SIU.II/CBI/ New Delhi on dated 28.03.2003.
3. In
another incident of 11th March, 2003, one Shri Jagdish
Tiwari, a VHP leader of Ahmedabad was fired upon. He was admitted to
the hospital for treatment and one bullet was recovered from his
body. He lodged complaint with 1st P.I., Bapunagar Police
Station being FIR – 1st C.R.No.101/2003 for the offences
punishable under Sections 307, 34 of the Indian Penal Code and
Section 25(1)(a)(b) of the Arms Act. Subsequently, with the consent
accorded by the State Government vide notification dated 28.04.2003
and Government of India vide Cabinet Secretariat dated 29.05.2003,
the said case was also transferred to C.B.I. and same was
re-registered as RC.5(S)/2003 ý SIU.I/CBI/ New Delhi on 02.06.2003.
4. Two
separate cases registered by the local police station relating to the
life of attempt of Shri Jagdish Tiwari and murder of Shri Haren
Pandya were re-registered with C.B.I. From the evidence collected
during the investigation from the said two cases allegedly revealed
that the attempt on the life of Jagdish Tiwari and murder of Haren
Pandya were not isolated incidents but part of the same transaction
and in pursuance of a well designed conspiracy, they were done.
During the course of investigation when it was revealed to the
Investigating Officer that the conspiracy to attempt to murder of
Shri Jagdish Tiwari allegedly disclosed a larger conspiracy to strike
terror amongst the people or any section of people in Gujarat by
using bombs or explosive substances or firearms as retaliation to the
indiscriminate murders and atrocities caused on the innocent Muslims
in Gujarat, the provisions of Prevention of Terrorism Act, 2002 (for
short ‘POTA’) was invoked in the case and on 11.06.2003 an intimation
was given to the concerned Court for adding sections of POTA in the
existing sections of the FIR. Likewise, in the case of murder of
Haren Pandya also, intimation was given by the Investigating Officer
of adding the provisions of POTA in the FIR to the court of learned
Chief Judicial Magistrate and learned Principal Judge, City Civil
Court, Ahmedabad on 02.06.2003.
5. As
both the incidents were alleged to be part of the same transaction
and having well designed conspiracy, one charge-sheet for both the
incidents came to be submitted by the C.B.I. against the accused
persons. All the accused against whom charge-sheet came to be filed
by the C.B.I. were put to trial by the learned Special Judge (POTA)
Court, Ahmedabad.
6. It
appears that after the charge-sheet came to be filed investigation
was over and the accused persons against whom charge-sheet came to be
filed were tried by the learned Special (POTA) Court, the applicant
herein ý third party and father of the deceased Harin Pandya
submitted one application below Exh.855 inter-alia urging further
probe of C.B.I. in the alleged murder of Harin Pandya to get the
truth of the matter with the allegation of C.B.I. not having
investigated on the crucial aspects of this alleged murder, giving
instances of averred version of the P.A. of late Shri Harin Pandya
and non-finding of pocket diary, shoes and wallet of the deceased and
also on the ground that some needed crucial witnesses have not been
examined by the prosecution. The said application came to be
dismissed by the learned Special (POTA) Court vide order dated
18.12.2006.
7. That
thereafter trial of the aforesaid POTA case came to be proceeded
further and again the applicant herein ý third party ý father of
the deceased of Harin Pandya submitted another application dated
27.03.2007 below Exh.898 in Special POTA Case No.10 of 2003 almost on
the similar ground mentioned in the earlier application below Exh.855
and reiterated his request for further investigation and
interrogating the persons named in the application so as to reach the
truth of the matter for this being case of political murder. It was
alleged that murder of late Harin Pandya was political murder and at
the instance of respondent No.3 herein and after re-investigation
respondent No.3 be arraigned as accused. Said application below
Exh.898 also came to be rejected by the learned Special (POTA) Court
vide order dated 26.03.2007. It appears that thereafter nothing was
done by the applicant ý third party and trial came to be proceeded
further and the said trial ended in conviction and the learned
Special Judge (POTA) Court by judgment and order dated 25.06.2007
convicted the accused persons for the offences punishable under the
POTA 2002 as well as under Sections 302, 120-B of the Indian Penal
Code and other relevant provisions for which they were tried. That
thereafter, after POTA case came to be disposed of finally and ended
in conviction, the applicant herein ý third party has preferred the
aforesaid three appeal challenging the order dated 18.12.2006 passed
below Exh.855; order dated 26.03.2007 passed below Exh.898 and final
judgment and order dated 25.06.2007 passed in POTA Case No.10 of
2003. As in all the aforesaid appeals, there is delay, present three
applications are filed joining following respondents :
1. Central
Bureau of Investigation, Block IV, C.G.O. Complex, Lodhi Road, New
Delhi ý 110003
2. State
of Gujarat, Notice to be served through The Chief Secretary, Gujarat
State, Sachivalaya, Gandhinagar
3. Shri
Narendrabhai Modi, Chief Minister, Gujarat State, Sachivalaya,
Gandhinagar
8. Before
further considering the applications on merits, we are of the
prima-facie opinion that respondent No.3 is not required to be heard
at this stage; has no locus and is not required to be continued as
party respondent in the present proceedings at this stage. Therefore,
we called upon Mr.Barot, learned Senior Advocate to make submissions
with respect to continuing respondent No.3 as party respondent in the
present proceedings and whether he is required to be heard at this
stage and whether he has any locus at this stage.
9. Mr.Barot,
learned Senior Advocate appearing on behalf of the applicant has
submitted that according to the petitioner respondent No.3 is main
accused on whose behest, to take political revenge deceased Haren
Pandya son of the applicant has been murdered. It is also submitted
by him that though some important witnesses were available such as
wife of deceased Haren Pandya they were not examined by the
investigating agency deliberately and that certain important
documentary evidence has not been considered by the investigating
agency ý C.B.I. and real accused persons are not booked and/or
against real accused there is no investigation at all. According to
Mr.Barot, as there is prima facie case against respondent No.3 for
arraying him as an accused, before passing any order for
re-investigation and/or proceeding against him as an accused, he is
required to be heard and therefore, presence of accused no.3 is
required and it will be appropriate that accused no.3 is heard even
at this stage.
10. Mr.Harin
Raval, learned Special Public Prosecutor appearing on behalf of
C.B.I. – Investigating Agency has submitted that looking to the
scheme of Code of Criminal Procedure, respondent No.3 has no locus at
this stage and therefore, respondent No.3 could not have been arrayed
in the present proceedings. It is submitted that the prayer of the
applicant before the learned trial Court and even before this Court
is for re-investigation against respondent No.3 making allegations
that respondent No.3 is an accused and he is required to be
prosecuted. It is submitted that looking to the scheme of provisions
of the Code of Criminal Procedure till an appropriate charge-sheet is
filed after investigation / re-investigation and/or cognizance is
taken by the learned Magistrate, accused has no locus and is not
required to be heard. It is submitted that therefore, respondent
No.3 is not required to be heard at this stage and is to be deleted.
To continue respondent No.3 in the present proceedings will be
contrary to the scheme of Code of Criminal Procedure.
11. Mr.Kamal
Trivedi, learned Advocate General has submitted that he appears on
behalf of respondent No.3 as he has been served with advance copies
of the present applications and the appeals. He has raised
preliminary objections against continuing respondent No.3 in the
present proceedings. It is submitted by him that the applications
before the learned trial Court were for re-investigation and
examination of certain witnesses and such applications were given
after substantial evidence were recorded. It is submitted that even
respondent No.3 was not party to the proceedings before the learned
trial Court and respondent No.3 has been arrayed in the present
proceedings with mala-fide intention; he could not have been
arrayed as an accused in the present proceedings, therefore, he has
to be deleted. Mr.Kamal Trivedi, learned Advocate General has
submitted that as per Rule 32A of the High Court Rules and Form-B
even it was the duty of the Office to raise objections joining
respondent No.3 in the present proceedings as even as per Rule 32A
and Form -B only those persons who were there in the trial Court can
be joined in the present proceedings before this Court and as names
of the parties did not tally, therefore, Office was required to take
objections. Mr.Trivedi, has taken us to various provisions of the
POTA more particularly Sections 2(a)(i), 29 and 49 of the POTA Act.
He has also taken us to various provisions under the Code of Criminal
Procedure more particularly Section 2(d), Section 2(r) and Section
173 of the Cr.P.C. Relying upon aforesaid provisions of the POTA and
Code of Criminal Procedure, he has requested to delete name of
respondent No.3 from the present proceedings. He has also relied upon
the decision of the Hon’ble Supreme Court in the case of Rambhai
Nathabhai Gadhvi and Ors. v/s. State of Gujarat reported
in (1997) 7 SCC 744 by further submitting that till
cognizance is taken by the Court / Magistrate there is no question of
hearing the accused.
12. Heard
the learned Advocates appearing on behalf of the respective parties.
13. At
the outset, it is required to be noted that as per this Court
respondent No.3 has no locus at this stage and he is not required to
be heard, therefore, this Court is not required to hear learned
Advocate General appearing on behalf of respondent No.3 and more
particularly even as this Court has not issued notice upon
respondent No.3. However, as learned Advocate General has been served
with advance copies of the present applications and has made
submissions, we have noted his submissions recorded herein above and
recording the submissions of the learned Advocate General may not
construed that we have heard respondent No.3 and/or respondent No.3
has any locus as for the reasons stated herein after respondent No.3
is not required to be heard at this stage and has no locus, he is
required to be deleted at this stage from the present proceedings.
14. It
is required to be noted that what is challenged in the present
proceedings are appeals under Section 34 of the POTA challenging the
order dated 18.12.2006 passed below Exh.855 and order dated
26.03.2007 passed below Exh.898 rejecting the applications of the
applicant which were given for re-investigation and examination of
certain witnesses by making allegations that his son has been
murdered for taking political revenge and against real accused there
is no proper investigation and are not booked; with further
allegation that on behest of respondent No.3 his son has been
murdered. It is also required to be noted and it appears that the
applications were given by the applicant after substantial evidence
was recorded by the learned trial Court. Therefore, respondent No.3
can be said to be alleged prospective accused as per the applicant.
Now looking to the various provisions and the scheme of Code of
Criminal Procedure till an appropriate report / charge-sheet is filed
against the accused after investigation / re-investigation and/or
Magistrate takes cognizance there is no provision in the Code of
Criminal Procedure to hear the accused. Mr.Barot, learned Senior
Advocate appearing on behalf of the applicant has failed to satisfy
this Court and/or has failed to show any provision under the Code of
Criminal Procedure by which the Court is required to hear the accused
before the charge-sheet is filed and/or cognizance is taken by the
learned Magistrate. His only contention is that there is sufficient
material / evidence against accused no.3 and he is required to be
prosecuted as an accused and there is merits in the applications.
15. It
is to be noted that respondent No.3 was not party before the learned
trial Court and till charge-sheet is filed after investigation /
re-investigation he has no locus. As stated herein above, the
applications of the applicant were for re-investigation and
examination of certain witnesses making allegations against
respondent No.3 and to array him as an accused. Assuming that such
applications are / were allowed then consequence would be to
re-investigate the case and after charge-sheet if Investigating
Agency finds some material against some persons, charge-sheet is
required to be filed and thereafter, they are to be prosecuted as an
accused and till that stage that persons / accused has no locus. We
fail to appreciate why and for what purpose respondent No.3 is joined
in the present proceedings which is only at the stage of considering
the applications of the applicant for re-investigation. According to
us at this stage respondent No.3 has no locus and is not required to
be heard and he could not have been joined as party respondent to the
present proceedings being alleged prospective accused as according to
us considering various provisions and scheme of Code of Criminal
Procedure he is not be heard. Therefore, we do not think that
respondent No.3 is to be continued in the present proceedings and is
required to be heard at this stage. Even considering the decision of
the Hon’ble Supreme Court in the case of Rambhai (supra)
till cognizance is taken there is no question of hearing the accused.
As stated above, even as per the C.B.I. – Investigating agency
respondent No.3 could not have been arrayed as accused in the present
proceedings and is not required to be heard at this stage. Even at
the stage of Section 319 of the Code of Criminal Procedure till
cognizance is taken by the learned trial Court and/or any
charge-sheet is filed accused is not required to be heard.
16. Under
the circumstances and for the reasons stated above, we direct to
delete respondent No.3 from the present proceedings i.e. in all the
three applications as he is not required to be heard at this stage
and he could not have been arrayed / joined as party respondent in
the present proceedings. It is made clear that we have not expressed
any opinion on merits while considering to delete respondent No.3
from the present proceedings in favour of any of the parties and
respondent No.3 is ordered to be deleted from the present proceedings
as according to us he has no locus at this stage; he is not required
to be heard at this stage and he could not have been joined as
respondent No.3 in the present proceedings. Now the applications for
condonation of delay will be heard on its own merits after deleting
respondent No.3 in the present proceedings.
[J.R.Vora,J.]
[M.R.Shah,J.]
satish