{"id":12842,"date":"2008-01-30T00:00:00","date_gmt":"2008-01-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vithalbhai-vs-central-on-30-january-2008"},"modified":"2016-12-07T22:04:17","modified_gmt":"2016-12-07T16:34:17","slug":"vithalbhai-vs-central-on-30-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vithalbhai-vs-central-on-30-january-2008","title":{"rendered":"Vithalbhai vs Central on 30 January, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Vithalbhai vs Central on 30 January, 2008<\/div>\n
Bench: J.R.Vora And Shah, M.R. Shah<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nCR.MA\/15506\/2007\t 15\/ 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 15506 of 2007\n \n\nIn\n\n\n \n\nCRIMINAL\nAPPEAL No. 1324 of 2007\n \n\nWith\n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 534 of 2008\n \n\nIn\n\n\n \n\nCRIMINAL\nAPPEAL No. 17 of 2008\n \n\nWith\n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 535 of 2008\n \n\nIn\n\n\n \n\nCRIMINAL\nAPPEAL No. 18 of 2008\n \n\n \n\n\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE J.R.VORA  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE M.R. SHAH\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nVITHALBHAI\nD PANDYA - Applicant(s)\n \n\nVersus\n \n\nCENTRAL\nBUREAU OF INVESTIGATION & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nYV BRAHMBHATT for\nApplicant(s) : 1,PARTY-IN-PERSON for Applicant(s) : 1, \nMR HARIN P\nRAVAL for Respondent(s) : 1, \nPUBLIC PROSECUTOR for Respondent(s) :\n2, \nNone for Respondent(s) :\n3, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE J.R.VORA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE M.R. SHAH\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 30\/01\/2008 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE M.R. SHAH)<\/p>\n
1.\t\tCriminal
\nMisc. Application No.15506 of 2007 is filed by the applicant \u00fd
\nthird party in Criminal Appeal No. 1324 of 2007 to condone delay of
\n188 days in preferring the criminal appeal under Section 34 of the
\nPOTA, 2002 against the final judgment and order passed by the Special
\nCourt (POTA) dated 25.06.2007 in POTA Case No. 10 of 2003.\n<\/p>\n
\t\tCriminal
\nMisc. Application No.535 of 2008 is filed by the very applicant \u00fd
\nthird party in Criminal Appeal No.18 of 2008 to condone delay of 352
\ndays in preferring the criminal appeal under Section 34 of the POTA,
\n2002 against the order dated 18.12.2006 passed by the Special Court
\n(POTA) below Exh. 855 in POTA Case No.10 of 2003.\n<\/p>\n
\t\tCriminal
\nMisc. Application No.534 of 2008 is also filed by the very applicant
\n\u00fd  third party in Criminal Appeal No.17 of 2008 to condone delay of
\n254 days in preferring the criminal appeal under Section 34 of the
\nPOTA, 2002 against the order dated 26.03.2007 passed by the Special
\nCourt (POTA) below Exh. 898 in POTA Case No.10 of 2003.\n<\/p>\n
2.\t\tThat
\non 26th March, 2003 one Shri Haren Pandya, Ex-Home
\nMinister for the State of Gujarat while going for his morning walk at
\nLaw Garden, Ahmedabad City was shot at while parking his car near Law
\nGarden and when removed to the hospital, Shri Pandya was found to
\nhave scummed to the said injuries and was declared dead. On the basis
\nof the complaint lodged by Shri Janak Singh Khusal Singh Parmar, FIR
\nbeing 1st C.R.No.272 of 2003 was registered at Ellisbride
\nPolice Station on 26.03.2003 i.e. on the very same day and initial
\ninvestigation for two days remained with Ellisbridge Police Station.
\nWith the consent accorded by the Government of Gujarat and the
\nconsent of the Government of India, the case was transferred to
\nCentral Bureau of Investigation \u00fd  respondent No.1 herein and as per
\npractice of C.B.I., same was re-registered as
\nRC.2(S)\/2003-SIU.I\/SIU.II\/CBI\/ New Delhi on dated 28.03.2003.\n<\/p>\n
3.\t\tIn
\nanother incident of 11th March, 2003, one Shri Jagdish
\nTiwari, a VHP leader of Ahmedabad was fired upon. He was admitted to
\nthe hospital for treatment and one bullet was recovered from his
\nbody. He lodged complaint with 1st P.I., Bapunagar Police
\nStation being FIR – 1st C.R.No.101\/2003 for the offences
\npunishable under Sections 307, 34 of the Indian Penal Code and
\nSection 25(1)(a)(b) of the Arms Act.  Subsequently, with the consent
\naccorded by the State Government vide notification dated 28.04.2003
\nand Government of India vide Cabinet Secretariat dated 29.05.2003,
\nthe said case was also transferred to C.B.I. and same was
\nre-registered as RC.5(S)\/2003 \u00fd  SIU.I\/CBI\/ New Delhi on 02.06.2003.\n<\/p>\n
4.\t\tTwo
\nseparate cases registered by the local police station relating to the
\nlife of attempt of Shri Jagdish Tiwari and murder of Shri Haren
\nPandya were re-registered with C.B.I.  From the evidence collected
\nduring the investigation from the said two cases allegedly revealed
\nthat the attempt on the life of Jagdish Tiwari and murder of Haren
\nPandya were not isolated incidents but part of the same transaction
\nand in pursuance of a well designed conspiracy, they were done.
\nDuring the course of investigation when it was revealed to the
\nInvestigating Officer that the conspiracy to attempt to murder of
\nShri Jagdish Tiwari allegedly disclosed a larger conspiracy to strike
\nterror amongst the people or any section of people in Gujarat by
\nusing bombs or explosive substances or firearms as retaliation to the
\nindiscriminate murders and atrocities caused on the innocent Muslims
\nin Gujarat, the provisions of Prevention of Terrorism Act, 2002 (for
\nshort ‘POTA’) was invoked in the case and on 11.06.2003 an intimation
\nwas given to the concerned Court for adding sections of POTA in the
\nexisting sections of the FIR. Likewise, in the case of murder of
\nHaren Pandya also, intimation was given by the Investigating Officer
\nof adding the provisions of POTA in the FIR to the court of learned
\nChief Judicial Magistrate and learned Principal Judge, City Civil
\nCourt, Ahmedabad on 02.06.2003.\n<\/p>\n
5.\t\tAs
\nboth the incidents were alleged to be part of the same transaction
\nand having well designed conspiracy, one charge-sheet for both the
\nincidents came to be submitted by the C.B.I. against the accused
\npersons. All the accused against whom charge-sheet came to be filed
\nby the C.B.I. were put to trial by the learned Special Judge (POTA)
\nCourt, Ahmedabad.\n<\/p>\n
6.\t\tIt
\nappears that after the charge-sheet came to be filed investigation
\nwas over and the accused persons against whom charge-sheet came to be
\nfiled were tried by the learned Special (POTA) Court, the applicant
\nherein \u00fd  third party and father of the deceased Harin Pandya
\nsubmitted one application below Exh.855 inter-alia urging further
\nprobe of C.B.I. in the alleged murder of Harin Pandya to get the
\ntruth of the matter with the allegation of C.B.I. not having
\ninvestigated on the crucial aspects of this alleged murder, giving
\ninstances of averred version of the P.A. of late Shri Harin Pandya
\nand non-finding of pocket diary, shoes and wallet of the deceased and
\nalso on the ground that some needed crucial witnesses have not been
\nexamined by the prosecution.  The said application came to be
\ndismissed by the learned Special (POTA) Court vide order dated
\n18.12.2006.\n<\/p>\n
7.\t\tThat
\nthereafter trial of the aforesaid POTA case came to be proceeded
\nfurther and again the applicant herein \u00fd  third party \u00fd  father of
\nthe deceased of Harin Pandya submitted another application dated
\n27.03.2007 below Exh.898 in Special POTA Case No.10 of 2003 almost on
\nthe similar ground mentioned in the earlier application below Exh.855
\nand reiterated his request for further investigation and
\ninterrogating the persons named in the application so as to reach the
\ntruth of the matter for this being case of political murder. It was
\nalleged that murder of late Harin Pandya was political murder and at
\nthe instance of respondent No.3 herein and after re-investigation
\nrespondent No.3 be arraigned as accused. Said application below
\nExh.898 also came to be rejected by the learned Special (POTA) Court
\nvide order dated 26.03.2007.  It appears that thereafter nothing was
\ndone by the applicant \u00fd  third party and trial came to be proceeded
\nfurther and the said trial ended in conviction and the learned
\nSpecial Judge (POTA) Court by judgment and order dated 25.06.2007
\nconvicted the accused persons for the offences punishable under the
\nPOTA 2002 as well as under Sections 302, 120-B of the Indian Penal
\nCode and other relevant provisions for which they were tried.  That
\nthereafter, after POTA case came to be disposed of finally and ended
\nin conviction, the applicant herein \u00fd  third party has preferred the
\naforesaid three appeal challenging the order dated 18.12.2006 passed
\nbelow Exh.855; order dated 26.03.2007 passed below Exh.898 and final
\njudgment and order dated 25.06.2007 passed in POTA Case No.10 of
\n2003.  As in all the aforesaid appeals, there is delay, present three
\napplications are filed joining following respondents :\n<\/p>\n
1.\tCentral
\nBureau of Investigation, Block IV, C.G.O. Complex, Lodhi Road, New
\nDelhi \u00fd  110003<\/p>\n
2.\tState
\nof Gujarat, Notice to be served through The Chief Secretary, Gujarat
\nState, Sachivalaya, Gandhinagar<\/p>\n
3.\tShri
\nNarendrabhai Modi, Chief Minister, Gujarat State, Sachivalaya,
\nGandhinagar<\/p>\n
8.\t\tBefore
\nfurther considering the applications on merits, we are of the
\nprima-facie opinion that respondent No.3 is not required to be heard
\nat this stage; has no locus and is not required to be continued as
\nparty respondent in the present proceedings at this stage. Therefore,
\nwe called upon Mr.Barot, learned Senior Advocate to make submissions
\nwith respect to continuing respondent No.3 as party respondent in the
\npresent proceedings and whether he is required to be heard at this
\nstage and whether he has any locus at this stage.\n<\/p>\n
9.\t\tMr.Barot,
\nlearned Senior Advocate appearing on behalf of the applicant has
\nsubmitted that according to the petitioner respondent No.3 is main
\naccused on whose behest, to take political revenge deceased Haren
\nPandya son of the applicant has been murdered. It is also submitted
\nby him that though some important witnesses were available such as
\nwife of deceased Haren Pandya they were not examined by the
\ninvestigating agency deliberately and that certain important
\ndocumentary evidence has not been considered by the investigating
\nagency \u00fd  C.B.I. and real accused persons are not booked and\/or
\nagainst real accused there is no investigation at all. According to
\nMr.Barot, as there is prima facie case against respondent No.3 for
\narraying him as an accused, before passing any order for
\nre-investigation and\/or proceeding against him as an accused, he is
\nrequired to be heard and therefore, presence of accused no.3 is
\nrequired and it will be appropriate that accused no.3 is heard even
\nat this stage.\n<\/p>\n
10.\t\tMr.Harin
\nRaval, learned Special Public Prosecutor appearing on behalf of
\nC.B.I. – Investigating Agency has submitted that looking to the
\nscheme of Code of Criminal Procedure, respondent No.3 has no locus at
\nthis stage and therefore, respondent No.3 could not have been arrayed
\nin the present proceedings. It is submitted that the prayer of the
\napplicant before the learned trial Court and even before this Court
\nis for re-investigation against respondent No.3 making allegations
\nthat respondent No.3 is an accused and he is required to be
\nprosecuted.  It is submitted that looking to the scheme of provisions
\nof the Code of Criminal Procedure till an appropriate charge-sheet is
\nfiled after investigation \/ re-investigation and\/or cognizance is
\ntaken by the learned Magistrate, accused has no locus and is not
\nrequired to be heard. It is  submitted that therefore, respondent
\nNo.3 is not required to be heard at this stage and is to be deleted.
\nTo continue respondent No.3 in the present proceedings will be
\ncontrary to the scheme of Code of Criminal Procedure.\n<\/p>\n
11.\t\tMr.Kamal
\nTrivedi, learned Advocate General has submitted that he appears on
\nbehalf of respondent No.3 as he has been served with advance copies
\nof the present applications and the appeals. He has raised
\npreliminary objections against continuing respondent No.3 in the
\npresent proceedings.  It is submitted by him that the applications
\nbefore the learned trial Court were for re-investigation and
\nexamination of certain witnesses and such applications were given
\nafter substantial evidence were recorded.  It is submitted that even
\nrespondent No.3 was not party to the proceedings before the learned
\ntrial Court and respondent No.3 has been arrayed in the present
\nproceedings with mala-fide intention; he could not have been
\narrayed as an accused in the present proceedings, therefore, he has
\nto be deleted.  Mr.Kamal Trivedi, learned Advocate General has
\nsubmitted that as per Rule 32A of the High Court Rules and Form-B
\neven it was the duty of the Office to raise objections joining
\nrespondent No.3 in the present proceedings as even as per Rule 32A
\nand Form -B only those persons who were there in the trial Court can
\nbe joined in the present proceedings before this Court and as names
\nof the parties did not tally, therefore, Office was required to take
\nobjections.  Mr.Trivedi, has taken us to various provisions of the
\nPOTA more particularly Sections 2(a)(i), 29 and 49 of the POTA Act.
\nHe has also taken us to various provisions under the Code of Criminal
\nProcedure more particularly Section 2(d), Section 2(r) and Section
\n173 of the Cr.P.C. Relying upon aforesaid provisions of the POTA and
\nCode of Criminal Procedure, he has requested to delete name of
\nrespondent No.3 from the present proceedings. He has also relied upon
\nthe decision of the Hon’ble Supreme Court in the case of  Rambhai
\nNathabhai Gadhvi and Ors. v\/s. State of Gujarat reported
\nin  (1997) 7 SCC 744 by further submitting that till
\ncognizance is taken by the Court \/ Magistrate there is no question of
\nhearing the accused.\n<\/p>\n
12.\t\tHeard
\nthe learned Advocates appearing on behalf of the respective parties.\n<\/p>\n
13.\t\tAt
\nthe outset, it is required to be noted that as per this Court
\nrespondent No.3 has no locus at this stage and he is not required to
\nbe heard, therefore, this Court is not required to hear learned
\nAdvocate General appearing on behalf of respondent No.3 and more
\nparticularly even as this Court has not  issued notice upon
\nrespondent No.3. However, as learned Advocate General has been served
\nwith advance copies of the present applications and has made
\nsubmissions, we have noted his submissions recorded herein above and
\nrecording the submissions of the learned Advocate General may not
\nconstrued that we have heard respondent No.3 and\/or respondent No.3
\nhas any locus as for the reasons stated herein after respondent No.3
\nis not required to be heard at this stage and has no locus, he is
\nrequired to be deleted at this stage from the present proceedings.\n<\/p>\n
14.\t\tIt
\nis required to be noted that what is challenged in the present
\nproceedings are appeals under Section 34 of the POTA challenging the
\norder dated 18.12.2006 passed below Exh.855 and order dated
\n26.03.2007 passed below Exh.898 rejecting the applications of the
\napplicant which were given for re-investigation and examination of
\ncertain witnesses by making allegations that his son has been
\nmurdered for taking political revenge and against real accused there
\nis no proper investigation and are not booked; with further
\nallegation that on behest of respondent No.3 his son has been
\nmurdered. It is also required to be noted and it appears that the
\napplications were given by the applicant after substantial evidence
\nwas recorded by the learned trial Court. Therefore, respondent No.3
\ncan be said to be alleged prospective accused as per the applicant.
\nNow looking to the various provisions and the scheme of Code of
\nCriminal Procedure till an appropriate report \/ charge-sheet is filed
\nagainst the accused after investigation \/ re-investigation and\/or
\nMagistrate takes cognizance there is no provision in the Code of
\nCriminal Procedure to hear the accused. Mr.Barot, learned Senior
\nAdvocate appearing on behalf of the applicant has failed to satisfy
\nthis Court and\/or has failed to show any provision under the Code of
\nCriminal Procedure by which the Court is required to hear the accused
\nbefore the charge-sheet is filed and\/or cognizance is taken by the
\nlearned Magistrate.  His only contention is that there is sufficient
\nmaterial \/ evidence against accused no.3 and he is required to be
\nprosecuted as an accused and there is merits in the applications.\n<\/p>\n
15.\t\tIt
\nis to be noted that respondent No.3 was not party before the learned
\ntrial Court and till charge-sheet is filed after investigation \/
\nre-investigation he has no locus. As stated herein above, the
\napplications of the applicant were for re-investigation and
\nexamination of certain witnesses making allegations against
\nrespondent No.3 and to array him as an accused.  Assuming that such
\napplications are \/ were allowed then consequence would be to
\nre-investigate the case and after charge-sheet if Investigating
\nAgency finds some material against some persons, charge-sheet is
\nrequired to be filed and thereafter, they are to be prosecuted as an
\naccused and till that stage that persons \/ accused has no locus.  We
\nfail to appreciate why and for what purpose respondent No.3 is joined
\nin the present proceedings which is only at the stage of considering
\nthe applications of the applicant for re-investigation.  According to
\nus at this stage respondent No.3 has no locus and is not required to
\nbe heard and he could not have been joined as party respondent to the
\npresent proceedings being alleged prospective accused as according to
\nus considering various provisions and scheme of Code of Criminal
\nProcedure he is not be heard.  Therefore, we do not think that
\nrespondent No.3 is to be continued in the present proceedings and is
\nrequired to be heard at this stage.  Even considering the decision of
\nthe Hon’ble Supreme Court in the case of  Rambhai (supra)
\ntill cognizance is taken there is no question of hearing the accused.
\n As stated above, even as per the C.B.I. – Investigating agency
\nrespondent No.3 could not have been arrayed as accused in the present
\nproceedings and is not required to be heard at this stage.  Even at
\nthe stage of Section 319 of the Code of Criminal Procedure till
\ncognizance is taken by the learned trial Court and\/or any
\ncharge-sheet is filed accused is not required to be heard.\n<\/p>\n
16.\t\tUnder
\nthe circumstances and for the reasons stated above, we direct to
\ndelete respondent No.3 from the present proceedings i.e. in all the
\nthree applications as he is not required to be heard at this stage
\nand he could not have been arrayed \/ joined as party respondent in
\nthe present proceedings. It is made clear that we have not expressed
\nany opinion on merits while considering to delete respondent No.3
\nfrom the present proceedings in favour of any of the parties and
\nrespondent No.3 is ordered to be deleted from the present proceedings
\nas according to us he has no locus at this stage; he is not required
\nto be heard at this stage and he could not have been joined as
\nrespondent No.3 in the present proceedings. Now the applications for
\ncondonation of delay will be heard on its own merits after deleting
\nrespondent No.3 in the present proceedings.\n<\/p>\n
[J.R.Vora,J.]<\/p>\n
[M.R.Shah,J.]<\/p>\n
satish<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Vithalbhai vs Central on 30 January, 2008 Bench: J.R.Vora And Shah, M.R. Shah 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-12842","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nVithalbhai vs Central on 30 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vithalbhai-vs-central-on-30-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vithalbhai vs Central on 30 January, 2008 - 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