CR.RA/474/2001 1/75 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 474 of 2001 With CRIMINAL REVISION APPLICATION No. 486 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ========================================================= 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? ========================================================= ASHOKBHAI CHANDULAL BHATT & ORS Versus STATE OF GUJARAT & ANR ========================================================= Appearance : MR SB VAKIL with MR JM PANCHAL and KJ PANCHAL for applicants. MR AD OZA PUBLIC PROSECUTOR for Respondent State. MR BM GUPTA for Widow of victim ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA Date : 23 /06/2006 CAV COMMON JUDGMENT CR.RA/474/2001 2/75 JUDGMENT 1 These two Criminal Revision Applications are preferred by three accused out of 11 accused of Sessions Case No. 178 of 1986 pending before the learned Additional Sessions Judge, Ahmedabad City, against common order passed by the learned Additional Sessions Judge, Ahmedabad City, on 13th of September, 2001, below Applications Exhibits 56, 57 and 58, dismissing those applications preferred by the accused to discharge them for the offences punishable under Sections 302, 307, 326, 333, 347, 149, 152, 153, 506, 168, 188, 120B of the Indian Penal Code. 2 The factual background reveals that in the month of April, 1985, City of Ahmedabad experienced agitations and riots in certain parts of city on account of Reservation Policy of the then Government and in some parts of city curfew was required to be imposed. The present petitioners and other citizens, leaders of Khadia area of city of Ahmedabad in this connection had preferred writ petitions being Special Criminal Application Nos. 284 to 287 of 1985 complaining about police atrocities and excess of power to the extent of harassment to the innocent citizens by police in Khadia area of the City of Ahmedabad. Pursuant to the said petitions, the Division of this Court (Coram: Mr. Justice B.K. Mehta and Mr. Justice G.T. Nanavati) on 20th of April, 1985, gave directions to appoint a Committee of two members to hold a discreet inquiry into the incidents complained of by the petitioners of those petitions. In CR.RA/474/2001 3/75 JUDGMENT pursuance of the directions of the Division Bench of this Court, namely, the then Joint Registrar Shri A.H. Thakar and the then Additional Registrar Shri B.R. Acharya, in the company of the concerned advocates of the petitioners and the petitioners, etc. visited the affected area of Khadia on 21st of April, 1985 and also on 22nd of April, 1985. On 22nd of April, 1985, between 10.00 a.m. and 11.00 a.m. in protection of Mr. Mahapatra, Deputy Police Commissioner (Southern Zone), Ahmedabad City and police personnel. The Commission appointed by this Court was assessing the damage done to the property of citizens at Brahmpuri Pole of Khadia area at about 2.40 p.m. In other zone of Khadia area i.e. at Pakhalini Pole near Chhabila Hanuman, on relaxation of curfew, a crowd was gathered and that crowd attacked police constables on duty and it is alleged that out of the crowd, accused Kiran Jayantilal (not petitioner herein) attacked police constable Laxmanbhai Jamabhai with gupti and inflicted blows while other accused Vijay Lamba and Paresh Pandurang Dhanokar (both not petitioners herein) attacked Laxmanbhai Jamabhai by cycle chain and they also injured one Home Guard Ratiram Manruram Yadav. It is the prosecution case that the present petitioners i.e. original accused Nos. 1, 4 and 8 were in the said crowd and were instigating the crowd to attack police and to take revenge. Head Constable Laxmanbhai was taken to the hospital, but died and thereafter at about 13.15 hours. Mr. Mahapatra, Deputy Police Commissioner (Southern Zone), Ahmedabad, preferred a complaint (FIR) before CR.RA/474/2001 4/75 JUDGMENT Astodia Police Station and after investigation, the charge sheet came to be filed and the case was committed to the Court of City Sessions Judge at Ahmedabad and was numbered as Sessions Case No. 178 of 1986. 3 It appears that many applications were filed by the accused for producing documents on the record of the case before framing of the charge and it appears that on rejection of some of the applications of the like nature by learned Additional City Sessions Judge, a Revision Application came to be filed in this Court by accused No.6 Nansha C Thakore and accused No.7 Babubhai Methabsing Thakore (both not petitioners herein) being Criminal Revision Application No. 570 of 1986, which was decided by this Court (Coram: Miss Justice R.M. Doshit) on 25th of September, 2000 and this Court held that the Trial Court had grossly erred in refusing to direct production of the document sought for especially inspection report prepared by the Officers of this Court as appointed by the Division Bench of this Court. It was directed that it became the duty of the police to investigate the plea of alibi to find out the truth and ultimately the order refusing production of document was set aside and the learned Trial Judge was directed to order production of inspection report of the Court Committee as referred to above and further directed to consider the plea of the accused in framing of the charge. It appears that without complying this order passed by this Court, the learned Trial Judge straightaway framed CR.RA/474/2001 5/75 JUDGMENT the charge and, therefore, the accused including present petitioners preferred Misc. Criminal Application bearing No. 6684 of 2000. This Court (Coram: Mr . Justice A.K. Trivedi, J.) vide order and judgment dated 15th of November, 2000, was pleased to quash the charge framed against all the accused by the Trial Court and it was directed to the Trial Court that the Trial Court shall comply with the earlier order passed by this Court in Criminal Revision Application No. 570 of 1986. Learned PP had made a statement at the Bar that the said inspection report prepared by the Committee constituted by the Division Bench of this Court would be produced before the Trial Court. This Court, therefore, in Criminal Misc. Application No. 6684 of 2000 further directed that on producing the inspection report by learned PP, the Trial Court shall supply copies of such report to all the accused of Sessions Case No. 178 of 1986, and the accused of Sessions Case No. 178 of 1986 shall be at liberty to make submission in respect of charge and/or to claim discharge on the basis of papers supplied and on the grounds permissible under the law. 4 Thereafter it appears that in all three applications came to be filed by the accused. Exhibit-58 came to be filed by accused No.1. Ashokbhai Chandulal Bhatt and accused No.8 Mayur Natwarlal Dave to discharge them and both accused are petitioners in the present Criminal Revision Application No. 474 of 2001. While accused No.4 Harendrakumar Ramchandra Pathak preferred CR.RA/474/2001 6/75 JUDGMENT Application at Exh. 56 to discharge him in the said Sessions Case and he is the petitioner in Criminal Revision Application No. 486 of 2001. While remaining accused preferred Application at Exhibit 57. The learned Trial Judge vide impugned common order decided these three applications i.e. Exhibits 56, 57 and 58 and rejected all these three applications. 5 Out of 11 accused, only three accused i.e. accused No.1 Ashokbhai Chandulal Bhatt and accused No.8 Mayur Natwarlal Dave preferred the present Criminal Revision Application No. 474 of 2001 against rejection of Application Exhibit-58 and accused No.4 Mr. Harendrakumar Ramchandra Pathak has filed Criminal Revision Application No. 486 of 2001, against rejection of Application for discharge at Exhibit-56. Remaining accused have not preferred any application against rejection of Application - Exhibit 57. 6 Thus, the scope of both the Criminal Revision Applications is limited to three accused out of 11 i.e. accused No.1, 4 and 8 who are petitioners of Criminal Revision Application No. 474 of 2001 and Criminal Revision Application No. 486 of 2001. 7 In both the Criminal Revision Applications, on behalf of the three petitioners, learned Senior Counsels Mr. S.B. Vakil and learned Senior Counsel Mr. J.M. Panchal were heard. On behalf of the State, the then learned Public Prosecutor Mr. A.D. Oza was heard CR.RA/474/2001 7/75 JUDGMENT fully and thereafter learned APP Mr. Kodekar remained present. While on behalf of the widow of the victim Police Constable, learned Advocate Mr. B.M. Gupta was heard at length. It is pertinent to note here that in trial proceedings, audience to the widow of the victim Police Constable Laxmanbhai Jamabhai was refused by the Trial Court as well as by this Court. However, this being Revision Application, learned Advocate Mr. Gupta was allowed to address the Court in both the Criminal Revision Applications on behalf of the widow of the victim in the incident. 8 Mainly on behalf of all the petitioners in both the Criminal Revision Applications, I was taken to the material produced by the Police under Section 173 of the Code of Criminal Procedure. It was submitted by both the learned Senior Counsels of the petitioners that the inspection report prepared by the Officers of this Court in pursuance of the direction issued by the Division Bench of this Court must be looked into at the stage of framing of the charge, for which this Court in Criminal Misc. Application No. 6684 of 2000, vide judgment and order dated 15th of November, 2000, quashed the charge framed and permitted the accused to make all submissions for the framing of the charge or discharge and other pleas permissible in law. It is submitted that the Trial Court completely ignored the report of the Commissioner which is vital aspect of the prosecution case. Limiting the arguments for the present three petitioners – accused, it was submitted by both the Counsels that CR.RA/474/2001 8/75 JUDGMENT looking to the police papers and charge sheet, except police witnesses, there is nothing on the record involving the present three petitioners in the said crime. It was submitted by all vehemence that even in the prosecution case, from the charge sheet submitted under Section 173 of the Code of Criminal Procedure, there are two set of evidence, each destroying the other, and in contradiction to the extent that the set of evidence is diametrically opposite of the other. It is submitted that the statements of the Joint Registrar Mr. Anjanikumar Harilal Thaker and Additional Registrar Bhupatrai Revashankar Acharya and the statement of learned Senior Counsel Mr. H.L. Patel (since expired) are seen, it leaves no doubt that the present three petitioners were not at the scene of offence, but were accompanying the Commissioner and Complainant Mr. J. Mahapatra in some other area of Khadia. It is submitted that only because writ petitions came to be filed before this Court and one criminal case against the police personnel for excess of the power and atrocity was filed in the Court of learned Metropolitan Magistrate against Mr. R.K. Vashishtha and Mr. R.J.Bhatt, both Police Officers of high rank, these petitioners are involved and implicated falsely in this case. It is submitted that even if the statements of police constables are taken as it is, no overt act is attributed to the present petitioners because the deceased was attacked by accused Kiran Jayantilal and injured was attacked by other accused, but none from the present petitioners. The Trial Court ought to have taken this into consideration because it becomes the duty of the Trial Court to CR.RA/474/2001 9/75 JUDGMENT apply judicial mind to the papers submitted before it while framing charge and to comply with Section 227 of the Code of Criminal Procedure strictly. It was by all vehemence submitted that accused No.8 and petitioner No.2 of Criminal Revision Application No. 474 of 2001 on the day of the incident was with the Court Commissioner right from 8.30 a.m. to 1.30 p.m. The said Commissioner was appointed by learned Metropolitan Magistrate on account of criminal case filed against the police personnel and on request made by the citizens and complainant, learned Metropolitan Magistrate also appointed a Commissioner to draw panchnama, and on 22nd of April, 1985, accused No.8 Mayur Natwarlal Dave was with the Commissioner, which is apparent from the panchnama drawn and placed on record by the accused. It is submitted that even if the plea of the present petitioners of alibi is not considered, then also, in respect of presence of the present petitioners at the scene of offence becomes doubtful, which is apparent from the papers submitted by the Police under Section 173 of the Code of Criminal Procedure. Learned Counsels took this Court through each statements of the witnesses. At least, including the panchas in charge sheet, 57 witnesses are cited by the Investigating Agency. It was submitted that when the witnesses of the status of Registrars of this Court, in clear terms stated before the Police under Section 161 of the Criminal Procedure Code that accused No. 1 Ashok Chandulal Bhatt and accused No.4 Harendra Pathak were accompanying them right from 10.00 a.m. To 11. 00 a.m. from Brahmpuri-ni-pole to CR.RA/474/2001 10/75 JUDGMENT Astodia Police Station, the question of they being in the crowd near Chhabila Hanuman, a place of incident, is improbable and impossible. It is submitted that Brahmpuri-ni-pole and Chhabila Hanuman are at a distance and topographical situation of Khadia area of Ahmedabad City is such that between Chhabila Hanuman and Brahmpuri-ni-pole, there are many buildings and narrow lanes which is known as pole in the colloquial language. It is submitted that admittedly it is a prosecution case that the incident took place at 10.40 a.m. near Chhabila Hanuman while accused No.1 Ashokbhai Chandulal Bhatt and accused No.4 Harendrakumar Pathak during this time, undoubtedly, were with the Commissioner and the Complainant Mahapatra all the while and never parted with them till 11.00 a.m. till they reached near Astodia Police Station, while for accused No. 8 Mr. Mayur Natwarlal Dave to rule out the presence of this accused at the scene of offence, panchanams drawn by the Commissioner in pursuance of the orders passed by the learned Metropolitan Magistrate is called-in-aid. It is submitted that the Trial Court fell into error in rejecting the applications filed by these petitioners because the Trial Court failed to refer to the directions issued by this Court earlier to take into consideration the Commissioner Report. It was submitted that the Trial Court further erred in rejecting the applications of the present petitioners because the Trial Court took into consideration part of the material produced because the Trial Court relied upon the statements of three Head Constables, eye witnesses and did not take into consideration the CR.RA/474/2001 11/75 JUDGMENT statements of Mr. B.R. Acharya and Mr. A.H. Thakore, both Additional and Joint Registrars of this Court, by which the presence of the present petitioners – accused No.1 Ashokbhai Bhatt and accused No.4 Harin Pathak was established somewhere else than the scene of offence. The Trial Court erred in observing that at the stage of framing of the charge, the plea of alibi emanating from the accused, cannot be considered. It was submitted that, in fact, it was not a question of consideration of plea of alibi raised by the accused, but it was a question of considering wholesome material produced by the Police in framing of the charge and prima facie ascertaining whether the present petitioners were present at the scene of offence. It is submitted that it is not the plea of the present petitioners that alibi which is required to be considered, but taking the police papers as it is, it is established, prima facie, that the present petitioners were not present at the scene of offence. The Trial Court erred in placing reliance on the statements of eye witnesses i.e. police constables and ignoring the statements of Joint Registrar and Additional Registrar of this Court that the presence of the petitioners are shown somewhere else. It is submitted that it is the cardinal principle of law that when two views are possible from the police papers itself, even without referring to the plea of alibi raised by the accused, such accused are required to be discharged and view favourable to the accused should be adopted. It is submitted that therefore from the papers under Section 173 of the Criminal Procedure Code itself two sets of material clearly appears, CR.RA/474/2001 12/75 JUDGMENT one establishes the presence of accused No.1 Ashokbhai Bhatt and accused No.4 Harendrakumar Pathak somewhere else when the offence alleged to have been committed while second set of material in the shape of statements of three Police Constables, it is the prosecution case that accused No.1 Ashokbhai Bhatt and accused No.4 Harendrakumar Bhatt were in the crowd at Chhabila Hanuman at 10.40 a.m. when the offence was committed and when Kiran Jayantilal attacked Constable Laxmanabhai Jamabhai with gupti and other accused attacked two other constables. It is submitted that these two sets appearing from the police record is destroying each other if allowed to stand. In these circumstances, according to law, even without accepting or weighing the evidence and take the material on its face value on account of two sets of material, the accused i.e. present petitioners are required to be discharged. It was submitted that though the learned Trial Court elaborately narrated the principles of law while applying mind at the stage of Sections 227 and 228 of the Criminal Procedure Code, but failed to apply those principles to the facts of the case and, therefore, erred in coming to the conclusion and ultimately failed to exercise the jurisdiction vested in the Trial Court according to law. It is, therefore, submitted by both the Senior Counsels that no overt act is attributed to them, the three petitioners are required to be discharged for the charges levelled against them. It is further submitted by all vehemence that though the present petitioners are charged with the offence punishable under Section 120-B of the CR.RA/474/2001 13/75 JUDGMENT Indian Penal Code for the conspiracy, but in fact, there is no iota of material against them to invite charge against Section 120-B. There is not a single line, according to learned counsels, in the material to even remotely suggest or infer that there was a meeting of mind between the accused an agreement to murder the police constable. Even from the FIR itself this allegation is ruled out. It is, therefore, submitted that the present petitioners are required to be discharged from the allegations against them under Section 120-B of the Indian Penal Code as there is no material at all even remotely to suggest that there was prior meeting of mind between the accused to commit a crime or commit an act by unlawful means. The learned counsels relied upon certain decisions to substantiate their submissions. Those decisions are in the matter of (i) STATE OF KARNATAKA vs. L. MUNISWAMY, as reported in AIR 1977 SC 1389; (ii) UNION OF INDIA vs. PRAFULLA KUMAR SAMAL, as reported in AIR 1979 SC 366; (iii) DILWAR BALU KURANE vs STATE OF MAHARASHTRA, as reported in (2002) 2 SCC 135; (iv)CENTURY SPINNING AND MANUFACTURING CO. LTD vs. THE STATE OF MAHARASHTRA, as reported in AIR 1972 SC 545; (v) NIRANJAN SINGH KARAM SINGH PUNJABI vs. JITENDRA BHIMRAJ BIJJA, as reported in AIR 1990 SC 1962; (vi) STATE OF MAHARASHTRA vs SOM NATH THAPA, as reported in AIR 1996 SC 1744 and (vii) STATE OF ORISSA vs DEBENDRA NATH PADHI, as reported in AIR 2005 SC 359. The decisions cited are taken into consideration and will be discussed. CR.RA/474/2001 14/75 JUDGMENT 9 While on behalf of the State, learned P.P. Mr. A.D. Oza boldly accepted that there are two sets of evidence in material submitted by the Police under Section 173 of the Code of Criminal Procedure. It was submitted that witness Police Constable Pravinsinh Himmatsinh, witness Head Constable Udesinh Mehraji and injured witness Ratiram Manruram Yadav, have stated that the petitioner Ashokbhai Chandulal Bhatt and petitioner Harendrakumar Pathak were at the scene of offence and were instigating the crowd to take revenge from the police. At the same time, there are statements of Anjanikumar Harilal Thaker, Joint Registrar of this Court and Bhupatrai Revashanker Acharya, Additional Registrar of this Court, revealing the presence of accused No.1 Ashokbhai Chandulal Bhatt and accused No.8 Harendra Pathak at Brahmpuri Pole and away from the scene of offence. It was submitted that at this juncture meticulous sifting of the evidence is not permitted and from the statements of the police constables, as referred above, it is clear that the present petitioners were instigating the crowd and they were speaking slogans. It is vehemently argued by learned P.P. Mr. Oza that it must be taken note of that irrespective of the presence of the present petitioners at the scene of offence, they are charged with the offence punishable under Section 120-B of the IPC. It is submitted by learned PP Mr. Oza that there cannot be a direct evidence of conspiracy and agreement between the accused and conspiracy can be proved by necessary implications and the CR.RA/474/2001 15/75 JUDGMENT existence of criminal conspiracy can be ascertained from the circumstances having regard to the object of conspiracy and when at this stage meticulous appreciation is ruled out, prima facie, it must be inferred that the present petitioners are involved in conspiracy though they might not be present at the scene of offence. It is submitted that the conduct of the petitioners as disclosed from the police papers is clear that accused No.1 detained the commission to take tea at Brahmpuri Pole to allow the incident in question to occur at near Chhabila Hanuman. It is submitted that by a statement of Major of Army Mr. A.K. Sinha, which was deployed by the State Government, to control the riot, it is amply revealed that on 22nd of April, 1985, the curfew was relaxed at the request of accused No.1 Ashokbhai Bhatt by the State Government and the incident occurred. Not only that, it was submitted that the crowd which was gathered at Chhabila Hanuman as well as near Astodia Police Station, slogans were spoken to take revenge against the police and this denotes prior agreement of mind and it is a prima facie evidence under Section 120-B of the Indian Penal Code. It is submitted that it is not a case of mistaken identity that each of the witnesses knew very well before the incident, the accused No.1 Ashokbhai Bhatt and accused No.4 Harendra Pathak. The learned PP Mr. Oza relied upon certain decisions for his submission in respect of the charge under Section 120-B of the IPC and those decisions are in the matter of (i) MOHAMAD USMAN MOHAMMAD HUSSAIN MANIYAR vs STATE OF MAHARASHTRA, as reported in 1981 Cri. L.J. CR.RA/474/2001 16/75 JUDGMENT 588; (ii) YASH PAL MITTAL vs. STATE OF PUNJAB, as reported in 1978 SCC (Cri) 5. Learned PP Mr. Oza also relied upon a decision of this Court in the matter of K.G. SAKSENA vs VIRBHADRASINJHI, as reported in 1985 GLH, 289, wherein this Court observed with respect of Sections 245 and 247 of the Code of Criminal Procedure that if both the Sections are read together in juxtaposition, it is clear that Magistrate is not required to meticulously appreciate the evidence nor the Magistrate is required to consider probable defence. It is further observed that at that stage the Magistrate has to consider whether prima facie case is made out or not. The learned P.P. also relied upon a decision of the Apex Court in the matter of STATE OF MAHARASHTRA vs SOM NATH THAPA, as reported in AIR 1996 SC 1744, wherein in para-57, the Apex Court observed with reference to the statements of the witnesses recorded by the Police twice and