CR.A/632/2006 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 632 of 2006 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 ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= STATE OF GUJARAT - Appellant(s) Versus RAFIQ @ GAY GHANIBHAI SHAIKH - Opponent(s) ========================================================= Appearance : MR DIPEN DESAI, APP for Appellant. MR IH SYED for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/05/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.R. SHAH) CR.A/632/2006 2/11 JUDGMENT 1. Present appeal is preferred by the State under sec.378 of the Code of Criminal Procedure against the judgment and order of acquittal dated 3/9/2005 passed by the learned Additional Sessions Judge, Fast Track Court, Navsari in Sessions Case No.7 of 2005 acquitting the respondent herein – original accused No.3 for the offences punishable under Section 307, 397 read with Section 114 of the Indian Penal Code and under Section 25(1)(a), (1)(b)(a), 27(1), 28 and 29 of the Arms Act. 2. That a Criminal Complaint being CR No.I - 48 of 1998 was lodged by the proprietor/owner of one Ronak Oil Agency against three persons for the offences punishable under Sections 307, 397, read with Section 114 of the Indian Penal Code and under Section 25(1)(a), (1)(b)(a), 27(1), 28 and 29 of the Arms Act for the offences alleged to have happened on 14.5.1998. Investigation was carried out by one Arun Rameschandra Bagi, and after the investigation was over, charge-sheet came to be filed against the respondent herein and other two accused persons in the Court of learned Chief Judicial Magistrate, Valsad at Navsari. As the case was triable by the Sessions, the same was committed to the learned Sessions Court, Valsad at Navsari under Section 209 of the Code of Criminal Procedure which was numbered as Sessions CR.A/632/2006 3/11 JUDGMENT Case No.148 of 1999. All the accused persons did not plead guilty and they were tried and charge was framed against all the accused inclusive of respondent herein by the learned Additional Sessions Judge, Valsad on 6.11.2000. After framing of the charge and during the course of trial and before recording of the evidence, respondent herein – original accused No.3 absconded and, therefore, the case against the respondent herein was separated and the trial proceeded against two other accused namely Farukh @ Chapro Chotumiya Shaikh and Abdul Rahim @ Aadu @ Aslam Gulamnabi. Prosecution examined the eight witnesses to prove the case against the aforesaid two accused persons. Thereafter the learned Extra Assistant Sessions Judge, Valsad at Navsari by judgment and order dated 22.2.2002 acquitted the aforesaid two accused persons. It appears that thereafter the respondent herein came to be arrested and vide earlier order passed below Exh.5 in Sessions Case No.148 of 1999, the learned Sessions Judge, Valsad at Navsari ordered to separate the trial of the respondent herein and new Sessions Case number was given which was numbered as Sessions Case No.7 of 2005, and it appears that the learned Public Prosecutor gave application at Exh.3 requesting to issue witness summonses who were examined in Sessions Case No.148 of 1999, and in CR.A/632/2006 4/11 JUDGMENT fact, the learned Additional Sessions Judge allowed the said application and directed to issue witness summonses upon the witnesses who were examined in Sessions Case No.148 of 1999. However, subsequently the learned Public Prosecutor gave application at Exh.5 dated 25.8.2005 submitting that the witnesses against whom the witness summonses have been issued were already examined in Sessions Case No.148 of 1999 and respondent is also one of the accused and, therefore, the prosecution does not want to examine those witnesses afresh and it was requested to consider the evidence recorded in Sessions Case No.148/99 as evidence in Sessions Case No.7/05 also. Similarly even the learned advocate appearing on behalf of the respondent-accused submitted application at Exh.6 declaring that they do not want to cross-examine those witnesses who were examined in Sessions Case No.148/99 and surprisingly the learned Additional Sessions Judge, Fast Track Court, Navsari relied upon and considered the evidence already recorded in Sessions Case No.148/99 without even exhibiting the same in Sessions Case No.7/05 and relying upon the said evidence acquitted the respondent herein for the charges levelled against them. 3. Being aggrieved and dissatisfied with the impugned CR.A/632/2006 5/11 JUDGMENT judgment and order of acquittal dated 3.9.2005 passed by the learned Additional Sessions Judge, Fast Track Court, Navsari passed in Sessions Case No.7/05, the State of Gujarat has preferred the present appeal under Section 378 of the Code of Criminal Procedure. 4. Mr.Dipen Desai, learned Additional Public Prosecutor, while assailing the impugned judgment and order of acquittal, has vehemently submitted that the procedure adopted by the learned trial court, relying upon the evidences recorded in earlier Sessions Case and without the same being brought on record of the present case and even without exhibiting the same and/or producing the copies of the same on the record and thereby acquitting the respondent herein, is unknown to the Code of Criminal Procedure. He has relied upon sec.273 of the Code of Criminal Procedure and submitted that as provided under sec.273 of the Code of Criminal Procedure, all the evidences taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in presence of his pleader. It is submitted that, therefore, the judgment and order passed by the learned trial court acquitting the respondent herein, relying upon the evidences recorded in CR.A/632/2006 6/11 JUDGMENT earlier Sessions Case No.148 of 1999 and without producing the copies of the said evidence on record of the present case, requires to be quashed and set aside. 4.1 The learned Additional Public Prosecutor has also tried to make submissions on merits also. However, as for the reasons stated hereinafter, we propose to remand the matter to the learned trial court for deciding the same afresh, we have not permitted the learned Additional Public Prosecutor to make further submissions on merits. 4.2 Mr.Dipen Desai, learned APP has relied upon unreported decision of this Court in the case of State of Gujarat vs. Hanu Dharsi Vaghri rendered in Criminal Appeal No.2236 of 2005 in which in a similar facts and circumstances this Court remanded the matter to the trial court. 5. Mr.I.H.Saiyed, learned advocate appearing on behalf of the respondent-accused has fairly conceded that the procedure adopted by the trial court while acquitting the respondent- accused i.e. relying upon the evidences relied upon in the earlier sessions case is contrary to Section 273 of the Code of Criminal Procedure and which cannot be sustained and, CR.A/632/2006 7/11 JUDGMENT therefore, he has readily agreed for remanding the matter to the learned trial court for deciding the same afresh from the stage of framing of the charge. 6. Heard the learned advocates appearing for the respective parties. 7. As it emerges from the record that a criminal complaint was filed against the three accused persons inclusive of respondent herein and chargesheet was filed against all the three accused persons and all were tried together in Sessions Case No.148/99 for the offences under Section 307, 397 read with Section 114 of the Indian Penal Code and under Section 25(1)(a), (1)(b)(a), 27(1), 28 and 29 of the Arms Act, and the charge was framed against all the three accused persons. However, after the charge was framed and during the trial and before the evidence was recorded, the respondent herein absconded and, therefore, the learned Sessions Judge, Valsad at Navsari passed the order below Exh.5 ordering to separate the trial of the respondent herein and it was ordered that evidence against him be recorded under Section 299 of the Code of Criminal Procedure. That thereafter other two accused came to be acquitted by the learned Extra Assistant Sessions CR.A/632/2006 8/11 JUDGMENT Judge, Valsad at Navsari vide judgment and order dated 22.2.2002 and the aforesaid two accused persons came to be acquitted. Though the earlier order was passed to separate the trial against the respondent herein and though no new sessions case was required to be given, still a new separate sessions case came to be registered and numbered as Sessions Case No.7/05 against the respondent herein. Be that it may, even the learned Additional Sessions Judge, Fast Track Court, Navsari, before whom the respondent was tried, solely relying upon the evidences recorded in Sessions Case No.148/99, and even without exhibiting the same in the present case, acquitted the respondent herein while impugned judgment and order. Such a procedure and the method adopted by the learned Additional Sessions Judge, Fast Track Court, Valsad at Navsari is unknown to the Code of Criminal Procedure and the same cannot be approved. 8. Looking to the procedure of Code of Criminal Procedure more particularly Sec.273 of Cr.P.C., all the evidences taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in presence of his pleader. It is to be noted that earlier trial being Sessions Case No.148/99 was not against the CR.A/632/2006 9/11 JUDGMENT respondent herein and the evidences were recorded in respect of accused persons who were tried in the said sessions case. As such the learned Public Prosecutor adopted the correct procedure by submitting the application Exh.3 requesting to issue witness summonses upon all the witnesses who were examined in Sessions Case No.148/99, and in fact the trial court also passed the order to issue witness summonses against the said witnesses. However, subsequently on the application given by the learned Public Prosecutor, the said witnesses were not called and their evidences were not recorded in the presence of the accused. Normally the proper course would be to lead evidence afresh in the subsequent trial as the trial would be against the concerned accused person. Not a single evidence which were recorded in Sessions Case No.148/99 which has been relied upon while acquitting the respondent are exhibited nor brought on record in the present case, and in spite of that considering the evidences and deposition recorded in Sessions Case No.148/99, the learned Additional Sessions Judge, Fast Track Court, Navsari has acquitted the respondent. As the evidences which are relied upon by the trial court for acquitting the respondent herein (which was recorded in Sessions Case No.148/99) are not on record in the present case as they are not exhibited, CR.A/632/2006 10/11 JUDGMENT this Court in not in a position to consider the same. As stated above, even the learned advocate appearing for the respondent has also readily agreed to quash and set aside the impugned judgment and order of acquittal and to remand the same to the trial court for deciding the same afresh on leading evidence afresh in presence of the accused, we are not further discussing the same. Under the circumstances, while quashing and setting aside the judgment and order of acquittal, the mater is to be remanded to the learned trial court for deciding the same afresh in accordance with law and on merits, after following due procedure of recording evidence/deposition etc. and after following the correct procedure. We have not expressed any opinion on merits, as it may affect either parties at the time of trial on remand. 9. For the reasons stated hereinabove, the appeal succeeds in part. The judgment and order of acquittal dated 3.9.2005 passed by the learned Additional Sessions Judge, Fast Track Court, Navsari in Sessions Case No.7 of 2005 is hereby quashed and set aside and the matter is remitted/remanded to the trial court for deciding the same afresh in accordance with law and on merits, from the stage of framing of the charge and after following correct procedure of recording evidence / CR.A/632/2006 11/11 JUDGMENT deposition afresh in consonance with the provisions of the Code of Criminal Procedure in respect of conducting trial and considering sec.273 of the Code of Criminal Procedure. Now the respondent-accused will appear before the learned trial court within a period of six weeks and thereafter the respondent-accused be dealt with in accordance with law. If the respondent-accused do not appear before the trial court within a period of six weeks from today, the learned trail court to issue warrant against the respondent to secure his presence and thereafter he may be taken to custody and dealt with in accordance with law. The trial court to conclude the trial on remand as early as possible. The appeal is accordingly allowed to the aforesaid extent. (J.R. VORA, J.) (M.R. SHAH, J.) syed/