CR.RA/655/2004 1/32 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 655 of 2004 With CRIMINAL REVISION APPLICATION No. 656 of 2004 To CRIMINAL REVISION APPLICATION No. 657 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ============================================================== 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 ? ============================================================== SHRI DHIRENDRA NATVARLAL SANGHPAL - Applicant(s) Versus THE STATE OF GUJARAT - Respondent(s) ============================================================== Appearance : MR JR DAVE for Applicant(s) : 1, Mr. MC Sood, Addl. PUBLIC PROSECUTOR for Respondent(s) : 1, ================================================================== CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 09/08/2005 ORAL COMMON JUDGMENT : 1. The present Group of Revision Applications are preferred by different petitioners accused against the common order of rejection of an application CR.RA/655/2004 2/32 JUDGMENT praying discharge under section 227 of CrPC by ld. Addl. Sessions Judge, Court No.8, City Sessions Court, Ahmedabad dated 08.09.2004 in Sessions Case No. 178/2004. The petitioners of all the Revision Applications are shown as an accused in the crime registered with Meghaninagar Police Station being CR.No. I.26/2004 for the offences punishable under various sections of Indian Penal code. Petitioner of Cri. Rev. Application No. 655/2004 Dhirendra Natwarlal Sanghpal -original accused No.2 has preferred application exh.7 praying discharge. Similarly, the petitioner of Cri. Revision Application No. 656/2004 Kanubhai Ramjibhai Solanki- original accused No.3 has preferred application exh.6 praying discharge and petitioner of Cri. Revision Application No. 657/2004 -original accused No.1 has preferred application exh.6 praying discharge. All of them have prayed that they should be discharged from the offence punishable under section 397 of IPC. Ld. Counsel Mr. JR Dave appears for the petitioner of Cri. Rev. Application No. 655/2004. Ld. Counsel Mr. Ashish M.Dagli appears for the petitioner of Cri. Rev. Application No. 656/2004 and ld. Counsel Mr. CR.RA/655/2004 3/32 JUDGMENT Y.S. Lakhani appears for the petitioner of Cri. Rev. application No. 657/2004. Ld. Counsel appearing for the petitioners in this group of Revision Applications have taken this Court through the nature of allegations made in the complaint as well as through the papers of investigation received by them along with chargesheet. However, ultimately, all of them have concentrated their arguments that the ld. Trial Judge at least ought to have discharged the petitioners accused from the charge for the offence punishable under section 397 of IPC because there is no element of evidence, even prima facie, to show that the offence under section 397 of IPC was ever intended or has been committed by any of the petitioners accused. 2. Ld. APP Mr. NC Sood appearing for the State has argued at length and has taken this Court through the case pleaded by the prosecution and gravity of the offence committed in a court compound and the sensitivity attached to the crime and submitted that there is no merit in any of the Revision Applications and accused persons have been rightly asked by the CR.RA/655/2004 4/32 JUDGMENT ld. Trial Judge to face the charge for which they have been chargesheeted by the investigating agency including the charge for the offence punishable under section 397 of IPC. 3. I have gone through the order under challenge passed by the ld. Trial Judge and in response to the query raised by the Court, it is jointly submitted that all these Revision Applications, if are disposed of by the common judgment as the points at issue involved is similar and they are arising out of the same order and that too arising out of one crime i.e. CR No. I.26/2004 registered with Meghaninagar Police Station. Hence, this group of Revision Applications have been heard jointly and are being disposed of by this Common Judgment. 4. To appreciate the rival contentions placed before the Court, it is necessary to state the facts in brief available from the papers of investigation and the contents of the complaint filed. That on 29th January, 2004, a complaint is given by the cameraman Subodh Shankarlal Vyas of Zee News Channel, an CR.RA/655/2004 5/32 JUDGMENT electronics media. To unreveal to the public at large the alleged scam going on in the Court of Meghaninagar Court Compound of issuance of the warrant, a trap case was maneuvered by the reporter of Zee News Channel and in wake of issuance of warrants allegedly against the President of India, the then chief Justice of India etc. the said news had been broadly publicized. In wake of the issuance of the said warrants, the concerned Magistrate was suspended by the Hon'ble High Court and on 29th January, 2004, the reporter Mr. Janak Dave in his Indica car with the complainant cameraman Mr. Subodh Vyas had once again gone to Meghaninagar Court compound and were present at court No.10. While the said news was being covered, a mob of about 40 to 50 advocate had gathered, when one of them shouted “that the persons from Zee T.V. is going, beat him”. Both these persons attempted to run away. They were forcibly stopped and given kick blows and fist blows. One of the Advocates also said “Sankhla burn the camera” and that advocate had forcibly taken away the camera and broken it which was later on burnt. There were frequent references of names like Saijpal and CR.RA/655/2004 6/32 JUDGMENT Kanu. In an attempt to save his life, the complainant took an autorickshaw and reached to the office of the Police Commissioner. The complaint had been given by Mr. Vyas which was registered as I.CR No.26/2004 on the very same day which was later on numbered as criminal Case No. 516/04 where the chargesheet had been laid for the offences under sections 143, 147, 149, 120(b), 201, 397, 323 and 435 of the I.P.C. 5. On receipt of the complaint, Investigating Agency started taking immediate action. It emerges from record that the accused persons were initially granted advance bail and after their formal arrest, they have been enlarged on bail by ld. Metropolitan Magistrate. After investigation, all the seven accused came to be chargesheeted for various offences under IPC including the offence punishable under section 397 of IPC. Except the offence punishable under section 397 of IPC, all other offences are triable by ld. Magistrate. Before the ld. Addl. Sessions Judge, two fold arguments were made on behalf of the accused persons. Firstly, it was submitted that the accused are praying discharge from the offence punishable under section 397 of IPC and CR.RA/655/2004 7/32 JUDGMENT the Court should hold that the investigating agency has wrongly applied in the chargesheet said section. The second argument advanced was that the accused may be permitted to reserve their right to apply for discharge even from all other offences at an appropriate stage and and when occasion arises. This second fold of argument which was placed before the ld. Addl. Sessions Judge, has not been advanced before this Court and it is jointly argued that the order passed by the ld. Addl. Sessions Judge in not discharging the petitioners accused from the offence punishable under section 397 of IPC be quashed and it should be held that the offence punishable under section 397 of IPC is not made out and the petitioners have been wrongly chargesheeted for the said offence and the papers of Sessions case No. 178/2004 be sent to ld. Chief Metropolitan Magistrate to dispose of the criminal case in accordance with law. All the ld. Counsel appearing for the petitioners have addressed the Court. However, ld. Advocate Mr. SV Raju has made elaborate submissions on facts as well as on legal aspects in this group of matters. CR.RA/655/2004 8/32 JUDGMENT 6. Ld. Addl. Sessions Judge has discussed in detail the oral submissions made by ld. Counsel Mr. Raju as well as ld. APP appearing for the State. It is relevant to note that when application praying discharge is placed before the court, then the Court should consider following main principles:- 1. That the Judge while considering the question of framing of the charges under Section 227 of the Code has the undoubted power to shift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. 2. Whether the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceedings with the trial. 3. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. 4. That in exercising his jurisdiction under section 227 of the code the Judge which under the present Code is a senior and experienced court can not act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving inquiry into the pros and cons of CR.RA/655/2004 9/32 JUDGMENT the mater and weigh the evidence as if he was conducting trial. The above principles have been propounded by the Apex Court in the case of Union of India v/s Prafulla Kumar Samal, (1979) 3 SCC 4. 7. It is argued by ld. Counsel Mr. Raju that in the present case, on analysis of the facts placed by the prosecution, it is not even possible to say that this is a case of a suspicion much less grave suspicion. In absence of suspicion or grave suspicion, discharge is permissible. On the contrary, Mr. Raju has hammered that mere suspicion or conjunctures that have been drawn by the investigating agency, the accused should not be asked to face the trial of a serious charge like the offence punishable under section 397 of IPC. According to Mr. Raju, even in cases where two views are possible, then only one view that no case is made out for the offence punishable under section 397 of IPC should be given weightage and preference and ld. Addl. Sessions Judge has failed in doing so. Mr. Raju has taken me through relevant para of the decision of the Apex Court in the case of Prafulla Kumar (supra) and this Court CR.RA/655/2004 10/32 JUDGMENT would like to reproduce the same:- “....... in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. “ 8. It is true that while dealing with an application under section 227 of CrPC, the Court should not make any attempt to evaluate the evidence and is not supposed to consider the probable defence plea. The papers of investigation should be read as they are. Act of weighing the evidence is legally permissible after conclusion of trial. However, the totality emerging from the papers of investigation itself and stand taken by the complainant as well as prosecution witnesses should be kept in the center and this would need discreet type of inquiry and some detailed study of the case papers submitted along with the chargesheet. The case of the prosecution is not only the complaint, but the entire story emerging from the papers of investigation including the CR.RA/655/2004 11/32 JUDGMENT Chalan-Report submitted under section 173(2) of CrPC so the accused can have a gist of the allegations or incriminating circumstances which the prosecution contemplates to bring against them before the court on conduction of the trial. According to Mr. Raju, rejection of the application has resulted into glaring injustice and the accused are now being asked to face the trial of a serious offence though basic ingredients for constitution of the offence punishable under section 397 of IPC are not emerging from the facts alleged by the prosecution and when the petitioners are able to convince the Court that there is an element of injustice, then it should be held that the Lower Court had erred in not transmitting the same into the substantive justice. Ld. APP Mr. Sood placing reliance on the decision in the case of Om Wati v/s State, 2001 SCC (Cri.) 685 ( (2001)4 SCC 333), has submitted that the order passed by the ld. Addl. Sessions Judge is a reasoned order and the application praying discharge has been dealt with by applying logic and law and, therefore, this court, in exercise of revisional jurisdiction, should not interfere with the findings. No reasons CR.RA/655/2004 12/32 JUDGMENT are required to be recorded when the charges are framed against the accused persons, but when the ld. Addl. Sessions Judge was asked to decide the application praying discharge under section 227 of CrPC, the Court merely has to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the Court is satisfied that the prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of section 228 of the Code. According to ld. APP Mr. Sood, it is statutory obligation of the High court not to interfere at the initial stage of framing of charge merely on hypothesis, imagination and far- fetched reasons which n law amount to interdicting the trial against the accused persons. The Apex Court has observed in the case of Om Wati (supra) that “self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the Court in the face. Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled-for and unjustified CR.RA/655/2004 13/32 JUDGMENT litigation under the cloak of technicalities of law.” In the cited decision, the Apex Court rejected the application praying discharge merely on account of observations and opinion incorporated in Post Mortem Report. Accused were chargesheeted for the offence punishable under section 302 of IPC. There was evidence otherwise admissible under section 32 of Indian Evidence Act and other documents including the inquest report allegedly disclosing the infliction of the injuries on the person of the deceased that has resulted into death. The High court, while discharging the accused for the offence punishable under section 302 of IPC, passed cryptic and non- speaking order reversing the finding recorded by the ld. Sessions Judge. The Apex Court observed that the High Court ought not to have interfered at the initial stage of framing of charges merely on hypothesis, imagination and far-fetched reasons. As observed above, the Apex Court also found that the attempt made by the accused was nothing but an attempt to protract the trial and such unscrupulous litigants should not be encouraged from protracting the trial. CR.RA/655/2004 14/32 JUDGMENT 9. It is a settled legal position that before framing of charge in terms of section 228 of CrPC, the Presiding Judge of the Court if asked, is supposed to pass a reasoned order while dealing with the application under section 227 of the Code and in a case where it emerges 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 a cross-examination or rebutted by the defence side, can not show that the accused committed a particular crime, then and then alone the Court can discharge the accused from that crime. It would not be logical or proper to say that the allegations are sufficient to frame the charge for certain offences and the accused should not mechanically be asked to face the charge of a much graver offence falling in similar category of the case punishable under a particular chapter of IPC or the offence punishable under any other Special Statute. The accused can positively pray that out of various charges, basic ingredients of a particular offence are missing and he could not be convicted even at the end of the CR.RA/655/2004 15/32 JUDGMENT trial for that particular offence and, therefore, he should be discharged from at least that particular charge or offence. 10. I am satisfied that the present Cri. Rev. Applications are not preferred by any unscrupulous litigants or with a view to protract the trial otherwise the petitioners could not have restricted their prayer when the matter was heard by the ld. Addl. Sessions Judge. While arguing for the petitioners, Mr. Raju, in response to the query raised by the Court, has fairly accepted that the say of the petitioners is that section 397 of IPC has been wrongly applied by the investigating agency and ld. Trial Judge ought to have discharged the accused from that offence directing the ld. Chief Metropolitan Magistrate to try the accused for rest of the offences. Ratio of the decision in the case of Kanti Bhadra Shah v/s State of West Bengal (2000)1 SCC 722, would not help the State because it is possible from the facts to infer that any decoity as defined under section 391 of IPC could be said to have been committed in the alleged incident, because CR.RA/655/2004 16/32 JUDGMENT to prove the element of decoity, the prosecution is supposed to establish following facts:- 1. involvement of five or more persons as an accused in the commission of the offence, 2. commission of the offence or an attempt to commit the offence must be conjoint; So, the intention of five or more persons/accused should be of committing a robbery or to make an attempt to commit robbery. Narration of incident, even as per the compliant and story unfolded further by the witnesses of the prosecution whose statements have been recorded by the investigating officer, does not disclose that five or more persons with an intention to commit robbery have committed robbery or an attempt to commit robbery was made. It emerges that some anger against the media personnels has been expressed in a violent manner and in expressing the anger or displeasure in a violent manner, some criminal wrong, prima facie, can be said to have been committed at the spot of incident. Without entering into the merits of the evidence collected by the prosecution as to the identity and individual act of the petitioner accused, it is CR.RA/655/2004 17/32 JUDGMENT possible for this Court to observe that merely because total number of accused are seven, the act of snatching of a video camera or other property has been described as a robbery. No property has been recovered from any of the accused or at the instance of the accused. Gold chain allegedly snatched by one of the accused when emerges to be an act of a wrong done by an individual, prima facie, it can not be equated with conjoint criminal wrong done by a group of five or more persons. Decoity is an offence which the legislature has made punishable at four stages, viz; 1. assembly for the purpose of committing decoity. Each of the person so assembled, is guilty under section 402 of IPC; 2. making preparation for committing decoity. Any one who makes preparation for committing decoity is punishable under section 399 of IPC; 3. an attempt by five or more persons (including the persons who aids such an attempt) to commit decoity; and 4. actual commission of robbery by five or more persons (including those who aid such commission). So, the accused persons named in the complaint or by any of the witnesses whose statements have been recorded, can be held guilty for the wrong CR.RA/655/2004 18/32 JUDGMENT individually committed by them, but that by itself would not be sufficient to infer in absence of any positive evidence that the group of persons had ever intended robbery or attempted robbery. Some witnesses were initially brow-beaten. Cameraman Kausharkhan and Driver Roopsingh Rathod were undisputedly in the court compound and had seen a mob of advocates. These two witnesses were informed by one another news Reporter Shri Ketan Trivedi as to the tense situation. Cameraman was of Zee TV and he was beaten and his camera was set at fire and, therefore, this Kaushar Khan and Roopsingh Rathod were asked to leave the court compound immediately by Shri Ketan Trivedi. It is the case of the prosecution that crowd geraoved the motorcar of one news channel “Aajtak” and thereafter they were pulled out of the motorcar by the mob and were given blows of fists and kicks by Advocates. Video camera was snatched from the hands of cameraman Kausharkhan who was sitting in the motorcar and the allegation is that same was broken to pieces by advocates. Video Cassettes lying in the motorcar were also burnt. Forcible pulling out a person from the motorcar under some wrong belief and CR.RA/655/2004 19/32 JUDGMENT causing damage to the property or properties of such persons, is not equal to robbery as defined under section 390 of IPC. For our purpose, it would be relevant to quote definition of robbery as defined under section 390 of IPC, which reads as under:- “390.Robbery.--In all robbery there is either theft or extortion. When theft is robbery.- Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful constraint. When extortion is robbery.- Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.” 11. The story unfolded by the prosecution witnesses and the complainant, does not fall in the definition of “robbery” in stricto-senso. The word “wrongful restraint” used in section 339 of IPC if considered, then it emerges that abridgment of a liberty of the prosecution witnesses against their will was not with CR.RA/655/2004 20/32 JUDGMENT a view to commit theft or with an intention to commit theft. In the same way, the act of giving fist or kick blows by the persons present in the mob was also not in furtherance of committing theft. For the sake of arguments even if the say of the prosecution witnesses is considered as narrated by them, I am afraid it would be difficult to link the accused with crime of committing robbery. Of course, it can be argued by the prosecution that the evidence which can be said to be a strong suspicion is there on record. So, the trial Judge could have framed the charge at the most for the offence punishable under section 392 of