IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 956 of 2003 with CRIMINAL MISC.APPLICATION No 7677 of 2003 with CRIMINAL MISC.APPLICATION No 9825 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE B.J.SHETHNA and HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : YES Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus RAJUBHAI DHAMIRBHAI BARIYA -------------------------------------------------------------- Appearance: MR SN SHELAT, ADVOCATE GENERAL for Appellant State MR NITIN M AMIN for Petitioner No. 1 MR UA TRIVEDI for Petitioner No. 1 MR. SUSHIL KUMAR, SENIOR COUNSEL FOR MR SV RAJU for Respondent No. 1,15-16 MR BS PATEL for Respondent No. 2 MRS RANJAN B PATEL for Respondent No. 2 MS ASHA D TIWARI for Respondent No. 2 MR ASHUTOSH R BHATT for Respondent No. 3-4 MR HARESH J TRIVEDI for Respondent No. 5,14 HL PATEL ADVOCATES for Respondent No. 6-7 MR MJ BUDDHBHATTI for Respondent No. 8-9 MR NK MAJMUDAR for Respondent No. 10,12,17,19 MR SK PATEL for Respondent No. 10,17,20-19 MR HD VASAVADA for Respondent No. 11 MS KIRAN D PANDEY for Respondent No. 12 MR BHARGAV N BHATT for Respondent No. 13 MR KB ANANDJIWALA for Respondent No. 18 MR PUSHPADATTA VYAS for Respondent No. 21 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE B.J.SHETHNA and HON'BLE MR.JUSTICE J.R.VORA Date of decision: 26/12/2003 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE B.J.SHETHNA) 1. Against the judgment and order of acquittal dated 27.6.2003 passed by learned Additional Sessions Judge, Fast Track Court No.1, Vadodara, in Session Case No. 248/2002 acquitting the respondents accused for the offences punishable under Sections 147, 148, 149, 188, 504, 342, 427, 436, 395, 307 and 302 of the IPC, the appellant - State of Gujarat has filed the above Appeal. Thereafter, the State of Gujarat had filed the above Criminal Misc. Application No. 9677/2003 in the said Appeal and prayed that the appellate - State be permitted to produce the affidavits of four witnesses, namely, (i) Zahirabibi, Exh. 46, (ii) Sairabanu Habibulla Shaikh, Exh. 39, (iii) Sahejadkhan Hasankhan, Exh. 124 and (iv) Mohmad Asaraf Shaikh, Exh.123 on record and further evidence of the witnesses be permitted to be recorded and also be ordered retrial after quashing the entire proceedings. Thereafter, another criminal Misc. Application No. 9825 of 2003 was filed in the said Appeal by the State of Gujarat and prayed that it may be permitted to place on record the documents at "Annexure-A Colly". in the appeal, and the same may be considered as corroborative piece of evidence. The said application is filed under Section 391 read with Section 311 of the Criminal Procedure Code, 1973. 2. As per the hope expressed by the Hon'ble Supreme Court, when the matter was placed before this Court on 19.12.2003, we immediately started hearing of the Appeal as well as both the above applications and heard learned Advocate General Shri S.N.Shelat for the appellant State of Gujarat as well as learned defence Counsel Shri Sushil Kumar appearing for all the respondents accused for almost about a week and today at the fag end of the day, the marathon hearing of these matters has come to an end. 3. Having heard Shri S.N. Shelat, learned Advocate General for the appellant State of Gujarat and Senior Advocate Shri Sushil Kumar appearing as counsel for all the Advocates of the respondents accused we are fully convinced that there is no substance in all these matters including the Appeal and, therefore, they are required to be dismissed with detailed reasoned order as the matters were argued for several days before us. We would have liked to assign reasons and passed the detailed judgment in the open court, but today being the last day before the Winter Vacation and Court will be reopening only from January 12, 2004, therefore, we thought it fit to defer the assigning the reasons after Winter Vacation, while dismissing all these matters. 4. Having heard the learned Counsel for the parties, we are of the considered opinion that the Appeal as well as Criminal Misc. Applications are required to be dismissed and accordingly they are dismissed. Today is the last day before Winter Vacation. Reasons to follow. Accordingly this Appeal as well as both the applications stand dismissed. Bail bonds of the respondents - accused stand cancelled. R E A S O N S Hearing of this appeal and applications commenced on 19.12.2003, and thereafter we continuously heard these matters on 20th, 22nd to 24th and 26th of December, 2003. From 27th December, 2003 to January 11, 2004, Court had to remain closed because of the Winter Vacation, therefore, on the fag end of the day i.e. 26.12.2003, without assigning any reasons, all these matters were dismissed and "Reasons" were to follow. Now, we are assigning detailed reasons for the dismissal of these matters. 1. At the outset, it may be stated that, learned Senior Advocate Shri Sushil Kumar, appearing as Counsel for all the learned Advocates of the respondents accused, had vehemently submitted that the State of Gujarat had filed the Appeal against the impugned judgment and order of acquittal, passed by the learned Trial Judge, only because it was challenged by National Human Rights Commission (for short "NHRC") before the Supreme Court by way of SLP, after seeking permission of the Supreme Court on 8.8.2003. He submitted that the impugned judgment and order of acquittal passed by the learned Trial Judge is absolutely just, legal and proper, and in normal circumstances, it should have been accepted by the State, but under the compelling circumstances, the State had filed this Appeal and put all the respondents accused to a great economic loss and undue harassment. He also submitted that NHRC, which is an AUGUST Independent Institution, ought not to have taken undue interest in the matter and straightaway approached the Supreme Court. He also submitted that it was very much doubtful whether Institution like NHRC can become litigant before any court. According to Mr. Sushil Kumar, NHRC has no locus standi to challenge the impugned judgment and order of acquittal straightaway before the Supreme Court by way of SLP by bypassing the High Court. He also submitted that sofar the Hon'ble Supreme Court has not finally adjudicated the question as to whether such SLP against the judgment and order of acquittal passed by the Trial Judge is maintainable before it under Article 136 of the Constitution or not? therefore, this Court should not hear and decide this acquittal appeal till the matter pending before the Supreme Court is finally decided. He also submitted that the Trial Court is subordinate to this Court under the Constitution, therefore, this Court can always issue any directions to the Trial Court, but this Court, is not subordinate to the Supreme Court. He submitted that the Supreme Court can only quash and set aside the judgment and order passed by this Court, in its power under Article 136 of the Constitution, but it cannot issue any direction to this Court to hear and decide the Appeal at the earliest. He, therefore, submitted that such directions issued by the Supreme Court, should not be taken seriously, and the acquittal appeal be heard in normal course, as there is no urgency in the matter. He also submitted that this Court is taking up old criminal conviction appeals of 1990 onwards, where the accused persons are in jail since number of years, therefore, preference should be given to those matters in which accused are lingering in jail since years and not to this acquittal appeal. He also submitted that till the SLP filed against the impugned judgment and order of acquittal passed by the Trial Court is not decided by the Supreme Court, this Court should not decide the State Appeal filed against the order of acquittal passed by the Trial Court because by keeping SLP pending before it against the same judgment and order of acquittal, indirectly undue pressure is brought on this Court. He also submitted that this Court may not decide the State Appeal till the Supreme Court finally disposed of SLP pending before it, as sofar the Supreme Court itself has not decided the maintainability of such SLP filed directly against the judgment and order of acquittal passed by the Trial Court before it. Alternatively, he submitted that if this Court does not accept any of the preliminary objections about the hearing of the appeal and decide to hear and dispose of the Appeal, then, without being swayed away of the observations made by the Supreme Court in its order passed in SLP and other cases, it may decide the said Appeal and the applications filed in it only on merits and in accordance with Criminal Law, which is prevailing in this Country till the day. The State of Gujarat has filed this Appeal against the impugned judgment and order of acquittal passed by the Trial Court, but it cannot be said that because NHRC challenging the impugned order of acquittal passed by the Trial Court directly before the Supreme Court by way of SLP, therefore, under pressure or duress, the State had to file this acquittal appeal before this Court. It may also be stated that the impugned judgment and order of acquittal was passed by the Trial Court on 27.6.2003, period of limitation to file an Appeal against an order of acquittal was 90 days in the State of Gujarat, which period would have expired somewhere on 25.9.2003. As we all know that before filing the appeal and challenging the order of acquittal, lengthy procedure has to be followed. After receiving the judgment and order of acquittal, the Public Prosecutor, who conducted the case, has to apply his mind and having carefully gone through the same, if he is satisfied, then, he may recommend the case for filing appeal against the order of acquittal to the State through the concerned authority. On receiving his opinion, the Legal Department may consider the proposal and decide as to whether appeal should be filed or not? Under the circumstances, if the appeal is filed against the judgment and order of acquittal passed by the Trial Court by the State of Gujarat in this Court on 7.8.2003, then, by no stretch of imagination, it can be said that under compulsion or duress the State had filed the acquittal appeal in this case. When the matter filed by NHRC against the judgment and order of acquittal passed by the Trial Court is pending before the Hon'ble Supreme Court, and the Hon'ble Supreme Court itself has kept the question open regarding the maintainability of such appeal before it, then, it would not be proper on our part to express any opinion about the contention raised by learned Senior Advocate Mr.Sushil Kumar on locus standi of NHRC. It is true that sofar the Hon'ble Supreme Court has not adjudicated the question, whether such SLP before it against the impugned judgment and order of the Trial Court is maintainable or not? However, we are of the considered opinion that merely because the case is pending before the Apex Court, that fact itself should not debar us from hearing and deciding the State Appeal. It is also true that this Court is taking up old conviction appeals of 1990 onwards, where the accused are in jail since number of years. It is also true that this Court is not subordinate to the Hon'ble Supreme Court. It is also true that the matter had not gone to the Supreme Court against the order passed by this Court, in which such directions are issued. It is also true that the matter is still pending before the Hon'ble Supreme Court against the judgment and order of acquittal passed by the Trial Court. But, we are of the considered opinion that merely because the Hon'ble Supreme Court has thought it fit to keep the matter pending before it, it can never be said that undue pressure is brought on this Court to decide the State Appeal. It is wrong to say that this Court may not be able to decide the appeal strictly in accordance with law because matter is pending before Supreme Court. It is undermining the independence of this Court. 2. Learned Advocate General Shri Shelat had brought to our notice the order dated 17.10.2003 passed by the Hon'ble Supreme Court in Writ Petition (Criminal) No.109/03, wherein it is observed by the Hon'ble Supreme Court that, " We hope that the hearing of the appeal will commence on 1st December, 2003 and the matter will be decided expeditiously." From the bare reading of the order dated 17.10.2003 passed by the Hon'ble Supreme Court, it is more than clear that, the Hon'ble Supreme Court has not issued any direction to this court to decide the Appeal at the earliest. It has only expressed hope that the hearing of the appeal may commence on 1st December, 2003 and the matter be decided expeditiously. It may be stated that while admitting this Appeal, Division Bench of this Court (Coram: D.K. Trivedi & M.S. Shah, JJ) had fixed the hearing of the Appeal on 1st December, 2003. On that day, it was placed before another Division Bench of this Court (Coram: K.R. Vyas & K.M. Mehta, JJ), and that being the first day of hearing and time was prayed for by the Advocates of the accused for preparing themselves in the matter, therefore, as stated by the learned Advocate at the Bar, the hearing of the matter was kept on 17.12.2003. However, on 17th December, 2003, when it was placed before another Bench (Coram: K.R. Vyas & A.L. Dave, JJ), Hon'ble Mr. Justice A.L. Dave had exception to the hearing of this Appeal and, therefore, the matter was placed by the Office of this Court before the Hon'ble Chief Justice on the Administrative side for placing it before the appropriate Bench. Thereupon, the Hon'ble Chief Justice ordered to place these matters before another Division Bench (Coram: J.M. Panchal and M.C. Patel, JJ). Accordingly, the matter was placed by the Office on 18.12.2003 before Hon'ble Mr. Justice J.M.Panchal, senior member of the Bench, for obtaining convenient date and time of His Lordships for hearing of these matters. However, J.M. Panchal, J. ordered that the matter may receive consideration by a Bench of which he is not one of the members". In view of the endorsement made by J.M. Panchal,J., the matter was immediately placed it once again before the Hon'ble Chief Justice of this Court on that very day i.e. on 18.12.2003. Thereupon, the Hon'ble the Chief Justice passed an order on that very day i.e. on 18.12.2003 to post these matters before this Division Bench on 19.12.2003. Accordingly, it was placed before us. Due deference to the hope expressed by the Hon'ble Supreme Court, immediately, we started hearing of these matters and continuously heard it for six days. We may also state that the Hon'ble Supreme Court has also made it clear in its order dated 17.10.2003 that it has not expressed any opinion or made any observation as regards the merits of the criminal appeal pending before this Court. It has also observed that in case any observation made by it, then it will not come in the way of the High Court while deciding the appeal on merits. Thus, there is no substance in the submission of learned Senior Counsel Shri Sushil Kumar that the Hon'ble Supreme Court had issued directions to this court treating it as subordinate court. There is also no substance in the submission that by keeping SLP pending, undue pressure is brought on this court to decide the appeal, and that this court may not be able to decide the appeal on merits and strictly in accordance with the Law prevailing today in the country. 3. Mr.Sushil Kumar, learned Senior Advocate then submitted that NHRC had directly approached the Supreme Court against the impugned judgment and order passed by the Trial Court in this case only because of media hype, though the impugned judgment and order of acquittal passed by the Trial Court is just, legal and proper. He had gone to that extent by submitting that media and some, without any basic knowledge and concept of Criminal Law, have almost found the accused guilty much before the State appeal filed against the impugned judgment and order of acquittal passed by the Trial Court under Section 386 of the Criminal Procedure Code was even heard and decided by this High Court, which is highly improper. Mr. Sushil Kumar had vehemently submitted that it was unfortunate that none else but the Chairman of NHRC who is former Chief Justice of the Supreme Court of India, severely criticized the impugned judgment and order of acquittal passed by the learned Trial Judge. In this case immediately after the judgment was pronounced by the learned Trial Judge, without even looking at it he has called it 'miscarriage of justice'. He submitted that inspired by this, one and sundry, started to criticize the judgment of the learned Trial Judge without even looking at it or applying their mind and understanding the correct position of law. He had also submitted that it was highly improper on the part of the Chairman of the NHRC to call the judgment as miscarriage of justice, which may even amount to contempt of the court. He had also submitted that when the Chairman of the NHRC realized his mistake after going through the judgment and order of acquittal, then, only with a view to save the situation, under the compelling circumstances, he decided to approach the Supreme Court and accordingly matter was filed by NHRC before the Supreme Court and the impugned judgment and order of acquittal passed by the learned Trial Judge has been challenged by bypassing this High Court. He also submitted that after the Chairman of the NHRC made the statement that the judgment and order of the learned Trial Judge amounts to miscarriage of justice, then there was a tremendous pressure on him from media, therefore, though the judgment and order of the learned Trial Judge was absolutely just, legal and proper and there was no miscarriage of justice, NHRC had to approach the Supreme Court directly against the judgment and order of acquittal passed by the Trial Court. He, therefore, submitted that this Court may straightaway dismiss the appeal and the applications filed in it as there is no substance in any of it. Whether the aforesaid statement made by the Chairman of NHRC immediately after the pronouncement of the judgment and order of acquittal by the Trial Court, amounts to contempt of court or not? Whether the NHRC could directly approach the Hon'ble Supreme Court against the impugned order of acquittal passed by the Trial Court or not? and all other questions raised by Mr. Sushil Kumar cannot be answered by this Court because matter filed by the NHRC is very much pending before the Hon'ble Supreme Court and we are of the considered opinion, that this Court is not a proper forum, where such questions can be raised. Media is not a party before this Court, therefore, it would not be proper on our part to express our opinion about it. But, we must state that this Court is the highest court of the State and by no stretch of imagination, it can be said that because of the media, this Court is likely to be swayed away and decide the appeal not on merits or not in accordance with law. It is undermining the independence of the Judges of this court, who have always decided the cases without fear or favour and without being influenced by anything, strictly only in accordance with law. This case is also decided only on merits and strictly in accordance with law, after hearing both the learned counsel Shri S.N. Shelat, learned Advocate General for the State of Gujarat appellant and defence counsel i.e. Shri Sushil Kumar for the respondents accused. 4. This bring us to the submissions made by the learned Advocate General in support of his case in acquittal appeal i.e. Criminal Appeal No. 956 of 2003. Learned Advocate General Shri Shelat, firstly, submitted that under Section 386 of the Criminal Procedure Code, 1973 (for short "Code"), this Court being appellate court, has power under Clause (1) of Section 386 to order the retrial. In this case, according to Mr. Shelat, learned Advocate General, this court should consider this case as an exceptional case, which requires retrial in view of the lapses on the part of the Investigating Agency, Prosecution and the learned Trial Judge, who conducted the trial in this case. In support of his submission, learned Advocate General submitted that (i) one witness after another resiled from their statements giving rise to a reasonable suspicion that they have been coerced into doing so; (ii) the Hon'ble Court and the Prosecutors have not put proper questions to the witnesses who were declared hostile as to ascertain why they were resiling; (iii) on the same day i.e. on 9.5.2003, four witnesses have been examined and they were declared hostile. Neither the court, nor the prosecutor, had taken any care about it when subsequently Zahirabibi examined on 17.5.2003 to see that she does not turn hostile. He submitted that it was the duty of the Public Prosecutor and the Court to give her protection when four witnesses have already turned hostile on 9th May, 2003, and (iv) in all 73 witnesses were examined by the prosecution, but out of them, as many as 37 witnesses turned hostile including injured witnesses and eye witnesses to the incident as well as the panch witnesses. He submitted that it is difficult to believe that the injured witnesses, whose near relatives burnt alive or murdered in the incident, would not support the prosecution. This shows that the trial was not fair and it was heavily loaded in favour of the accused and the witnesses had not deposed fearlessly. In support of his submission of setting aside the judgment and order of acquittal passed by the learned Trial Judge and ordering retrial, Mr. Advocate General had cited following judgments of the Hon'ble Apex Court and High Courts, which are as under : (i) Raghunadan vs. State of U.P., reported in AIR 1974 SC 463. (ii) State of Rajasthan vs. Ani @ Hanif, reported in AIR 1997 SC 1023. (iii) State of Gujarat vs. Mohanlal, reported in AIR 1987 SC 1321. (iv) Rajendra Prasad vs. Narcotic Cell, reported in AIR 1999 SC 2292. (v) Ramanna vs. State of Maharashtra, reported in 2003 (4) Crimes 33. (vi) Mohanlal Shamji Soni vs. Union of India, reported in AIR 1991 SC 1346. (vii) State of Gujarat vs. Satwara K. Mavji, reported in 1993 (1) GLH 171. (viii) Gulammohmed Mohmed Yusuf vs. State of Gujarat, reported in 1994 (2) GLH 82. (ix) Vishal Rajendra Trivedi vs. State of Gujarat, reported in 1995 (2) GLH 1102; and (x) State of Gujarat vs. V.N.Rajpara (Criminal Misc. Application No. 1863 of 2001). 5. As against that learned defence Counsel Shri Sushil Kumar for the respondents - accused submitted that this Court has wide powers under Section 386 of the Code for retrial of the case, but no ground is made out in this case for ordering retrial as submitted by the learned Advocate General. He submitted that in the instant case, now the opportunity cannot be given to the prosecution case to fill up the lacuna. In support of his submission, Mr. Sushil Kumar has relied upon the following judgements of the Supreme Court and other High