IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No : 419 of 1999 with CRIMINAL REVISION APPLICATION No : 464 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 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 : NO 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 Civil Judge? : NO -------------------------------------------------------------- NANUBHAI VASTABHAI KATARIYA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR BB NAIK for Petitioner MR BY MANKAD ADDL PUBLIC PROSECUTOR for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH Date of decision: 10/09/1999 ORAL JUDGEMENT #. Rule in both the Criminal Revision Application. Mr.B.Y.Mnkad waives service of rule. #. Considering the nature of litigation pending and number of accused who are under trial prisoners in the Sessions Case, pending before the learned Sessions Judge, the matter is taken up for final hearing by consent. #. The petitioner is the original accused No.4 in Criminal Case registered at Khavada Police Station vide C.R. No : 15/98. On completion of investigation, the Police filed Chargesheet against all accused mentioned in the Chargesheet and as the some of the alleged offences are punishable with the extreme penalty, the case against the applicant, along with the other accused, has been committed to the Court of Sessions of District Kutch at Bhuj. Two Sessions Cases are registered as some of the accused are chargesheeted by a supplementary chargesheet and Sessions Cases are registered vide Sessions Case No : 106/98 and 57/99, respectively. #. The learned Sessions Judge of Kutch-Bhuj, after committal, was intending to frame charge against the accused and the present petitioner had applied vide application Exh.29, that Court of Sessions should not frame any charge against him under Section 227 and 228 of CrPC and prayed that he should be discharged from the offences, alleged to have been committed by him under Section 227 and 228 of CrPC. The revisioner of Revision Application No : 464 / 99 had also applied along with other accused for discharge vide joint application Exh.77. The applications preferred under Sections 227 and 228 of the Code of Criminal Procedure, filed by these accused persons (Exs. 29 and 77), were heard by the learned Sessions Judge of Kutchha-Bhuj and vide order dated 27th July, 1999, the learned Judge, dismissed both these applications. #. Feeling aggrieved by the order rejecting the application Ex.29, the original accused No . 4 has filed Revision Application No : 419/99 and original accused No. 7 and 9 and the accused brought on record by a supplementary chargesheet namely Ramesh Dharansinh Solanki, jointly preferred the above Revision Application No : 464/99. The petitioner original accused No.4 (hereinafter referred to as `accused No.4' for the sake of convenience) is a accused - Officer serving with the Forest Department as Class-I Officer and was serving at the relevant time when the alleged offence was committed, as Dy.Conservator of Forest in the Eastern Division of District Kutch and the revisioner of Revision Application No : 464/99 are also Forest Officials. The petitioner No.1 of Criminal Revision Application No : 464/99 is a Forester and rest of the two applicants are Forest Guard. It is not a matter of dispute that all the petitioners were present near the spot of incident at relevant time and date in the capacity of Government Servants and all the four are Civil Servants or say Public Servants within the meaning of Sec.21 of IPC. They were on the spot of event, on account of their staff, working in the Forest Division of West. On going through the record, it transpires that one Mr.Vakani who is also accused and chargesheeted for the alleged offence, was heading that Division and he was Asstt. Conservator of Forest of Forest Division West of District Kutch, at that relevant time. #. I would like to point out the case put forward by the police against all the accused in the chalan filed before the Criminal Court, so that the nature of allegations against the present petitioners and the case of prosecution against the present petitioners can be appreciated in proper perspective. #. The above case of the prosecution in nutshell is narrated for the purpose of appreciating the case of both these Revision Applications, second part is more relevant for the purpose. It can be said that the present applicants have to face the trial, as they had abetted the alleged crime and as they failed in not performing their respective duties, by illegal omission. The petitioners have abetted the crime, in view of the Secs. 107 and 108 of the Code of Criminal Procedure. In the incident, one Bavaji Jadeja is murdered by a group of assailants who was inimical to them. This Bavaji was one of the informant to the Forest department. According to the say of the prosecution, he had given some information to the Conservator Forest, Mr.Shukala through one of the responsible citizen of District : Kutch Bhuj. It is on the record that Mr.Anup Shukala,an IFS Officer, was heading the Forest Circle of District : Kutch and had directed Mr.Vakani to act in response to the information given by Bavaji Jadeja. Mr.Vakani was told that he should proceed to village Loriya and meet Mr.Bavaji Jadeja before 12.30 and he was also directed to act on receipt of information given by Bavaji Jadeja. It is the case of the prosecution that accused No.4 Dy.Conservator of Forest of Forest Division (East) was also asked by Mr.Anup Shukala that he should reach to village Loriya and meet Mr.Vankani. he was also asked to help Mr.Vakani in his duties. One Dy.Conservator of Forest Mr.Varma was also similarly directed by Mr.Anup Shukla, the totality in this regard satisfactorily indicates that Bavaji Jadeja was to give some information with regard some Forest offence committed in Forest Division (West). It is not necessary to narrate the chain of events, at this stage, but it is important to note that all the Forest Officials chargesheeted by the Police, were present at the scene of incident, where Bavaji Jadeja was murdered. According to the case of the petitioners, especially, accused No.4, is that while dealing with the application filed by him in the Court of learned Sessions Judge, under Sections 227 and 228 of the Cr.P.C., the learned Sessions Judge has not considered vital relevant aspect, though they were brought to the notice of the learned Sessions Judge, during the course of submission, which goes to the root of the matter of the case. The application Exh. 29 is an application given by Accused No.4. The petitioners of Second Revision Application were undisputedly serving under the accused No.4 in the same Division and were accompanying Mr.Katariya on duty with Mr.Vakani, as per the instructions received by him, from the higher officer i.e. Mr.Anup Shukala, Conservator of Forest, heading the Circle. #. The submissions made by the learned counsel appearing for the petitioner Mr. Katariya, accused No.4, Mr.B.B. Naik is adopted by Mr.Dave, when he was arguing his Revision Application. Mr.Naik has submitted at length but on summary submissions can be divided in four major parts. Under all these four parts. Mr. Naik ventilated the grievance of accused No.4. In the first part Mr.Naik has submitted that the learned Sessions Judge has narrated some wrong fact and this wrong narration has resulted into an incorrect decision. Second main grievance that the learned Sessions Judge has assumed or presumed many things for which he was not authorised legally. The third part of grievance is that the learned Sessions Judge has equated the case of accused No.4 and 5. The accused No.5 is Asstt. Conservator Mr.Vakani, heading the Western Division and was holding his own private fire arm namely revolver at the relevant point of time. While dealing with the case of the accused Nos.4 & 5 equally and paralelly, the lower court has caused some prejudice to the accused No.4 and last part of the grievance is that the learned Sessions Judge has not specifically mentioned in its order that which of the ingredients in the police papers links the accused No.4 with the crime, especially crime committed by abetting the original accused. #. Mr.Naik submitted that accused No.4 was knowing the fact of informing Bavaji of group headed by accused No.21 Mohan Bhanusali, or the enimocity between them, without direct evidence is presumed. The statutory duties enumerated in the Forest manual and the Act, or the protections, otherwise available to the Civil Servants, are also not considered. The learned Sessions Judge, according to Mr.Naik, has erred in holding that no conscious steps were taken, or no attempt was made even in preventing the forest crime. Roll of a Conservator is not considered conveniently and ignored. Non performance of duties or exercise of power, as higher officer by accused No.4, is an illegal inference and not based on the fact available on record. Mr.Naik has submitted that this Court has not obliged to evaluate the evidence nor the Sessions Judge is obliged to appreciate the evidence available on record, while dealing with the application filed under Sections 227 and 228 of the Code of Criminal Procedure. The plain careful reading of the police papers, including the documents available on record, should be done and it is must. On the strength of totality of the facts available on record, the Court should record its finding and the learned Sessions Judge has erred in not doing so. ##. Mr.Naik has taken me through the police statement of all important witnesses including eye witnesses who are named in the chargesheet. The documents produced by the forest officials including one of the accused, the Assistant Conservator of Forest Mr.Vakani during the course of investigation are also referred. Looking to the police papers, the prosecution relies on the statement of one Mr.Yogendra L. Verma, a Forest Officer, who was dealing with the vigilance cell in the concerned forest circle. Though Mr.Naik has tried to evaluate all these witnesses to some extent during his submission, this Court can ignore this submission, but the Court has to consider the statements as it they are. The applicants should not be asked to face the trial only because they were present at the spot of the incident and the investigating agency found the conduct or behavior of the petitioners unusual by running away from the spot of incident. The case of the prosecution so far as the present petitioners are concerned, as stated above, is under Section 107 and 108 of Indian Penal Code. Section 107 is defining act which can be said to be an abetment. It says that a person can be said to be an abettor if he does a particular thing and act in aiding the crime committed. To have more light on the words "Abetment" and "Omission" with special reference the word "Duty". I would like to reproduce Section 107 and 108 of Indian Penal Code as under; "107. Abetment of a thing :- A person abets the doing of a thing, who - First - Instigate any person to do that thing; or Secondly- Engages with one or more than person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. 108. abettor A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor." ##. When a query was raised, Mr.Mankad, learned APP has fairly conceded that the case against the present petitioners solely bank on the clause "thirdly", means according to the prosecution, the petitioners had intentionally aided by illegal omission,and overtact or participation in the offence committed against Bavaji Jadeja is not alleged against any of the petitioners so that the case of intentional aiding "by an act" is missing against the petitioners. It is the case of the prosecution that by doing the illegal commission, the petitioners have abetted the main offenders who have committed the murder of Bavaji Jadeja and other offences allegedly committed by other accused, who are referred in the first part of police chalan filed under Section 173 of Code of Criminal Procedure. The petitioners alleged to have aided by not taking due care and / or caution. It is also alleged that though one of the forest officers was holding a fire arm, has not cared to use it inspite of request of one of the witnesses viz. Makbul. This Makbul has stated that he had requested accused No.4 and 5. It is argued by Mr.Mankad, learned APP that accused No.4, as superior in rank, was otherwise bound to direct accused No.5 to use the fire arm. Whether in absence of any positive police statement on record, will it be legal to presume that accused No.4 had any knowledge of the fact that accused No.5 was holding a fire arm, and the same is loaded with ammunition. For the sake of arguments, even if so assumed that accused No.4 was aware of this fact, whether alleged inaction on the part of the accused No.4 is satisfactorily established by the investigating agency, prima facie, is the question. There is nothing on record under which it can be said that the accused No.4 had not said anything about the use of the fire arm to accused No.5. It is also not on record that accused No.4 was authorised to give such direction to accused No.5 who was holding his own private revolver to save a person or persons other than the accused No.5 himself. Mr.Naik has rightly submitted that the learned Sessions Judge has erred in not appreciating two material facts viz (i) that the truck arrived at the spot of incident with a group of 60 to 70 assailants with weapons had dashed with the jeep car of accused No.4. It is not the matter of dispute that the jeep car of accused No.4 was damaged because of the hit given by the truck reached to the spot and (ii) that one of the forest officials Ratneshwar had sustained injuries, may be simple or superfluous, by fire arm on or near his neck. Mr.Y.L. Verma has stated about this in his statement. Mr.Mankad, learned APP has fairly conceded that though injury certificate of Forester Mr.Rateshwar is not on record today with the police chargesheet but it is a fact that Rateshwar has sustained some injury and the same was because of fire arm used by one of the assailants accused who elighted from the jeep car and / or from the truck reached to the spot subsequently. ##. The prosecution has tried to bring out the case that the crowd had come to the spot only to finish Bavaji Jadeja and / or his associates or friends and the Forest Officials have failed in protecting them though Bavaji Jadeja was informant of the department of the petitioners but it seems that group had rushed to the spot to create a terror so that anybody who intends to prevent the forest offence, must be taught lessons so they dare not try again to such an extent. Mr.Naik has submitted that the statements of prosecution witnesses should be read in that light and the learned Sessions Judge has failed in doing so. ##. It is further argued by Mr.Naik that the applicants (accused) were present on the spot but had no connection with actual commission of the offence committed by the assailants who had come to the spot in two above referred vehicles viz. jeep car and the motor truck. Clause `thirdly' of Section 107 is relevant again as it is the case of the prosecution that the applicants are abettors for illegal omissions by not performing their duties. It is not necessary to refer each argument advanced by the learned counsel appearing for the parties because the same can be appreciated even during the course of discussions. ##. A plain meaning of word duty carries various meanings but so far as the present case is concerned, as argued, meaning or the legal or obligatory duties only can be considered as applicants were on duty upon instructions by the superiors. As per Dictionary the word Duty mean :- (i) "(1) that which one is expected or required of one; characterized by doing one's duty : a dutiful citizen; a dutiful child, 2. the binding or obligatory force of that which is morally or legally right; moral or legal obligation, 3. action of a task required by one's position or occupation; function; the duties of a clergyman, 4. the respectful and obedient conduct due to a parent, superior, elder, etc. 5. an act or expression of respect; 6. a task or chore which one is expected to perform, It is your duty to do the dishes. 7. Mil a. an assigned task, occupation or place of service. etc. : ##. It is argued that the learned Sessions Judge has committed an error in interpreting the word duty and plain reading of the order takes us to conclusion that the learned Sessions Judge has not interpreted the word duty only as legal duty or obligatory duty, in capacity of public servant but, has also the moral duties or social obligations in a very broad compass. Mr.Naik has pointed out that duties of accused No.4 are defined in forest manual. Rest of the forest officials are also entrusted certain duties and their duties are also enumerated in the forest manual and there is no iota of evidence on record under which it can be said or inferred that any of the petitioners including the accused No.4 has violated any of the duties cast on them by the manual. The relevant portion of the manual if quoted would be helpful in recording logical conclusions. "(c) Deputy Conservators of Forests : Deputy Conservators of Forests are responsible, for the administration of each forest Division and the execution of works in their charge, including the Five Year Plan Schemes. They arrange for the exploitation, recreation and protection of forests according to sanctioned Working Plans and other orders. They conduct sales, enter into contracts, supply material to departments and the public, realise revenue and control expenditure. They deal finally with forest offence cases. (d) Deputy Conservators of Forests, working plans : A working plan Deputy Conservator of Forests' work consists of the survey of growing stock, enumeration of trees and analysis of stems to determine the rate of growth of the principal species with special reference to the soil and climatic conditions of each locality and, on the basis of data so collected, preparation of working plans for felling, regeneration, silvicultural treatment and protection of forest, while providing for the due exercise of the rights and privileges of the people including grazing of cattle. These officers are also required to scrutinise control forms kept in connection with the Working Plans in the Divisions of each Circle and to conduct research in subjects specially allotted to them in collaboration with the Silviculturist cum Forest Utilization Officer. (e) Deputy Conservators of Forests Extension: The Deputy Conservators Of Forests, Extension, work according to the orders issued by the Conservators of Forests concerned from time to time in furtherance of the objectives of extension forestry, raising plantations of fuel wood in Government waste lands and raising suitable trees along the roadsides, canals and railways.." "Foresters and guards on Special Duty : Foresters and Guards employed on jobs like afforestation works, checking depots, sale deposits, sawmill, etc. shall work according to the rules in vogue and orders of the superior officers." ##. There is no evidence under which it can be inferred that any of the applicants including accused No.4 was knowing the registration number of the said vehicle viz. truck which was detained by Mr.Vakani before couple of minutes earlier to the incident under the information of deceased Bavaji Jadeja. There is no evidence in the police papers under which it can also be inferred that accused No.4 or his forest guard sitting with him in the jeep car had seen any of the assailants who had reached to the spot in the jeep car prior to the incident in the nearby area where Bavaji Jadeja was assailed. It is there on record that son of accused No.21 Mohan Bhanusali had some conversation with the Assistant Conservator of Forest Mr.Vakani at one nursery where two trucks loaded with charcoal were detained and he had gone there in a Jeep Car and from that very jeep car 10 to 12 persons reached the spot before the incident. The police papers say that the accused No.4 or his subordinates who were in the jeep car had never seen jeep car of the accused persons prior to their arrival at the spot of incident. So, it would not be legal or proper to assume or presume anything against the petitioners that immediately on the arrival of the jeep car and / or truck, accused No.4 should have ordered the staff available on the spot to arrest those persons or any of them. On the contrary, according to the police papers, in couple of minutes after arrival of the jeep, incident started. Arrival of truck had given indication that the group was in a furious mood. Dashing of the motor truck with the jeep car of the forest officer whether was accidental or intentional is the question. The petitioners are chargesheeted because the investigating agency found them responsible for the offence, as according to the agency, they have committed the offence of abetment. Section 108 of Indian Penal Code defines abettor. The prosecution intends to read explanation (1) under section 108 of IPC with clause `thirdly' of Section 107 of the IPC. Considering the case law on the subject, this Court cannot appreciate the evidence available on police record and if this Court does this venture then it may adversely prejudice the case of either party who has to face or to prosecute the trial. So modus of the applicant accused was of an abettor or not, should not be concluded on appreciation of evidence, but simultaneously, the Court cannot ignore the plain reading of the papers of investigation and the picture emerges from the story put forward by the prosecution. Say of the accused also cannot be ignored totally. Every citizen is bound to omit certain things which is illegal to him but the question is whether anybody is bound not to omit merely because thing which was required to be acted upon was legal. The petitioner being forest officials were not bound to arrest the person who commits the criminal offence. This Court is in agreement with the submission that any private person may arrest or caused to be arrested any person who in his presence commits non bailable and cognizable offence or also can arrest any proclaimed offender without unnecessary delay. But it would not be legal to say that such private person is bound to do certain act which he might be otherwise entitled to do. Interpretation of Section 43 of CrPC in special reference to Section 43 of IPC, would go to show that it is a privilege of a private person to do an act of arrest of the offender referred to in this section but it is not his legal obligation to do so. Mr.Naik has rightly argued that if