CR.A/44/1989 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 44 of 1989 with CRIMINAL REVISION APPLICATION NO.33 OF 1989 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus SURENDRA P KANKARIA PSI CBI - Opponent(s) ========================================================= Appearance : Mr M.R. Mengdey, Addl.PUBLIC PROSECUTOR for Appellant(s) : 1, SERVED BY AFFIX.(N) for Opponent(s) : 1, MR YN RAVANI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 11/08/2008 ORAL JUDGMENT (COMMON) 1. Criminal Revision Application No. 33 of 1989 is directed against the proceedings initiated against CR.A/44/1989 2/9 JUDGMENT the accused before the learned Chief Judicial Magistrate, Ahmedabad (Rural), Mirzapur at Ahmedabad in Special Case No.8/87, whereby the learned Judge passed order below Exh.46 for not framing charge against accused No.3 under section 465, 471 and 120B of IPC and for framing charge under section 420 of IPC only. The applicant-State has also filed Criminal Appeal No.44 of 1989 challenging the order passed below Exh.50 in Special Case No.8/878 whereby the learned Chief Judicial Magistrate has granted probation to accused No.3 as he had pleaded guilty of offence punishable under section 420 of IPC. As the Appeal and the Revision are arising out of the same case and taking into consideration the facts of the case, both the Appeal and the Revision are required to be heard together and are accordingly heard finally and disposed of by way of this common judgment. 2. As per the prosecution case, the respondent-accused, along with two other accused persons were charge sheeted on the allegation that they entered into criminal conspiracy with an CR.A/44/1989 3/9 JUDGMENT intention to cheat the Bank and the Railways and in furtherance thereof, accused no.1 prepared four paid railway receipts dated 16.4.1984 in favour of accused No.3 and collected freight charges of the amount of Rs.2116/-. Though the goods were not despatched by the railways, on the basis of the aforesaid four railway receipts, accused no.2 fraudulently showed one wagon in the railway register to establish that the goods were despatched. Respondent-accused no.3 submitted the said railway receipts to the Bank of Baroda, GIDC Estate, Kalol Branch, District Panchmahals and the amount of more than Rs. 2 lakhs was credited into the account of accused no.3. Thereupon, it is found that a fraud was committed with the Bank and Railways and, therefore, a complaint was filed and after investigation was over, accused were charge sheeted by the CBI. The learned Chief Judicial Magistrate framed charges for offences under sections 420,465, 468 read with under section 120-B of IPC against accused no.1 and 2 and framed charges only under section 420 of IPC against accused no.3. Accused No.1 and 2 did not plead guilty while accused No.3 pleaded guilty to the CR.A/44/1989 4/9 JUDGMENT charge. Accused no.3 requested for granting him probation and the learned Chief Judicial Magistrate accepted his request and was released on probation on executing personal bond of Rs.2000/- with an undertaking to maintain good behaviour for a period of two years under section 360 of the Criminal Procedure Code. The said order is challenged by the State of Gujarat by filing this appeal. 3. The learned Chief Judicial Magistrate framed charges only under section 420 of IPC and not for the offence under sections 468, 471 and other offences against accused no.3. Heard the learned APP, Mr M.R. Mengdey for the State of Gujarat and Mr Y N Ravani, learned counsel for the CBI. 4. This court has gone through the original record. It is an admitted fact that charge sheet is filed by the CBI after making thorough investigation for the offences punishable under sections 120B read with sections 420, 465 and 468 of IPC against all the CR.A/44/1989 5/9 JUDGMENT accused. This court has also gone through the papers submitted along with the charge sheet. In the opinion of this court, prima facie, sufficient materials were there to frame charge under section 120B read with sections 420, 465 and 468 of IPC against all the accused. 5. A perusal of the charges framed by the learned Chief Judicial Magistrate at Exh.46 in Special Case No.8/87 shows that the learned CJM framed charge against all the accused for the above referred offences but in the last two lines of the charge, it is mentioned by the CJM that accused No.1 & 2 are charged for the offences under section 120B read with sections 420, 465 and 468 of IPC and that accused no.3 is charged only for offence under section 12B of IPC. From this, it is clear that some addition is made in the charges. It is signed by the learned Chief Judicial Magistrate on 18.11.1988. So far as the last two lines are concerned, it seems that for the reasons best known to the learned Judge, accused No.1 & 2 were inserted by making arrow by ink and in the second line also CR.A/44/1989 6/9 JUDGMENT by making arrow, added accused No.3 for the offence under section 420. No initial is made by the concerned Judge, though material improvements were found in the charges. Also previously, this court observed from the paper of charge sheet that prima facie, all the accused have committed offences under section 12B read with 420, 465, 468 of IPC. It is pertinent to note that the date of the charge is 10.10.1988 which is subsequently corrected with red ink – 10 as '18' and the month i.e.10 is corrected as '11' This also creates serious doubt in the mind of this court as to the reason behind the above correction by the learned Judge. It is also a matter of great surprise and shocking that on the same day i.e. 18.11.1988, report of the Probation Officer was called and it was produced on the same day which is not possible and prima facie, it shows that without making any kind of enquiry/verification, the Probation Officer has submitted his report in favour of the accused no.3. It is also a matter of concern that why the Probation Officer was present on 18.11.1988 though no report was asked by the court nor any notice was issued to him. It is also CR.A/44/1989 7/9 JUDGMENT pertinent to note that charge sheet was filed in 1987. Thereafter the accused persons have asked time on various occasions and till 18.11.1988, before framing of the charge, the accused had not pleaded guilty. But subsequently, on 18.11.1988, all these developments had taken place. So in the opinion of this court, this action of the learned Judge is very serious matter and this court would have directed for an enquiry in this connection, but as long lapse of time has elapsed, in the opinion of this court, by passing order for holding enquiry, no purpose would be served. Thus, in the opinion of this court, the learned Chief Judicial Magistrate, with ulterior motives or reasons best known to her, passed order in a manner which creates doubts. When this court has found abuse of process of law or miscarriage of justice, this court can exercise its revisional jurisdiction under section 397 of the Criminal Procedure Code and set aside any order passed by the trial court in revision. 6. As discussed above, charge Exh.46 also creates so many doubts and so also, the said charge CR.A/44/1989 8/9 JUDGMENT is required to be set aside and the learned Chief Judicial Magistrate is directed to frame charge again after considering the papers of the charge sheet without being influenced by the order passed by this court against all the accused persons and proceed with the matter afresh. The order passed by the learned Chief Judicial Magistrate below Exh.50 dated 18.11.1988, granting of probation to accused no.3 is also hereby quashed and set aside. 7. In the result, Criminal Appeal No.44 of 1989 and Criminal Revision Application No.33 of 1989 are allowed. The impugned order passed by the learned Chief Judicial Magistrate, Ahmedabad (Rural), Mirzapur at Ahmedabad dated 18.11.1988 in Special Case No.8/87 granting probation to accused No.3, is hereby set aside. The charge Exh.46 is also set aside. The learned Chief Judicial Magistrate is directed to frame charge again after considering the papers of the charge sheet, without being influenced by the order passed by this court against all the accused persons and proceed with the matter afresh. CR.A/44/1989 9/9 JUDGMENT 8. Registry is directed to send the Record of Special Case No.8/87 immediately to the learned Chief Judicial Magistrate, Ahmedabad Rural. The Chief Judicial Magistrate is directed to dispose of the case as early as possible, preferably within one year from the date of receipt of the record of the case. [M.D. SHAH, J.] msp