)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 804 of 1998 (Arising from the decision in Criminal Appeal No. 256/85) For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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? -------------------------------------------------------------- MAHENDRA HARJIVAN LUHAR Versus STATE OF GUJARAT AND OTHERS -------------------------------------------------------------- Appearance: MR KM SHETH for Petitioner MR S.N.SHELAT, ADDL. ADVOCATE GENERAL WITH MR KAMAL MEHTA, ADDL.PUBLIC PROSECUTOR for Respondent Nos. 1 to 4 MR SUDANSHU PATEL, ADVOCATE FOR THE RESPONDENT NO.5 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE A.L.DAVE Date of decision: 05/02/99 ORAL JUDGEMENT: (Per R.K.Abichandani,J.) This petition raises a somewhat unusual and peculiar situation arising from the decision of this Bench in Criminal Appeal No.256 of 1985, allowing the acquittal appeal preferred against the judgement and order dated 14.11.1984 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No. 34 of 1984, acquitting the respondent of the charges of robbery, murder and receiving stolen property. The case of the petitioner Mahendra Harjivan Luhar is that he has been wrongly put behind bars though he was not the real accused in the Sessions Case and the respondent No.5 Ratilal, his younger brother had been tried for the offences, under his name. According to the petitioner, he is the eldest amongst five brothers and the names of his other brothers are Himmat, Ratilal, Narsi and Ganesh. It is stated in the petition that on 12.6.1984, Rajkot Police had arrested the petitioner's brother Ratilal the respondent No.5 herein, in connection with the offences punishable under Sections 302, 459, 397 and 411 of the Indian Penal Code and it was the respondent No.5 who was taken in custody during the trial of Sessions Case No. 34 of 1984 in the Sessions Court at Rajkot. It is the case of the petitioner that the petitioner's brother Ratilal who was tried in the name of Mahendra was acquitted on 14.11.1984 and released from jail on that day. Thereafter, the Government had preferred acquittal appeal being Criminal Appeal No. 256 of 1985, in which the accused was convicted on 23.7.1998 and when the accused was to be heard on the question of sentence, the police had wrongly produced the petitioner before the High Court on 31.7.1998, though he was not the real culprit. He has stated in the petition that this Court had asked him as to whether he had put his signature on the notice of acquittal appeal and warrant, which were issued by this Court. He has stated that as he was shocked on being arrested and produced before the Court on 31.7.1998, he was not in a proper state of mind. It is stated that the petitioner was not, at that time, in a position to understand the gravity of the situation and he was not in a position to say that he was not the real culprit. It is stated that after he was sent to jail, his brother Narsi had made representations to the jail authority that the petitioner was not the real culprit, and that his brother Ratilal the respondent No.5 was the real culprit, against whom the offence was registered and who was tried by the Sessions Court. It is alleged that the petitioner is totally innocent and he has been languishing in jail in violation of his fundamental rights guaranteed by Articles 19 and 21 of the Constitution. It is contended that if the evidence of identification marks and finger prints of Ratilal taken during the investigation and trial were compared, then it would be clear that the respondent Ratilal alias Mahendra alias Narendra was kept in jail custody during the trial and he was the person who had worked at Dhangadhra as a labourer in Raval Industries from 12.4.1984 to 14.11.1984. It is submitted that the fact that his younger brother Ratilal (respondent No.5) was the accused who was behind the bars during the trial can be ascertained from the record of Rajkot jail. It is stated that the jail authorities had produced Ratilal during the trial on various dates, which can also be ascertained. The petitioner has, on these facts, sought his immediate release invoking the jurisdiction of this Court under Article 226 of the Constitution, seeking a direction to take his brother Ratilal - the respondent No.5 who was said to be ready and willing to go behind the bars in custody. Though a compensation of Rs. 1 lac was claimed in the petition, at the hearing that claim was given up and the prayer contained in prayer clause 11(D) was deleted on 22.1.1999 and an additional prayer was made to recall the judgement and order made by this Court in Criminal Appeal No. 256 of 1985. 2. This petition was initially placed before the learned Single Judge on 4.9.1998 and at the request of the petitioner's Counsel, the same was adjourned to 23rd Sept. 1998. Thereafter, it appears from the record that the learned Single Judge made an order on 23.9.1998, directing the respondent No.3 to look in to the matter and to file necessary report on the returnable date i.e. 13.10.1998. Thereafter, the learned Single Judge made an order on 18.11.1998 recording that in the midst of the arguments, the learned Advocate for the petitioner had requested for an adjournment. It appears that thereafter the matter was placed before the Division Bench and the First Court comprising Hon'ble the Chief Justice and Justice M.S.Shah made an order on 9.12.1998 for placing this petition before this Bench. Accordingly this Bench was specially constituted and on 22.1.1999 the parties appeared and the learned Counsel for the petitioner made necessary amendments in the appeal memo. 3. We had, having regard to the gravity of the matter, requested the learned Additional Advocate General to appear in the matter on 19.12.1998 when the matter was first listed before us, and requested him to instruct the Department to find out the true facts as to whether the petitioner was not the accused who was tried in the Sessions case and acquitted and against whom the purported order in the acquittal appeal was made by this Court. On 22.1.1999, Ratilal the respondent No.5 had also remained present in the Court and had engaged his Advocate Mr. Sudanshu S. Patel. An affidavit, a copy of which was placed on record which is said to have been made by Ratilal was relied upon by the petitioner to show that Ratilal was the real culprit, and the original affidavit which was placed on record was admitted before us by Ratilal - respondent No.5 as having been sworn by him. Ratilal the respondent No.5 has therein stated that he was the person who was in fact tried. The learned Additional Advocate General stated that a report would be placed on record on the question as to whether the respondent No.5 - Ratilal who was also present in Court was the real person against whom the trial was held and whether the petitioner who was produced at the time of hearing on the question of sentence was his elder brother. We directed the matter to be posted for hearing today and had ordered the jail authorities to produce the petitioner before us. The petitioner is present and is represented through his learned Counsel, and the respondent No.5 is also present and represented through his learned Counsel. The original record of Criminal Appeal No. 256 of 1985 has also been placed alongwith the main petition as per our directions contained in the order dated 22.1.1999. 4. It will be noticed from our order dated 31.7.1998 that when the petitioner Mahendra Harjivan Luhar was produced before this Court by the police pursuant to the non-bailable warrant issued by us on 23.7.1998 while allowing the acquittal appeal and convicting the respondent accused for the offences under Sections 302, 459 and 397 of the Indian Penal Code, we had heard the learned Counsel appearing for the accused - respondent, the Additional Public Prosecutor, and also the person who was produced by the Police before us as the respondent accused i.e. the present petitioner. The petitioner Mahendra Harjivan Luhar had, on that day, initially tried to urge that he was not the real culprit but when he was shown from the record the notices of the acquittal appeal which were served on him and were in his name and the execution of the bailable warrant, as also his statement dated 15.11.1985 that he should be given an Advocate at Government cost to defend him, the present petitioner who was produced before us stated at that time that he was served with the notices and the statement bears his signature. He then admitted that he was the person who was tried. We reproduce the relevant paragraph having bearing on this aspect from our order passed in the acquittal appeal on 31.7.1998. "The accused, initially, tried to urge that he is not the real culprit. He first stated that it was his brother Ratilal who had committed the offence and had falsely given his (respondent's) name. To ascertain the correctness of this submission, we perused the record and the notices of the acquittal appeal which were sent in the respondent's name and upon perusal of the record of this High Court, it transpires that, while the acquittal appeal was admitted, bailable warrant in the sum of Rs. 2,000/- was issued against him. We therefore, confronted him with the record showing the notices of the acquittal appeal were served on him and the warrant executed and his statement seeking that he should be given "appointed" advocate to defend him, which bear his signatures and which were forwarded to the High Court by the Sessions Court. He, on being confronted with this record, admitted that he was served with the notice and the statement was given by him and that they bear his signatures. He now admits that he is the person who was tried. We therefore, find no substance in his initial false suggestion that he is not the real culprit." 5. We were somewhat intrigued while hearing this petition to note that the petitioner who has come with a case that he was not the real culprit, had on 31.7.1998 when confronted with the service of notice of acquittal appeal on him and his statement which were admittedly bearing his signature, should have at that time on noticing the record admitted that he was the person who was tried before the Court, which fact we had recorded in our order dictated in open Court. We therefore, asked the learned Counsel for the petitioner to explain this sort of conduct and thereupon the petitioner who was again shown from the original record of this appeal the notice of acquittal appeal served on him and his statement asking for appointment of an Advocate to defend him in the acquittal appeal on the ground that he had no means and also forwarding a certificate of the Sarpanch, which he had obtained for the purpose, has while again admitting that they bear his signature stated before us in this Court that at that time (i.e. on 31.7.1998) on seeing his signatures in the notices of acquittal appeal and his statement, he had become nervous and that is why he had stated before us that he was the person who was tried. 6. The respondent No.5 who is represented through his learned Counsel stated before the Court that he was the person who was tried in the name of Mahendra Harjivan Luhar i.e. in the petitioner's name. He has stated before us that his real name is Ratilal and that he is younger brother of the petitioner. In his affidavit which is on record and which was sworn on 2.9.1998, it is stated that during the Sessions trial he was taken in custody and had remained in the jail. He has stated that he was arrested on 12.6.1984 and was tried in Sessions Case No. 34 of 1984, in which he was acquitted on 14.11.1984. It is also stated that Criminal Appeal No. 256 of 1985, which was filed against that decision was admitted by the High Court. He has then stated that when the convict was ordered to be produced before the High Court on 31.7.1998, though he was the real culprit as per the offence registered, his elder brother whose name is Mahendra Harjivan Luhar was taken in to custody, as in the FIR as well as in the Sessions Court, he had wrongly stated his name as Mahendra. It is stated that his name is Ratilal, but at the initial stage as well as on being asked by the lower Court about his name, he had stated that his name was Mahendra, instead of Ratilal and therefore the matter had proceeded on that basis and the police had arrested his elder brother Mahendra instead of arresting him for producing the accused in this Court. After giving details as to how he was in custody during the trial, he has stated as under:- "Therefore, admittedly I am the real culprit against whom the offence has been lodged and the sessions court has acquitted me while this Hon'ble Court has convicted me. Therefore, I should be put behind the bars as per the order of this Hon'ble Court and not my elder brother Mahendrabhai who is not at all concerned as against him no complaint has been filed and no trial is also conducted against him. Therefore, he has been wrongly sent behind the bars by the jail authorities though it was pointed out by Mahendrabhai as well as by me. I say and submit that today I am ready and willing to go behind the bars as per the order of the Hon'ble Court in Criminal Appeal No. 256 of 1985 passed by this Hon'ble Court on 31.7.1998." 7. The acquittal appeal was admitted on 13.9.1985 by a Division Bench consisting of D.C.Gheewala and J.P.Desai,JJ. and the following order was made at that time:- "Leave granted. Appeal admitted. Bailable warrant for Rs. 2000/- to issue." Since the bailable warrant was returned unexecuted, a Division Bench consisting of J.P.Desai and B.S. Kapadia, JJ. made on 13.3.1986, the following order:- "Bailable warrant to be executed." The record of the appeal shows that the notice which was issued on the respondent accused was returned duly served and he intended to engage an Advocate at Government cost, being poor. He was therefore provided an Advocate. The letter dated 20.11.1985 of the learned District Judge, Rajkot, forwarded to the High Court reads `notice duly served on the respondent' also stating that respondent had stated that he would require an Advocate at the cost of the Government. The notice which was sent to the High Court after service on the respondent, which is on record, was a notice issued for informing the accused about the orders made while admitting the acquittal appeal, requiring him to appear in the appeal and intimating that the acquittal appeal was admitted and that it was prayed therein to set aside the acquittal and hold the accused - respondent to be guilty of the said offences. At the end of that notice which was returned after service, there is signature of the present petitioner reading as `Panchal Mahendrakumar Harjivan', which is shown to him and he admitted that it was his signature. Then there is a statement dated 15.11.1985, which was also shown to the present petitioner when he was produced as an accused on 31.7.1998 and in that statement also he had admitted his signature and even today, he admits his signature on these documents before us. In the statement dated 15.11.1985 he had stated that his financial position was very weak and that he did not have any property and he was therefore not in a position to incur any expenses. It is mentioned that he was served with a notice from the High Court and that he wanted an Advocate to be engaged at the Government expenses in the matter. It was also stated that he was producing a certificate of the Sarpanch of the Gram Panchayat to show that he did not have any property. That certificate dated 15.11.1985 which was forwarded alongwith the statement is also on the record of the appeal and Sarpanch had stated therein that the petitioner Mahendra Harjivan was not having any land in the village. The fact that the petitioner had obtained the certificate of the Sarpanch and forwarded it with his statement dated 15.11.1985 seeking appointment of an Advocate at Government expenses for defending him in the acquittal appeal shows that he had sufficient time to react and that the act was deliberate. There is also in the record of appeal, communication dated 19.1.1988 from the Additional Sessions Court, Rajkot, in response to the bailable warrant which was issued while admitting the acquittal appeal, which reads as under:- "Returned with compliments to the Registrar, High Court of Gujarat at Ahmedabad, through the Sessions Judge, Rajkot District, Rajkot. Bailable warrant is duly executed on accused Luhar Mahendra Harjibhai, he is present before this Court and furnished his surety of Rs. 2,000/- original bailbonds are kept with this Court. Hence this writ is duly certified. - Sd/- (M.A. Memon) Addl. Sessions Judge, Rajkot." 8. It thus, transpires that the notices of the acquittal appeal were served on the present petitioner Mahendra Harjibhai Luhar and in response to the notice, the present petitioner had requested the High Court to appoint an Advocate for him to defend him in the appeal and had also forwarded with his statement a certificate obtained from the Sarpanch to the effect that he was not having any property. It was not at all stated either in the notice which was returned after obtaining his signature or in the statement dated 15.11.1985 that the petitioner was not the person who was tried as an accused in the said Sessions case from which the acquittal appeal had arisen. 9. Pursuant to our oral request to the learned Additional Advocate General to assist the Court for the State, he had given suitable instructions to the Department and has placed before us the report as to who was the real person who was tried. A copy of that report has been given to the petitioner's Advocate as well as the Advocate of the respondent No.5 and both of them have stated before the Court that the report is acceptable to their clients. In that report the detailed enquiry which was made by the police officer "B" Division Police Station, Rajkot City is narrated and it has been forwarded to the learned Additional Advocate General, through the Commissioner of Police. It is stated that Ratilal Harjivandas Luhar (the present respondent No.5) was arrested by Kadi Police Station for an offence under Section 381 of the I.P.C on 22.10.1983 and at that time his photographs and finger prints were taken, which were noted in the Crime Record Card that was opened in respect of that person. This is with a view to show that the Police was already having in their files the photographs and finger prints of Ratilal the respondent No.5, which were taken in connection with a different offence on 22.10.1983. These photographs were shown to the witnesses (who had deposed at the trial) who stated that this was the person against whom the trial had taken place in respect of the offences which are the subject matter of the acquittal appeal. The finger prints of the present petitioner Mahendra Harjivan and also of the respondent No.5 Ratilal which were taken again were all forwarded to the finger prints expert, who has opined that the finger prints of the petitioner were not the finger prints of the person who was arrested in respect of the offences which were the subject matter of C.R No. 179/84 of Rajkot City "B" Division Police Station and the same person who was also arrested on 22.10.1983 by Kadi Police in connection with C.R No. I-51/79 for the offence under Section 381 of the I.P.C. In other words, the report that is placed on record clearly shows that the petitioner Mahendra Harjivan is not the person who was tried as an accused in the name of Mahendra Harjivan in the Sessions Case No. 34 of 1984 and acquitted on 14.11.1984 and that the respondent No.5 Ratilal was the person so tried in the name of Mahendra Harjivan and acquitted, against which acquittal, the Criminal Appeal No. 256 of 1985 was filed. 10. The question that arises before us is whether this Court can recall the order allowing the acquittal appeal which was made and which has resulted in the confinement of the petitioner who was produced by the Police as the convicted accused before us as a result of his brother having used his name at the trial and as a result of the petitioner not having disclosed at the earlier stage when the acquittal appeal notice was served on him that he was not the accused who was tried or that his brother Ratilal had falsely given his name on being arrested for the offences in question. The procedure for hearing appeals which are not summarily dismissed is laid down in Section 385 of the Code of Criminal Procedure, 1973. Accordingly, a notice of time and place at which the appeal will be heard is required to be given to the accused, if the appeal is under Section 377 or 378 of the Code, and, the accused is to be furnished with the grounds of appeal. In the present case, it was an appeal in case of acquittal under Section 378. Section 386 of the Cr. P.C interalia provides that after perusing the record and hearing in case of an appeal under Section 378, the accused if he appears, the appellate Court may in an appeal from an order of acquittal, reverse such order and find the accused guilty and pass sentence on him according to law. It is therefore, clear that the procedure for hearing of acquittal appeals requires the notice of hearing to be given to the accused and to hear the accused if he appears. Therefore, when the appeal was listed for final hearing, the accused who was tried and acquitted was required to be heard. The petitioner who was served with the notice of time and place at which the appeal would be heard, was not the accused who was tried and acquitted and the service on him could not bind the real accused. The petitioner's request that he may be given an Advocate to defend him in the acquittal appeal not being the request from the accused who was actually tried, could not bind the accused notwithstanding that he was tried in the name of the petitioner Mahendra Harjivan which he had falsely given as admitted by him in his affidavit filed in this petition and also before us in Court. Therefore, since no hearing was granted to the accused - respondent in the acquittal appeal because he was not served at all, no opportunity of hearing was given to the accused. The accused had a right to engage a lawyer to defend himself in the acquittal appeal and since he was not served with the notice of the appeal and did not appear when the acquittal appeal was heard, nor did he himself engage any lawyer to defend, there was no hearing given to him as contemplated by law. The accused in such a case cannot be said to have been heard at all