IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 546 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus PATEL TEJABHAI JETHABHAI -------------------------------------------------------------- Appearance: 1. Criminal Revision Application No. 546 of 1997 MR ND GOHIL, APP for Petitioner - State MR YOGESH S LAKHANI for Opponent Nos. 1, 2, 4-7 MR KS JHAVERI for Opponent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 15/01/2003 C.A.V. JUDGEMENT 1. The State of Gujarat has, by filing this Criminal Revision Application under Section 397, read with Section 401 of the Criminal Procedure Code, 1973 [for short "Cr.P.C."] challenged the correctness, legality, propriety and regularity of the order dated 07.08.1997 passed below Ex.126 dated 27.06.1997 presented by seven accused in Special Case No.1 of 1986, by the learned Additional Sessions Judge and Special Judge, Banaskantha District, Palanpur [who will be referred to hereinafter as the "learned Judge of the Special Court]. 2. The facts leading to this present Criminal Revision Application in a nutshell, are as follows :- 2.1 On 01.01.1986, Shri Chandrakant Chandulal Vora, Chief Supply Inspector, Banaskantha District, Palanpur lodged his private complaint against the seven accused, who are revision opponent Nos.1 to 7 before this Court, in the Special Court constituted under Section 12(A) of the Essential Commodities Act, 1955 (Act No.10 of 1955) [for short "the Act"]. That private complaint came to be registered as Special Case No.1 of 1986. The learned Judge of the Special Court passed the following order :- "Examined and ordered to be registered. Summons to be issued against the accused." Pursuant to that order, the summons were issued against the seven accused and that seven accused appeared through their advocates before the learned Judge of the Special Court. During the period of pendency of the said Special Case No.1 of 1986, all the accused submitted the application Ex.126 dated 27.06.1997 stating interalia that the alleged incident of offence had taken place in the year 1982 and the said Special Case No.1 of 1986 could not be proceeded further during the period from 1982 to 1997 i.e. during a long period of 15 years and that accused have been terribly harassed economically, mentally and physically. During this long span of 15 years, they are under constant mental tension because of a hanging sword of the said Special Case No.1 of 1986. The accused have also stated in their application Ex.126 that the said Special Case No.1 of 1986 ought to have been disposed of, at the earliest, by giving effect of speedy trial to the said case. It is also stated by the accused that the said case has not yet reached to the stage of recording evidence of the prosecution witnesses and it is also not certain as to when it will reach to the stage of recording evidence of the prosecution witnesses and under these circumstances, the accused are under constant mental tension. They have also stated that they are indirectly punished during a long span of 15 years. By stating the aforesaid facts and circumstances, the accused requested the Special Court to discharge them from the case. The learned Judge of the Special Court passed the following order below said application Ex.126, on 30.06.1997. "To be kept for hearing. Question raised whether accused is entitled to be discharged on the ground that there is delay in trial. Matter being of public importance notice be placed in the Bar Association room inviting Advocates to address the Court on this point, if they so desire." 2.3 From the order Ex.126, it appears that the learned advocate, who appeared for the accused and the learned APP, who appeared before the Special Court were heard on the said application Ex.126. Pursuant to that order dated 30.06.1997 passed below application Ex.126, one advocate Mr.M. U. Somani, who appeared before the Special Court. Pursuant to general notice of the Court inviting advocates to address the Court on an importance question raised in application Ex.126, was also heard at length by the learned Judge of the Special Court. It appears from the order Ex.126 that the learned Judge of the Special Court examined the record thoroughly and after hearing the learned advocates for both the parties as well as Mr.M. U. Somani, who appeared for and on behalf of the Bar Association of Banaskantha District at Palanpur, came to a conclusion that there was an unexplained, inordinate gross delay of 15 years, in holding the trial against the accused and by placing reliance on different decisions of the Hon'ble Supreme Court on the point of fundamental right to a speedy public trial, passed the following order in application Ex.126 on 07.08.1997. "The application Ex.126 is allowed. Proceedings of Special Case No.1/86 against the accused persons for offences under the Essential Commodities Act are dropped. All the accused persons shall stand discharged. Their bail bonds shall stand cancelled." 3. Being aggrieved against and dissatisfied with the aforesaid order dated 07.08.1997 passed below application Ex.126 in Special Case No.1 of 1986 by the learned Judge of the Special Court, the State of Gujarat has preferred this present Criminal Revision Application. 4. It would be desirable to know the facts of the case of Special Case No.1 of 1986; [i] On or about 08.12.1985, the accused Nos.1, 2, 5 and 6 were running a Fair Price Shop recognized by the Government, for which a license under the Gujarat Essential Commodities [License Control and Stock Declaration] Order, 1981 was issued. They were supposed to run their Fair Price Shop in accordance with the provisions of the aforesaid Order of 1981, and license issued their under. [ii] On or about 08.12.1982, a permit for 40 bags of wheat was issued by the Office of Mamlatdar of Vav and pursuant to that permit, the accused No.1 had to take delivery of 40 bags of wheat from the godown of Civil Supplies Corporation, Tharad and, thereafter, to distribute that wheat to ration card holders, whose names were registered in the Fair Price Shop of village Bharadva. Likewise, on that day i.e. on 08.12.1982, the accused No.2 was issued a permit to take delivery of 50 bags of wheat from the godown of Civil Supplies Corporation at Tharad. It is the case of the prosecution that thus, accused Nos.1 and 2, had instead of taking 90 bags of wheat to the Fair Price Shop of village Bharadva, taken that quantity of wheat to sell in open market. The accused Nos.1 and 2 by taking that quantity of wheat for transporting it from Tharad to Radhanpur, loaded that 90 bags of wheat in the Motor Truck No.5202 of the ownership of the accused No.3. That quantity of wheat was unauthorizedly sold to the accused No.4. It is the case of the prosecution that to hide that illegal transaction of disposal of 90 bags of wheat, the accused Nos.1 to 4 hatched a conspiracy with the accused Nos.5 and 6 and prime accused obtained a quantity of wheat from the Fair Price Shop of the accused Nos.5 and 6, situated at Bhabhar and they transported that quantity of wheat by a Truck No.GRO - 4061. The Police Sub-Inspector of village Sui came to know about bringing of that stock of wheat at village Bharadva. That Police Sub-Inspector of Sui Police Station came to the village Bharadva and seized 90 bags of wheat, together with truck. The quantity of wheat was confiscated to the State and the truck was returned to its owner. [iii] It is also the case of the prosecution that the accused No.1 made an entry by his own underwriting in the authority letter of his shop, though, in fact, 40 bags of wheat were not brought from the godown of Tharad to the Fair Price Shop of village Bharadva. By transporting it in Truck No.GRO - 4061, said entry was made with a view to save his skin and the accused No.1 sold 40 bags of wheat in black market, by selling in open market. Likewise, the accused No.1 made a false entry in the zone book of the accuse No.2. [iv] On or about 16.12.1982, the shop of accused No.2 at village Bharadva was inspected and checked in presence of panch witnesses and on making search of the shop of the accused No.2, about 12 ration cards were recovered. This ration cards were unauthorizedly kept in the shop with a view to sell the quantity of wheat in open black market. As stated in the complaint, the accused Nos.5 to 7 aided and abetted the prime accused in committing offence punishable under the Act. In short, it is the case of the prosecution that the accused have committed a breach of the provisions of the authority letter/license issued under the Gujarat Commodities [License Control and Declaration of Stock) Order, 1981 and said contravention is nothing but a contravention of different provisions of Section 3 of the Act. This contravention of different provisions of Section 3, are punishable under Sections 7, 8 and 9 of the Act. 5. Mr.N.D. Gohil, learned APP for the revision petitioner i.e. State of Gujarat has taken me through a copy of complaint and the impugned order challenged in this Criminal Revision Application. I have heard Mr.N.D.Gohil, learned APP for the revision petitioner, Mr.Y.S. Lakhani, learned advocate for criminal revision opponent Nos.1, 2, 4 to 7 and Mr.K.S.Javeri, learned advocate for the criminal revision opponent No.3 in detail at length. 6. During the course of arguments, Mr.N.D. Gohil, learned APP for the State has argued that looking to serious nature of offences, if this Court feels necessary, one more and last chance be given to the prosecution allowing it to lead evidence before the Special Court and for giving such chance, impugned order is required to be set aside and the Special Case No.1 of 1986 is required to be remanded to the Special Court with suitable directions to the prosecution as well as the learned Judge of the Special Court. Mr.N.D.Gohil, by making a statement at Bar undertook before this Court that efforts will be made by the prosecution to lead evidence in the case and the prosecution will take effective steps for completing trial of the case, within six months from the date of the receipt of the order of this Court by the Special Court. During the course of arguments, Mr.N.D.Gohil has argued that there is no express provision in the Cr.P.C. to drop the proceeding initiated against the accused. He has further argued that once the charge is framed against the accused, the accused cannot be discharged at any time, after framing of a charge against them. He has further argued that there is a provision of Section 258 in Cr.P.C. which speaks for stoppage to the proceeding, but that provision will not be applicable to the present case because the case on hand was a warrant triable case, as the charge was framed against the accused. He has further argued that looking to the serious nature of offence, the order challenged in this Criminal Revision Application, deserves to be set aside and Special Case No.1 of 1986 deserves to be remanded to the learned Judge of the Special Court. In support of his arguments, Mr.N.D.Gohil, learned APP for the revision petitioner i.e. State of Gujarat has placed reliance on the case of U.P. Pollution Control Board v/s. M/s. Mohan Meakins Ltd. and Others reported in J.T. 2000 (3) S.C. 466. 7. Mr.Y.S.Lakhani, learned advocate for the criminal revision opponent Nos.1, 2, 4 to 7 has vehemently argued that the learned Judge of the Special Court has, by placing reliance on different decisions of the Hon'ble Supreme Court on the point of fundamental right of speedy public trial, rightly dropped the proceedings against the accused and consequently, he has rightly discharged the accused from the case. He has further argued that the learned Judge of the Special Court has discussed the facts in detail showing what opportunity had been given to the prosecution to lead the evidence of the prosecution witnesses, within 15 years. He has argued that though sufficient and ample opportunity was given to the prosecution within 15 years, not a single witness could be examined by the prosecution and, therefore, considering the available facts on record, the learned Judge of the Special Court has rightly discharged the accused, by dropping the proceeding. He has argued that merely because, the impugned order does not suit the prosecution, it cannot be said that it is an incorrect and illegal order. He has further argued that looking to the different stages, full opportunity was given to the prosecution. He has further argued that the learned Judge of the Special Court has placed reliance on the correct facts, so as to arrive at a just and proper decision and, therefore, the impugned order cannot be said to be a perverse order. In view of these submissions, Mr.Y.S.Lakhani has argued that this Criminal Revision Application is devoid of merits and it requires to be dismissed. Mr.Y.S.Lakhani has placed reliance on the following two authorities. [1] Abdul Rehman Antulay and others v/s. R.S. Nayak and another, reported (1992) 1 Supreme Court Cases 225. [2] A decision of the constitution bench comprising seven Hon'ble Judges of the Supreme Court rendered in the case of P. Ramachandra Rao v/s. State of Karnataka, reported in (2002) 4 Supreme Court Cases 578. 8. From the record, the following facts are emerged for which, there is no dispute from either side. [1] The alleged offences, as per the complaint, were committed by the accused in the year 1982. That offences are for contravention of the provision of the Gujarat Essential Commodities [License Control and Stock Declaration] Order, 1981 and also the provision of Section 3, which are punishable under Section 7 of the Act. [2] It is alleged by the prosecution that some of the accused have committed the alleged offences of attempt and abetment which are punishable under Section 8 of the Act and some of the accused have committed an offence of making a false statement which is punishable under Section 9 of the Act. [3] Though the alleged offences were committed by the accused in the year 1982, the complainant lodged his complaint against the accused in the Special Court, on 01.01.1986. [4] The accused Nos.1, 2 and 5 appeared before the Special Court on 06.02.1986. [5] As stated by the learned Judge of the Special Court, in his order, and in view of Rojkam dated 31.07.1986, the charge at Ex.8 appears to have been framed and pleas of the accused were recorded at Exhs.9 to 15. He has further stated, in his order, that the charge Ex.8 is not traceable in the record. [6] On bare perusal of the order, it is crystal clear that on the following dates, the learned Public Prosecutor, who was in-charge of the case before the Special Court had asked for adjournments and at his requests, adjournments were granted in favour of the prosecution. Thereafter, the case was adjourned from time to time for one reason or another till 31.03.1987. On 31.03.1987, a note had been made in the Rojkam of the case that "this matter to be fixed as per the convenience of the Court". Immediately, thereafter, the next entry in the Rojkam is of 11.05.1990. [7] When case was taken up on 11.05.1990, it was adjourned to 05.06.1990 "for evidence". [8] On 05.06.1990, the case was adjourned to 18.07.1990 with the order "witness summons be issued". [9] On 18.07.1990, the learned Public Prosecutor had remained absent and, therefore, the case was adjourned to 16.08.1990. [10] On 16.08.1990, Advocates for some of the accused had prayed for time and the matter was adjourned to 04.09.1990. [11] On 04.09.1990, witnesses were not present before the Court and, therefore, the case was adjourned from time to time to 01.10.1990, 28.11.1990, 24.12.1990 and 24.01.1991. The Rojkam indicates that the order was passed on the aforesaid four dates, to issue summons to the complainant. [12] From the Rojkam, it appears that on 07.03.1991, the witness summons of the complainant, was not issued and hence, it was directed that it be issued. [13] As per the Rojkam, the witness summons were not served and, therefore, the case was adjourned from time to time to 08.05.1991, 29.05.1991, 07.06.1991, 05.07.1991, 31.07.1991 and 08.08.1991. [14] On 11.09.1991, the witnesses were not present and as per the Rojkam, the next date i.e. 16.11.1991 was fixed with a direction to issue witness summons against the complainant. [15] As per Rojkam, on 20.12.1991, the Court noted that "the complainant died". [16] On 07.02.1992, 16.03.1992 and 23.04.1992, the learned Public Prosecutor was directed by the Court to keep the prosecution witnesses present on respective next dates. [17] On 15.06.1992, some of the accused were not present. [18] On 17.07.1992, the learned Public Prosecutor was again directed by the Court to keep the witnesses present. [19] It appears that on 18.09.1992, 06.11.1992 and 17.12.1992, the witnesses were not kept present and on that dates exemption from personal appearance was sought for, on behalf of some of the accused and case was, ultimately, adjourned to 11.02.1993. [20] On 11.02.1993, the Public Prosecutor was directed to keep witness - complainant present and, thereafter, the case was adjourned from time to time to 16.03.1993, 03.08.1993 and 02.09.1993. [21] On 02.09.1993, as per the Rojkam, the Court ordered to issue witness summons, as per Ex.1 and finally it was adjourned to 01.11.1993. [22] On 01.11.1993, a note was made in the Rojkam to the effect that the evidence of these witnesses would be taken, thereafter, at the convenience of the Court, when the learned Public Prosecutor would file documents. [23] From the record, it appears that no progress appears to have taken place in the proceeding of the case, during the period between 01.11.1993 and 05.09.1995 and, thereafter, the case was adjourned from time to time and ultimately, it was adjourned to 20.01.1996. [24] On 20.01.1996, the learned Public Prosecutor asked for time for obtaining case record. Thus, the case was adjourned to 18.03.1996, at the request of learned Public Prosecutor. [25] On 18.03.1996, the Public Prosecutor had remained absent. [26] On 23.04.1996, the learned Public Prosecutor submitted an application Ex.91 asking for time on the ground that the original record of the case was with the Anti Corruption Bureau and the same was to be collected, before summons could be issued. Similar request was made on 18.05.1996 vide Ex.95, on 01.07.1996 vide Ex.96 and on 19.07.1996 vide Ex.100. [27] On 22.10.1996, the learned Public Prosecutor submitted an application Ex.104 for issuance of witness summons to someone in Anti Corruption Bureau to attend the Court with the record of the case. [28] On 09.01.1997, a report Ex.109 was submitted through the learned Public Prosecutor stating interalia that the record was rather old and it would take time to locate the same from Anti Corruption Bureau. Thereafter, the case was adjourned from time to time, till 27.06.1997. [29] On 27.06.1997, the accused submitted an application Ex.126 on which the impugned order was passed by the learned Judge of the Special court and by that order, the proceeding of the case was ordered to be dropped discharging the accused from the case. 9. The learned Judge of the Special Court has observed in his order below application Ex.126 that there was delay of three years in filing the complaint and, thereafter, the case was adjourned from time to time largely because the prosecution witnesses did not remain present before the Court, despite the directions were given by the Court. The learned Judge of the Special Court has also observed that case remained practically on dormant file for a total period of five years. The learned Judge of the Special Court has also observed that on several occasions the matter was adjourned as the learned Public Prosecutor had to collect original record. It is further observed by the learned Judge of the Special Court that the record of the case was not with the learned Public Prosecutor till 09.01.1997, the date on which the application Ex.109 was submitted through the learned Public Prosecutor stating interalia that the record was rather old one and it would take time to locate the same from the Anti Corruption Bureau. The learned Judge of the Special Court has also observed that the scenario indicates that the accused persons are not in any way responsible for the delay since their appearance before the Court. He has further observed that absence of accused for some time, would have made no difference as witnesses for prosecution did not attend the Court during the entire period of almost 15 years except on one occasion i.e. on 20.01.1996. It is interesting to note that the witnesses were present on 20.01.996 but the prosecution did not examine them as the original record was not available with him and thus, the learned Judge of the Special Court has specifically observed that it cannot be said that the accused were responsible for the delay. Thus, the learned Judge of the Special Court has stated in detail in paras 3 and 4 of his order about the progress of the case, which could be achieved during 15 years. It is not the say of Mr.N.D. Gohil, learned APP that whatever facts are stated in para 3 & 4 of the order, are against the record or that facts are incorrectly stated. It is not his say that whatever facts are stated by the learned Judge of the Special Court are not carrying the truth and thus, it is not the case of the revision petitioner that the order is perverse meaning thereby the order is passed on "no material". Mr.N.D.Gohil has not challenged any of the averments made by the learned Judge of the Special Court in his order, and hence, the order cannot be said to be incorrect order. When the order is passed on factual aspects, it cannot be said to be an illegal order. Now only question remains to be decided as to whether the impugned order can be said to be an illegal order. The legality of the order can be examined on the point as to whether the learned Judge of the Special Court had jurisdiction to pass such order of dropping the proceeding of the case and discharging the accused from the case. If, the learned Judge of the Special Court has no jurisdiction to pass such order, then certainty, it can be said that the order is passed without jurisdiction and in that case, the order can be said to be an illegal order. But on the basis of decisions rendered by the Hon'ble Supreme Court, if the legal position is settled that the learned Judge of the Special Court had jurisdiction to pass such order then the order is to be examined as to whether the learned Judge of the Special Court has exceeded his jurisdiction and if it appears that he has exceeded his jurisdiction, then also, order can be said to be an illegal order and in that circumstances, this Criminal Revision Application can be allowed. 10. Admittedly, there is no provision in Cr.P.C. to drop the proceeding when a charge was framed. No doubt, the learned Judge of the Special Court has observed that the charge of the accused is not traceable and only pleas Exhs.9 to 15 are on record, then it can well be