Babubhai Bhimabhai Bokhiria & Anr vs State Of Gujarat & Ors

Shorn of unnecessary details, facts giving rise to the present petition are that one Mulubhai Gigabhai Modhvadiya was murdered on 16th of November, 2005 and for that a case was registered at Kalambaug Police Station, Porbandar, under Section 302, 201, 34, 120B, 465, 468 and 471 of the Indian Penal Code and Section 25 of the Arms Act. Police after usual investigation submitted the charge-sheet and the case was ultimately committed for trial to the Court of Session. When the trial was so pending, the wife of the deceased filed an application for further investigation under Section 173(8) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’), alleging petitioner’s complicity in the crime, inter alia, stating that the petitioner was a business rival of the deceased whereas one of the main accused is his business partner with whom he conspired to kill the deceased. It was alleged that petitioner was a Minister earlier from the party which was in power in the State and therefore, he was let off during investigation. It was also pointed out that a letter written almost a year ago by the deceased was recovered from his purse in which it was stated that in the event of his death, the petitioner shall be held responsible as he intended to kill him. In reply to the said application, the Investigating Officer filed his affidavit stating therein that during the course of investigation, nobody supported the plea of the wife that the deceased was apprehending any threat from the petitioner or for that matter, any other person. In another affidavit filed by the Investigating Officer, a firm stand was taken that no material had surfaced to show the complicity of the petitioner in the offence. It was pointed out by the Investigating Officer that the deceased filed an application for arms licence and in that application also he did not disclose any threat or apprehension to his life from any person, including the petitioner herein. Notwithstanding the aforesaid affidavit of the Investigating Officer, the Sessions Judge directed for further investigation. In the light of the aforesaid, the investigating agency submitted further report stating therein that the call records of the period immediately preceding the death of the deceased do not show any nexus between him and the petitioner and the deceased did not have any threat from the petitioner. In this way, the police did not find the complicity of the petitioner in the crime.

Aggrieved by the aforesaid order, the petitioner preferred Special Criminal Application No. 638 of 2008 before the High Court of Gujarat. The High Court by its order dated 11th December, 2008 dismissed the said application inter alia observing as follows:

The other evidence sought to be relied for summoning the appellant is the alleged conversation between the appellant and the accused on and immediately after the day of the occurrence. But, nothing has come during the course of trial regarding the content of the conversation and from call records alone, the appellant’s complicity in the crime does not surface at all.

To put the record straight, Mr. Bobde has raised various other contentions to show that the appellant cannot be put on trial, but in view of our answer to the aforesaid contentions, we deem it inexpedient to either incorporate or answer the same.

In the result, we allow this appeal and set aside the order of the trial Court summoning the appellant to face trial and the Order of the High Court affirming the same.

………………………………………………………………J (CHANDRAMAULI KR. PRASAD) ………………………………………………………………J (PINAKI CHANDRA GHOSE) NEW DELHI, APRIL 3, 2014.