R/CR.A/2340/2022 ORDER DATED: 14/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2340 of 2022
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GAMBHIRSINH ASHABHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR RAJESH R DEWAL(1024) for the Appellant(s) No. 1
MR HK PATEL, APP for the Opponent(s)/Respondent(s) No. 1 AND 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 14/02/2023
ORAL ORDER
1. By way of present appeal filed under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 read with Section 482 of the Code of Criminal procedure Code against the order of framing charge in Special Atrocity Case No. 67 of 2018 below Ex. 11 dated 21.08.2021 during the operation of interim relief granted by this court on 24.10.2018 in Special Criminal Application No. 9244 of 2018.
2. Heard learned advocate for the appellant and learned APP for the respondent no.1 and 2.
3. It was submitted by learned advocate for the appellant that framing of charge itself is bad in the eyes of law as the Page 1 of 6 Downloaded on : Tue Feb 14 20:57:26 IST 2023 R/CR.A/2340/2022 ORDER DATED: 14/02/2023 same is in violation of the order passed by this Hon'ble Court on 24.10.2018. That the learned trial court as well as prosecution have not bothered to take into consideration the order of this court which is purely in protective nature and proceeded to frame charge against the present appellant which is nothing but deliberate violation on the part of the prosecution. That, in spite of protective order in favour of the appellant, the respondent no.2 chosen to file charge sheet against the present appellant in gross violation of the order dated 24.10.2018. That the respondent no.2 was aware that the appellant was protected by this court however he preferred to ignore the order of this Hon'ble Court which is nothing but willful and deliberate act on his part to laid charge sheet against the present appellant. That, from the bear reading of charge sheet papers, now a whisper about single piece of evidence available in the entire charge sheet papers. On the contrary, the appellant was shown as witness while drawing panchnama of recovery of vehicle as the said vehicle was in the name of present appellant. Except this, there is nothing in entire charge sheet papers which prima facie suggest to frame charge against the present appellant. That prosecution has failed to bring any evidence which in any manner, connect the present appellant with the commission of the crime and Page 2 of 6 Downloaded on : Tue Feb 14 20:57:26 IST 2023 R/CR.A/2340/2022 ORDER DATED: 14/02/2023 learned trial court has not even taken a pain to look into the records as to whether there is any oral/documentary evidence which in any manner connect the appellant with the alleged incident of crime and proceeded to accept the request of prosecution and framed the charge which is ex-facie illegal and against the settled legal proposition of law. Thus, it was submitted by learned advocate for the appellant to allow present appeal.
4. On the other side, learned APP for the respondent Nos. 1 and 2 have strongly objected the submissions made by learned advocate for the appellant and submitted that the learned trial court has rightly framed the charge against the present appellant. There is no bar to frame the charge by the learned trial court as per the order passed by coordinate bench of this court. That, there is no order of restraining to file charge sheet against the present appellant and therefore, the framing of charge sheet by the Investigating Officer is as per the law as well as framing of charge by the learned Sessions Court against the respondent is also as per the law. Thus, ultimately, it was submitted by learned APP for the respondent No.1 and 2 State to dismiss present appeal.
5. Though served, none was present for and on behalf of the respondent no.3 to assist this court in the present appeal and Page 3 of 6 Downloaded on : Tue Feb 14 20:57:26 IST 2023 R/CR.A/2340/2022 ORDER DATED: 14/02/2023 therefore, no arguments on the side of the respondent 3.
6. Having heard learned advocates for the respective parties and averments made in the present appeal, it appears that earlier the appellant had filed special Criminal Application No. 9244 of 2018 before this court and vide order dated 24.10.2018, coordinate bench of this court has passed order directing the investigating officer not to take any coercive steps against the present appellant and thereafter, after conclusion of the investigation, Investigating Officer has filed a charge sheet before the concerned trial court and accordingly, learned trial court has framed the charge against the present appellant and being aggrieved with the said order, present appellant has approached this court by way of present appeal.
7. Before concluding the present appeal, this court would like to refer some legal citations wherein this Court in the case of Chitresh Kumar Chopra v. State (Government of NCT of Delhi), reported in (2009) 16 SCC 605, observed in para 25 as under:
"25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this Page 4 of 6 Downloaded on : Tue Feb 14 20:57:26 IST 2023 R/CR.A/2340/2022 ORDER DATED: 14/02/2023 limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See: Niranjan Singh Karam Singh Punjabi & Ors. Vs. Jitendra Bhimraj Bijja & Ors5).
8. In State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, a three-Judge Bench of ths Court explained the meaning of the word "presume". Referring to the dictionary meanings of the said word, the Court observed thus:
"32. ..... if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."Page 5 of 6 Downloaded on : Tue Feb 14 20:57:26 IST 2023
R/CR.A/2340/2022 ORDER DATED: 14/02/2023
9. This court has taken a clear view in Criminal Revision Application No. 626 of 2021 vide order dated 29.08.2022 by discussing aforesaid two judgments as well as other citations on the point of framing of charge and conclusion of discharge application.
10. Thus, as discussed above, this court is not inclined to accept the prayer made by the appellant as the learned trial court has not committed any error while framing the charge against the present appellant and accordingly, present appeal stands dismissed. Notice stands discharged. Interim relief, if any, granted earlier stands vacated.
(SAMIR J. DAVE,J) FURTHER ORDER:
11. After passing aforesaid order, learned advocate for the appellant has requested to extend the interim relief granted earlier for some time. Thus, while considering the request made, interim relief granted earlier is extended for a period of four weeks from the date of passing of this order.
(SAMIR J. DAVE,J) K. S. DARJI Page 6 of 6 Downloaded on : Tue Feb 14 20:57:26 IST 2023