State Of Gujarat vs Rajnikant Dudhabhai Parmar

Gujarat High Court

State Of Gujarat vs Rajnikant Dudhabhai Parmar on 11 August, 2025

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

                                                                                                             NEUTRAL CITATION




                          R/CR.RA/595/1999                                   JUDGMENT DATED: 11/08/2025

                                                                                                              undefined




                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                 R/CRIMINAL REVISION APPLICATION NO. 595 of 1999


                     FOR APPROVAL AND SIGNATURE:


                     HONOURABLE MR. JUSTICE ILESH J. VORA

                     and
                     HONOURABLE MR.JUSTICE P. M. RAVAL

                     ==========================================================

                                  Approved for Reporting                    Yes           No

                     ==========================================================
                                                     STATE OF GUJARAT
                                                           Versus
                                             RAJNIKANT DUDHABHAI PARMAR & ORS.
                     ==========================================================
                     Appearance:
                     MR L B DABHI ADDITIONAL PUBLIC PROSECUTOR for the Applicant(s)
                     No. 1
                     ADVOCATE NOTICE SERVED for the Respondent(s) No. 2,3,4
                     MR BP JHALA(6076) for the Respondent(s) No. 3,4
                     MR PRAVIN GONDALIYA(1974) for the Respondent(s) No. 1
                     RULE SERVED BY DS for the Respondent(s) No. 2,3,4
                     ==========================================================

                       CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                             and
                             HONOURABLE MR.JUSTICE P. M. RAVAL

                                                        Date : 11/08/2025

                                           ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)

1. The present revision application has been preferred by the State of Gujarat under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 against order dated Page 1 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined 13.09.1999 passed below Exh. 1 in Sessions Case No. 319 of 1998, Session Case No. 352 of 1998 and Sessions Case No. 168 of 1999 discharging the accused.

2. The case of the prosecution in nutshell is that on 23.03.1998, between 7:30 AM and 8 AM, complainant Tarun Kumar Amritlal Barot, Police Inspector, Crime Branch Police Station, on receiving information, raided the premises of one Saira Banu Ishaq Ibrahim Shaikh. During the raid, there was an exchange of fire with sophisticated weapons between the raiding party and the persons occupying the said premises. In the said incidence, six persons expired, and a large quantity of RDX, grenade, rifles, cartridges, and cellular phones, along with AK 56 rifles, magazines, and live cartridges were recovered during the course of investigation. Initially, four persons were charged, and a case was registered as Sessions Case No. 319 of 1998. Further investigation led to the other accused persons being arrested at different times, and supplementary charge sheets were also filed. Cases were registered as Sessions Case No. 352 of 1998 and Sessions Case No. 168 of 1999. The offences are registered under sections 120, 122, and 307 of the IPC, as well as under

sections 25(1A) and 1B read with sections 28, 35, and 36 of the Arms Act, and sections 4, 5, and 6 of the Explosive Substance Act. While the first three sessions cases were Page 2 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined conducted before the learned sessions judge for framing of charges, one accused, namely Rajinikanth Duhai Parmar, accused No. 5, preferred an application below Exhibit 1 under the provisions of section 227 of the CRPC 1973 for discharging him. Pending hearing and final disposal of the said application, all the accused preferred an application under section 227 of the CRPC for discharging them for the offences. The learned sessions judge was pleased to discharge the present respondent -original accused, whereas the rest of the four came to be tried for the charges against them. It is against the said order of discharge that the present application is preferred by the State.

3. Learned APP Mr. L B Dabhi has mainly raised the following contentions:

(1) That the learned judge has failed to appreciate that the investigation clearly reveals that the respondent accused were involved in the offence against them;

(2) That the learned judge has failed to appreciate that if there is a case against the accused, charges ought to have been framed;

(3) That the trial court has committed a serious error, both on law and on facts, by having discharged the accused Page 3 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined despite a prima facie case; and that the learned judge has failed to appreciate that there is a chain of conspiracy, and each conspirator may not have knowledge of other parts of the conspiracy, but this itself does not absolve them from being part of the conspiracy.

(4) The learned sessions judge has failed to appreciate that the conspiracy as alleged by the prosecution in the present case is a part of different conspiracies, and each conspiracy put together makes one conspiracy; therefore, all the accused ought to have been charged by the learned sessions judge.

(5)The trial judge has failed to appreciate that each conspirator might have played a different role without the knowledge of the other conspirators, but when each of them plays their part in furtherance of the criminal conspiracy, the accused ought not to have been discharged.

4. Learned advocate Mr. Praveen Gondaliya appears for respondent No.1, and advocate Mr. BP Jhala appears for the rest of the respondents. At the relevant point of time, Mr. HN Jhala had placed on record written arguments. In the nutshell, the arguments for the original accused are to the effect that while deciding the present criminal revision application, the appellate court is only required to follow the basic principle as to whether the case involves a substantial question of law Page 4 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined which requires interference at the hands of the appellate court. That is to say, this court, unless otherwise established, may not interfere in questions of fact. The evidence appearing against each of the accused, if considered against the present respondents number 1 to 4 collectively, the charge of criminal conspiracy under section 120B is levelled against each of the accused. To prove a conspiracy, it is settled by a series of judgments that there cannot be direct evidence for the same, and for that very reason, the legislature has wisely enacted the provisions of section 10 of the Indian Evidence Act. It is not necessary that the act should have been connected with each of them. It is also not necessary that there must be a meeting of minds, but at the same time, some overt act is required to constitute the conspiracy.

5. It is the case of the prosecution that the accused No. 8, present respondent No. 4, who was in judicial custody in connection with case No. 8 of 1993, had hatched the conspiracy while in Sabarmati Jail. It is alleged that he, Javed Khan, made several telephone calls through a cellular phone within the jail premises to Pakistan, where his brother Sharif Khan is residing. However, despite a thorough search of the personal belongings of Javed Khan, no cellular phone was recovered from his possession or even from the prison, and no statement of jail authorities has been recorded by the Page 5 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined investigation officer. However, the prosecution has come out with the case that in all, 148 calls were made through one person, who was the owner of a telephone booth, by Javed Khan. It is alleged that two statements of one Mehjabeen, the owner of the telephone booth, were recorded on 27.07.1998. In the second statement recorded on the same day, it is stated that out of 152 telephone calls made between 14.07.1998 and 15.07.1998, 149 calls which she had asked to connect came from Sabarmati area. According to this statement, these calls were at the instance of Javed Khan, who had asked for a conference from Viren Sabarmati Jail and was asked for conference to phone No. 009221 belonging to Karachi, Pakistan, and telephone No. 583229. From the record of the mobile phone number. from which Javed Khan had asked for the conference, no information is forthcoming. On record absence of these numbers, it cannot be said that a particular telephone asking for conference at a particular number in Pakistan was made by Javed Khan. Even assuming that the payment was made by Nasir Khan, one of the accused from whom the mobile was recovered, still, the accused Nasir Khan was not in jail.

6. It is further contended that all persons, including the advocates, were searched for possession of any such material or instrument, and even visiting the jail could not have entered Page 6 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined the premises with a mobile phone. Therefore, it is highly improbable that any mobile phone might have been transferred by Nasir Mia to Javed Khan while visiting him in jail. It is further contended that, most importantly, the statements of jail authorities are not recorded. Therefore, in absence of any evidence to show that Nasir, accused No. 6, passed this mobile to Javed, cannot be inferred.

It is also not the case of the prosecution that Nasir Khan had visited the jail and that there is an entry in the record of the jail authority. It is for the contention there. Similarly, there is no evidence on record against accused No. 6 and No. 7, namely Nasir Miya and Ahmed Hussain. It is true that there are two statements against these accused, coupled with the fact that Nasir Miya is the real brother of accused No. 1, Saira Banu. However, it is not that he was residing in the same premises where a huge quantity of weapons were found and seized. There is no documentary evidence to show that this accused was residing in the premises from where the weapons came to be recovered. There is no electricity bill, ration card, or any document proving the said fact. The statement of an accused cannot be read as evidence nor is admissible in law, and therefore, also relying on such statements by the prosecution, it cannot be said that a prima facie case is made out against accused No. 6 and No. 7.

NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined It is further contended that merely giving money for paying bills for repairs of mobile battery,etc, cannot be said to be sufficient charges for the offence punishable under section 120B of IPC. As regards accused No. 7, Ahmed Hussain, he is a servant of Nasir Miya; on the instruction given by his master Nasir Miya, he had gone to pay the bill and therefore cannot be saddled with the liability of committing any offence.

As far as accused No. 5 is concerned, i.e., Rajinikanth Dudhhai Parmar, it is alleged that he was having links with accused No. 1 and No. 8. Though there is a statement of an independent witness alleging that he was in contact with Nasir Miya and came with a chit of Javed Khan, which was to be delivered to Saira Banu, however, this chit has never been recovered. It is the allegation of the prosecution that this accused was serving as a sipahi with Sabarmati Central Prison and was in charge of some of the barracks and was having links with accused No. 1 and No. 8. However, no departmental inquiry has been initiated against this government employee for the charges of unbecoming conduct of a government servant by having connections with criminals.

Following judgments are relied by the Ld. Advocate.

(1) AIR 1975 SC 1960 : 1975 SCC CR.663 - Dulichand Vs. Page 8 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined Delhi Administration.

(2) 1993 SC 1126 : 1993 CR.L.J 1029 - State of Karnataka Vs. Appa Balu Ingale (3) 1999 SCC (Cr.) 275 - State of Kerala Vs. Puttumana Illath J. Namboodiri.

(4) 1997 SCC (CR.) 970 - Kaptan Singh.

7. Learned advocate Pravin Gondaliya for Respondent No.1 - accused no. 5 has argued that:-

There is no evidence in the chargesheet connecting the Respondent No. 1 - Org. Accused No. 5 with the alleged offences. That the offence under Section 122 read with Section 120 B of the IPC, Arms Act or Explosive Substance Act or any other offence mentioned in the chargesheet. Hence, the trial Court has correctly allow the discharge Application vide order dated 15.09.1999. It is contended that the Applicant was serving as a Jail Sepoy and he used to help the Accused No. 8 by getting the battery of the mobile phone charged from Sairabanu, Org. Accused No. 1. However, said cell phone is not recovered from the present Applicant. That no details have been collected or found with regard to the alleged phone calls made by the accused No. 8 to one Shariefkhan based at Karachhi, Pakistan. On the contrary, the alleged cell phone has been recovered from the Accused No.6.

NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined It is also the case of the prosecution that the accused No. 8 sent a chit to one Mahmed Maksud Rahim Miya Sheikh through the present Respondent No. 1 - Org. Accused No. 5 which was to be given to Accused No. 1 Sairabanu and that the Respondent No. 1 - Org. Accused No. 5 went with Mahmed Maksud Rahim Miya to show the house of Sairabanu, however, no chit is recovered. Not a single statement of jail persons or jail authority has been recovered to substantiate the allegations made against the present Respondent No. 1. No departmental actions have been initiated against the Org. Accused No. 5 and there is no evidence to the effect that the Applicant had any pre-meeting of mind with the other accused to commit any offence. That even otherwise, the Trial Court has acquitted rest of the accused for the offence punishable under Section 122 and 120-B of the IPC and ought of four accused who came to be convicted and two came to be acquitted and thus there is no charge. Thus, the charge of 120-B and 122 have not been proved. The Trial Court was justified in discharging the present Applicant. That there is no perversity or illegality apparent on the face of the record. That there is no evidence to assume or infer that the Respondent No. 1 had pre-meeting of mind with the other accused for the alleged offences and has thus, rightly discharged the present Applicant from the charge levelled against him and thus, prayed to reject the Page 10 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined present Revision Application.

8. At the outset, the principal governing framing of charge and the powers of revision as annunciated by the Supreme Court in the case of State of Gujarat versus Dilipsinh Kishorsinh Rao reported in (2023) 4 Cri. 146 requires to be kept in mind while deciding the present revision application, wherein it is held thus:-

"7. It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed.

NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined

8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only.

9. If the accused is able to demonstrate from the charge- sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr.P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O.

10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu Vs. N. Suresh Rajan And Others (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:

NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined "29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr.P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not Page 13 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined give any right to the accused to produce any document at the stage of framing of the charge.

The submission of the accused is to be confined to the material produced by the investigating agency.

12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra Vs. Som Nath Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan Lal Soni (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.

13. The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor Vs. Ramesh Chander (2012) 9 SCC 460 where scope of Section 397 has been considered and succinctly explained as under:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an Page 14 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."

14. This Court in the aforesaid judgement has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228 Cr.P.C. is sought for as under:

NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined "27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction.

However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere.

No meticulous examination of the evidence is needed for considering whether the case would end in Page 16 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined conviction or not at the stage of framing of charge or quashing of charge.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."

15. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge."

9. Thus, while framing the charge, what is to be seen is whether the material placed before the court discloses grave suspicion against the accused which has not been properly explained. If so, the court will be fully justified in framing a charge and proceeding against the accused. The court also cannot enter into a roving enquiry into the pros and cons of the matter and weigh the evidence as if conducting a trial.

NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined However, the court can form an opinion that the accused might have committed the offence and can frame the charge. Thus, at the time of framing charges, the probative value of the material on record cannot be gone into, but before framing a charge, the court must apply its judicial mind on the material placed on record and must be satisfied that commission of offence by the accused was possible. On perusal of the impugned order, it clearly transpires that the learned trial judge has ignored both the facts and the law operating in the field of framing charge against the accused.

10. On perusal of the impugned order, the trial court has recorded reasons to the effect that the statement of accused No. 1 would not be sufficient to frame a charge against accused No. 8, Javed Khan. However, the court has totally given go by the statement of witness Maha Jabeen Parvez Abdul Hussain Dholakia. There is no finding regarding the statement of this witness. Why the statement before the investigation agency has been ignored by the trial judge is not apparent from the impugned order.With regard to accused No. 6, Nasir Miya, despite the learned APP drawing attention to the statements of Mohammad Yaqub and two other witnesses, the learned trial judge has miserably failed to consider such statements and instead relied on the statement of accused No. 1 Saira Banu--more particularly in giving a finding to the Page 18 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined effect that the phone used by Javed Khan is the same as the one recovered from Nasir Miya, which is not supported by the record. The learned judge has also held that there is no evidence on record, such as a ration card or electricity bill, to indicate that Nasir Miya was residing with Saira Banu (accused No. 1), this clearly amounts to appreciation of evidence at the time of framing charges and roving inquiry which is not permissible. The trial court ought to have only seen whether a prima facie case is made out at least for framing of charges rather than arriving at a conclusion as if a trial is conducted and evidence is analyzed.

11. With regards to accused No. 7, Ahmed Hussain, the learned judge has observed that "if at all, because of the instruction given by his master, he had gone to pay the bill, he cannot be saddled with the liability of committing such offence. He is an unfortunate servant of a master who has asked him to pay the bill, except that there is no evidence against him." This finding also seems to be based on assumptions without considering the role of the accused person more, particularly when section 120B of IPC has been invoked.

12. As far as accused No. 5, Mr. Rajinikanth Parmar, is concerned, the learned trial judge has recorded reasons to the effect that it is the case of prosecution that Rajinikanth was Page 19 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined serving as a Sipahi with Sabarmati Central Prison, he was in charge of some barracks and he was having link with accused No. 8 and No. 1. The learned trial judge has further recorded reasons to the effect that "if at all he was having any link, he can be prosecuted for the offence which took place on 23.03.1998; if at all, he had taken the cell phone of Saira Banu for the purpose of repair, can it be said that he was party to conspiracy? If at all accused, Rajinikanth being a Sipahi of Central Jail and having connection with the criminals, at the most, he can be served with a notice by the department and departmental action can be initiated for the act committed by him. It can be said to be unbecoming of a Sipahi because he was having connection with the criminals, as believed as per the case of the prosecution. Still, he cannot be presumed to be a conspirator." Thus, accused No. 5 has also been discharged, and that too based on assumptions. It seems that the learned trial judge has lost sight of the principle that it cannot enter into a roving enquiry. What is to be seen is whether a prima facie case is made out or not, more particularly when the charge is also of criminal conspiracy. The trial court has thus gone into the evidence meticulously, entered into a roving inquiry, and has lost sight of the principles laid down in the case of State of Andhra Pradesh versus Golkonda Linga Swamy, reported in (2010) 9 SCC 368, where it is held that it is immaterial whether the case is Page 20 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined based on direct or circumstantial evidence and the charge can be framed if there are materials showing the possibility about commission of the offence by the accused as against certainty. Thus, the trial Court failed to appreciate the material on record pointing out the possibility about commission of the alleged offence by the accused persons and instead ventured into roving inquiry.

13. As far as the judgments relied on by the respondents are concerned, in the case of Dhuli Chand (supra), it is held that the High Court's power of revision is severely restricted. It cannot embark upon appreciation of evidence. It was a case where the trial court convicted the accused, against which an appeal was preferred before the Sessions Judge, which came to be confirmed by the Hon'ble High Court in revision, which came to be rejected. Against this, the accused went before the Hon'ble Supreme Court, which also rejected the criminal appeal. The facts of the case are of no help to the accused. However, this Court certainly has very restricted jurisdiction to re-appreciate evidence after the trial is completed. The present case is of exercising revisional jurisdiction against an order of discharge, hence the case is of no help to the respondents, the accused. The second case is State of Karnataka versus Appa Balu Ingale (supra), where also under the provisions of section 401 of CrPC, the power of High Court Page 21 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined in revision against concurrent findings is discussed, and it is held that ordinarily it is not open to the High Court to interfere by appreciating evidence. This case is also of no help to the accused.The third case is State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (supra), where it is held that in revisional jurisdiction the High Court cannot be equated with appellate jurisdiction and reappreciation of evidence is not permissible unless it has resulted in gross miscarriage of justice. The last judgment is the case of Kaptan Singh and others versus State of MP and another (supra), where it is held that the High Court should not interfere with an order of acquittal unless there is manifest illegality or grave miscarriage of justice. This Court is bound by the ratio laid down in the above-referred cases, but the cited cases are of no help to the accused.

14. This Court is aware of its limited re-visional powers. However, as held in the case of Vinay Tyagi versus Irshad Ali, reported in (2013) 5 SCC 762 (para 18), "Normally, revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done, and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a Page 22 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025 NEUTRAL CITATION R/CR.RA/595/1999 JUDGMENT DATED: 11/08/2025 undefined sufficient ground for interference in such cases."Thus, the learned trial judge erred both on the factual aspect as well as the legal aspect, and therefore, this is a fit case to exercise the revisional jurisdiction vested in this Court to set right the perversity prima facie reflecting from the impugned order, discharging four accused persons by brushing aside settled principles of law, more particularly by entering into a roving inquiry, weighing the evidence and coming to conclusions based on assumptions and presumptions despite there being prima facie material showing the possibility about commission of the offences by the accused coupled with the fact that material also discloses grave suspicion against the accused which has remained unexplained.

15. In view of the above findings, the present Application is allowed and the impugned order dated 13.09.1999 below Exh. 1 discharging the accused is set aside.

16. Trial Court to frame charges against present Respondents and proceed with the trial in accordance with law.

(ILESH J. VORA,J) (P. M. RAVAL, J) MMP Page 23 of 23 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:18 IST 2025