Maheta Umed Kumar Mansukhlal vs State Of Gujarat
2021 Latest Caselaw 10345 Guj

     R/CR.RA/274/2021                           JUDGMENT DATED: 03/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL REVISION APPLICATION NO. 274 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI     sd/-
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  1 Whether Reporters of Local Papers may be allowed
    to see the judgment ?                                           YES

  2 To be referred to the Reporter or not ?                         YES

  3 Whether their Lordships wish to see the fair copy
    of the judgment ?                                                NO

  4 Whether this case involves a substantial question
    of law as to the interpretation of the Constitution              NO
    of India or any order made thereunder ?

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              MAHETA UMED KUMAR MANSUKHLAL
                               Versus
                      STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MR JK SHAH ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 03/08/2021

ORAL JUDGMENT

1. RULE. Rule is returnable forthwith. Mr. J.K. Shah, learned Additional Public Prosecutor waives service of rule on behalf of the respondent - State. With the consent of both the learned advocates, the present criminal revision application is taken up for final hearing today itself.

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2. By way of this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, the petitioner has challenged the legality and validity of the order passed below Exhibit-73 in Special Case No. 6 of 2019 dated 08.03.2021 passed by the learned Sessions Judge, Ahmedabad (City Civil Court No. 18).

3. The case of the petitioner is that on 08.04.2018, a complaint was lodged by one Shailendrasinh Raghuvansinh, Dy. S.P. CID (Crime), inter alia alleging that an application was received on 23.02.2018 from one Shailesh Babulal Bhatt, resident of Surat making accusation against LCB Police Inspector, Amreli and Police personnel to the effect that in a While Fortuner Car, he was abducted from Nidhi Petrol Pump along with his driver Mahipal and driver Kirit Paladiya. It is further alleged that near Keshav Farm situated at Dehgam Road, he was forcefully asked to stay there, a threat was given and from Mobile of Kirit Paladiya 200 bit coins were transferred in the wallet of Police Inspector A.P. Patel. It is also stated that another sum of Rs. 32 crores was also asked to transfer and thereafter another sum of Rs.78.50 lakhs were transferred by one Rajesh Desai and Girish Kanani through them for compromise, an amount was stated to have been sent. On receipt of such application filed by Mr. Shailesh Babulal Bhatt, a complaint came to be lodged. A detailed narration is reflecting from a complaint which has been filed and later on, on 11.05.2018 Section 167 and Section 119 of the Indian Penal Code came to be added so also provisions of section under the Prevention of Corruption Act and at the end of the investigation, charge sheet came to be filed.

3.1. It is the case of the petitioner that he is merely a Head Constable, was serving at a relevant point of time at Amreli, LCB and under the instructions of his superior authority i.e. the Senior Police Officer, who

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has given Vardhi and according to his instructions, along with other Police personnel, the petitioner was also accompanied in the raid. By basically stating that following the instructions of his superior Police Officer, he is wrongly roped in and, therefore, an application was submitted at Exhibit-59 before the trial court under Section 227 of the Code of Criminal Procedure for seeking discharge from the prosecution since according to the petitioner, no material is prima facie found to conclude against the petitioner and therefore, in absence of any case being made out against the petitioner, a request was made to discharge him from the prosecution. This application according to the petitioner was taken up for hearing by the learned City Sessions Court, Ahmedabad who vide order dated 08.03.2021 was placed to reject the application and it is this order passed by the learned City Civil Court No. 18, Special Atrocity Court, Ahmedabad is made the subject matter of present criminal revision application.

4. Mr. Ashish M. Dagli, learned advocate appearing for the petitioner has submitted that the order passed by the learned Sessions Judge is not only unjust, but contrary to the material on record and as such, the same is required to be quashed and set aside. It has been submitted that during the course of investigation, nothing is found against the petitioner, except the fact that he joined in a raid pursuant to the instructions of his superior Police Officer and further none of the statement indicates that the petitioner is connected with the actual crime which is alleged in the complaint and, therefore, in the absence of any material, the learned Judge, ought not to have rejected the request. By referring to some of pages attached to the petition compilation by separate paper book, it has been submitted that no material is found against the petitioner throughout investigation and the charge sheet is silent about the alleged pivotal role of the petitioner. Merely presence of the petitioner would not mean that the petitioner is actual culprit of vital part of the conspiracy, but

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ultimately, the conspiracy is alleged and to prove the conspiracy, there must be some material cogent enough to substantiate. By referring to a decision delivered by the Hon'ble Supreme Court in the case of Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra reported in AIR 2008 SC 2991, learned advocate Mr. Dagli has submitted that the elements of conspiracy are completely missing in the present case and, therefore, discharge should have been ordered by the learned Sessions Judge. Having not done so, the order impugned is suffering from vice of non application of mind. According to learned advocate Mr. Dagli, the order is not touching to the core issue involved in the proceedings and, therefore, in a way it is a non-speaking order, which requires to be quashed on this very count.

4.1. Learned advocate Mr. Dagli has submitted that there is a delay in lodging the FIR by approximately two months period and as per the even the Police Manual Clause No. 36, a Police Constable is under an obligation, rather bound to follow the instructions of his superior authority and, therefore, simply because the petitioner being Police Constable, observed the instructions of his superior authority, he cannot be held responsible and there is hardly any connecting material, even prima facie to prove the guilt of the petitioner and as such, since the order is not a well reasoned order, nor touching to the important issue, the same is required to be quashed and set aside. Learned advocate Mr. Dagli has submitted that basically the petitioner is a Police personnel at lower cadre and he could not to disobey the instructions of his superior authority, the learned Judge ought to have paid attention to this situation of the petitioner before passing the impugned order. By reiterating the fact that there is no material connecting the petitioner to actual commission of crime, the order in question is not sustainable. Hence, requested to grant the reliefs as prayed for in the revision application.

      R/CR.RA/274/2021                               JUDGMENT DATED: 03/08/2021




5.       As against this,    Mr. J.K. Shah, learned Additional Public

Prosecutor appearing on behalf of the respondent - State has submitted that the learned Judge while passing the impugned order has clearly spelt out the reasons as to why discharge application deserves rejection. A detailed order after granting full opportunity to the petitioner is passed in due discharge of discretion and as such, when every material is examined, there is hardly any case made out by the petitioner to construe the order as non speaking order. Mr. Shah, learned Additional Public Prosecutor has invited attention of this Court to a conclusion part of the order impugned in the revision application that there is no non application of mind and that being so, exercise in revisional jurisdiction, a specific conclusion arrived at may not be substituted.

5.1. Mr. Shah, learned Additional Public Prosecutor has further submitted that sufficiency of material cannot be gone into at this stage of discharge and prima facie opinion is to be observed on the basis of the material available and the learned Judge is satisfied, there is some case made out against the petitioner. A detailed critical analysis as if it is mini trial no exercise can be under taken and, therefore, by relying upon the decision delivered by the Hon'ble Supreme Court has submitted that the exercise undertaken by the court below cannot be stated to be irregular in any form and in absence of any manifest error, the revision may not be entertained.

6. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, few circumstances are not possible to be unnoticed by this Court.

6.1. From the record it appears that the learned Judge who passed the order has duly considered the overall material on record, which was adduced before him and after examining the material has passed a

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detailed order after assigning proper reasons. Since the material on record is dealt with by the learned Judge, it is not possible to construe the said order as perverse in any form. The reasons at length which are assigned are based upon critical analysis of material and as such, since a detailed order is passed, few observations contained in the order, the Court deems it proper to reproduced hereunder :-

"[4.1] It is evident that the an application forwarded by Shri Shailesh Bhatt on 23.08.2018 bearing mention of presence of four to five police persons at the crime scene along with the co-accused-Anant Patel and the said fact is also substantiated from the statement of witnesses viz. Hira[email protected] Jitendra Suthar, Vishal Sakalsariya, and it is also evident that the application did not report in detail of the incident which took place at the scene of offence before any authority.

[4.2] The argument of learned Advocate for the accused that such omission on the part of accused-Umedhbhai Maheta was attributable to his paternity leave right after the incident and the family sick leave thereafter can be appreciated only after recording of evidence and at the stage of deciding discharge application, the defense put forth by an accused cannot be taken into consideration.

[4.3] It is further evident that after forwarding an application on 23.08.2018 by the victim, an inquiry was connected by Dy.S.P. Shri Raghuvanshi and after such inquiry, offence was registered wherein, the name of accused-Umedhbhai Maheta was also cited along with other accused.

[4.4] The arguments with regards to non-holding of test identification parade during the course of investigation would stand addressed by noting that the purpose of hole such identification parade is solely for the purpose for ensuring that the investigation is proceeding in the right direction and the actual evidence with regards to identification of accused is the dock identification before the Court at the time of recording the deposition of witnesses. Therefore, since the accused was serving as police constable, the service record would certainly reveal his whereabouts on a particular date and particular time, merely because no test identification parade was conducted, the same cannot be made the base of inference that the involvement or identification of the accused is not prima facie established.

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[4.5] The Test Identification parade is a corroborative evidence and not a substantial evidence. In the case of Musheer Khan @ Badsha Khan & Anr. v. State of Madhya Pradesh, reported in AIR 2010 SC 762, the Hon'ble Apex Court laid down that TI parade are meant for the purpose of helping investigating agency with an assurance that they are progressing in a right erection and such parades are useful in a case where the accused are not known before-hand to the witnesses to ensure reliability of witnesses and to test their veracity at the time of investigation and that the actual evidence given by the witness in the Court.

[4.6] It has to be noted that preliminary investigation was carrier out prior to registration of FIR on the basis of application forwarded by the victim Shailesh Bhatt on 23.02.2018 wherein there was a mention of 4-5 policemen whose name were not known to him. However, during the investigation on the basis of such application the names of these policemen were revealed and hence the complaint does bear name of the accused-Umedhbhai Maheta as well; and therefore also the nonconducting of identification parade would not render the case against present accused as groundless.

[4.7] It is further evident from the perusal of the charge sheet papers that the sanction for prosecution qua the accused-Umedhbhai Maheta was given on 05.11.2018 and the sanction letter is also a part of the test papers, however, if copy is not given to the accused, the same shall be handed-over to the accused or his advocate in compliance of Sec.207 of the Cr.P.C. Therefore, it cannot be said that no sanction has been taken qua the accused-Umedhbhai Maheta.

[4.8] In the case of Chitresh Kumar Chopra Vs. State (NCT of Delhi ) [(2009) 16 SCC 605], Hon'ble Apex Court has held that at the stage of framing of charges, Court is required to evaluate material and documents on record only to find out the facts emerging therefrom which can be taken at their face value so as to disclose existence of all ingredients constituting the alleged offence or not. For this limited purpose, the Court may sift the evidence but the available material has to be considered only with a view to find out if there is ground for presuming that accused has committee an offence or not, but not for the purpose of arriving at a definite conclusion. It is mace clear that on the basis of material on record, if the Court can come to the conclusion that commission of offence is probable conclusion, the case of framing of charges exist.

[4.9] In AIR 2000 SC 2583: State of MP vs. Mohan Lal Soni- The Hon'ble Supreme Court while referring to several previous decisions,

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held that the crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produce are sufficient or not for convicting the accused. It is further held that, each case depends upon its particular facts and circumstances and sometime even a remote link between the activities of an accused and the facts of the case may justify a reasonable inference warranting a judicial finding that there is ground for presuming that an accused has committee the offence or at least to presume that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out.

[4.10] In light of ratio emerging from the above referred decisions as well as taking into account the settled legal position, it has to be appreciate that at the stage of framing of charge, the probative value of material on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at this stage and that strong suspicion may be sufficient to frame charge against an accused.

[4.11] It also needs to be appreciated that prosecution has put forth a case of conspiracy amongst all the accused and therefore, role of individual accused in such cases is immaterial. Besides, it would not be appropriate to expect any direct evidence regarding hatching of a conspiracy as it is obvious that direct evidence of conspiracy would be seldom available since such conspiracies are hatched in secrecy. However, the acts of accused in such cases in furtherance of the conspiracy and the conduct of accused in such cases would tend to corroborate the element of existence of conspiracy between them. It would be apt to note that Hon'ble Apex Court in the case of Devendara Pal Singh, considered the issue of conspiracy in terrorist activities and confirmed the sentence even in the absence of direct evidence against the accused. It was observed by the Hon'ble Apex Court that even if the conviction is based on solely confessional statement of the accused, no further corroboration is necessary if it relates to the accused, however, some corroboration is required if confession is used against the co-accused.

[4.12] It would also be apt to note in the case titled Ajay Kumar Parmar v. State of Rajasthan, reported in AIR 2013 SC 633, it has been held by the Hon'ble Supreme Court that "The court should not pass an order of acquittal by resorting to a course of not taking cognizance, where prima facie case is made out by the Investigating Agency. More so, it is the duty of the court to safeguard the right and

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interests of the victim, who does not participate in discharge proceedings. At the stage of application of Section 227, the court has to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. Thus, appreciation of evidence at this stage, is not permissible."

[5] As noted herein-above in the matter at hand, it has been argued that the accused-Umedhbhai Maheta was bound to follow the orders/instructions given by his Superior Officer Mr. Anant Patel, who is co-accused in the matter and therefore it can be inferred that the presence of accused-Umedhbhai Maheta at the site of offence as well as the act of accused having accompanied the co-accused Anant Patel is prima-facie made out. Further, merely because the accused- Umedhbhai Maheta was not named by the victim and no test identification parade was connected during the course of investigation, it cannot be said that there is absence of prima-facie case worthy of a trial against him; more particularly when the accused-Umedhbhai Maheta despite of having accompanied the accused-Anant Patel does not seem to have made any report or representation to the competent authority with regards to the happening of incident as alleged by the prosecution on 11.02.2018. The submissions about non-reporting due to paternity leave and sick leave cannot be considered at this stage. "

6.2. In addition to the aforesaid reasons which are assigned, this Court has also perused the relevant papers which are produced in the month of April, 2021 in the present revision compilation for perusal of the Court and from the contents of the said relevant record, this Court also found that prima facie there is some material against the petitioner to connect him in the alleged crime which will have to be examined in detail at the time of trial. From the said record, it further appears that not only the petitioner was part of the said team, but for what purpose the raid was carried out and what was happening was also within the knowledge of the petitioner and as such, the innocence which is tried to be projected before the Court that he was simply present, was unaware completely about what was going on and was just following the instructions of his superior authority, is not possible to be digested at this stage of the proceedings

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and rightly the court below has passed the order impugned and there is no material irregularity nor any patent illegality which would warrant this Court to exercise revisional jurisdiction just to substitute the conclusion.

6.3. Additionally from the contents of the FIR, coupled with the relevant statements which have been taken of one Shailesh Babulal Bhatt as well as narration of the call details would clearly indicate that it is not possible to presume at this stage that except following the instructions there was no knowledge of the petitioner as to what was going on in the raid. In fact, from the other material in the form of statement of Dharmendra Prataprao Pawar dated 10.05.2018 as well as from the statement of unarmed Police constable Jaydeepsinh son of Baldevsinh Gohel dated 29.06.2018, it is not possible to jump to a conclusion at this stage about innocence of the petitioner. In fact, serious conspiracy is alleged involving several accused and as such, there is no possibility of inferring at this stage that the petitioner is not connected with the crime which is alleged to have been committed. The Court upon perusal of the material also found that certain documents which are tried to be relied upon at page 46 onward of separate compilation are not forming part of the charge sheet undisputedly and as such, at this stage it is not possible to safely conclude that a case is made out of discharge by the petitioner on the basis of such material which is not forming part of the charge sheet. Such documents are yet to be tested if so relied upon, but it is difficult for this Court to consider in view of the settled position of law.

7. The Court at this stage is mindful of the recent proposition of law laid down by the Hon'ble Supreme Court in the case of M.E. Shivalingamurthy v. Central Bureau of Investigation, Bengaluru reported in (2020) 2 SCC 768, on the issue of discharge in which it has

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been clearly opined that defence of the accused cannot be looked into at this stage and the expression "the record of the case" used under Section 227 of the Code of Criminal Procedure is to be understood, as to the documents and articles, if any produced by the prosecution. The Criminal procedure Code does not given any right to the accused to produce any document at any stage of framing of the charge. At the stage of framing of the charge, submission of accused is to be confined to the material produced by the police and as such, keeping this proposition of law in mind, the documents which are tried to be pressed into service from page 46 onward which are undisputedly not forming part of the material produced by the Police, it is rightly not been examined by the court below and this Court is not in a position to express any opinion. The said stand about leave reports etc., will be examined during the course of trial, if such defence is projected by the petitioner at the relevant point of time, but on the basis of the said documents, it is not possible for this Court to set-at-naught the order passed by the trial court, which is otherwise a well reasoned and passed at length. Hence, no case is made out by the petitioner to call for any interference. Apart from that, the relevant observations contained in the aforesaid decision, in para 18, the Court would like to reproduce hereunder :-

"18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J & K v. Sudershan Chakkar). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police (see State of Orissa v. Debendra Nath Padhi)."

8. From the aforesaid proposition of law coupled with analysis of

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material on record, as indicated above, in furtherance of the reasons which are assigned by the court below, this Court is of the opinion that no case is made out to call for any interference.

9. No doubt, the exercise of jurisdiction under Sections 397 or 482 of the Code of Criminal Procedure is not that much circumscribed, but said aspect is to be examined consistent with the legislative policy to ensure expeditious disposal of the trial without the same being hampered in any manner. Thus, qua challenge to such kind of orders should be in rarest or rare cases to correct a patent error of jurisdiction and not to re-appreciate the matter. This law is consistently observed and reflecting even in a recent decision delivered by the Apex Court in the case of Sanjay Kumar Rai v. State of Uttar Pradesh reported in AIR 2021 SCC 2353 (=2021 (0) AIJEL -SC 67336) and as such, in consideration of overall issue, the Court is of the opinion that no case is made out by the petitioner.

9.1. In furtherance of this and in continuance of aforesaid conclusion, last submission in line by learned advocate Mr. Dagli is that the petitioner is at present out of duty and except his presence, there is no further act is alleged and he merely a duty bound Police Constable observed duty as assigned to him by the superior authority and, therefore, looking at the well defined proposition of the Hon'ble Supreme Court on the issue of conspiracy in the case of Yogesh Sachin Jagdish Soni (supra), it cannot be said the the petitioner is a part of the said conspiracy and, therefore, discharge ought to have been considered by the court below. Having not done so, this Court may kindly correct the error committed by the court below.

9.2. Now so far as this decision is concerned, the facts are altogether

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different and each case is depending upon its own factual matrix, the Court in such a peculiar set of circumstance has observed and analyzed the conspiracy issue, but the law on the issue is also further considered by the Apex Court in a recent later decision in the case of Bilal Hajar alias Hameed v. State represented by Inspector of Police reported in (2019) 17 SCC 451 in which it has been propounded that the essential ingredients of criminal conspiracy about the meeting of minds of two or more persons to do illegal act or an act by illegal means, not necessary that all conspirators must know each and every details of conspiracy nor necessary to prove their active role in such meeting. The presence and participation in meeting is sufficient. The relevant observations contained in para 30 to 33 since relevant are reproduced hereunder :-

"30. Reading of Section 120−A and Section 120−B, IPC makes it clear that an offence of criminal conspiracy is a separate and distinct offence. Therefore, in order to constitute a criminal conspiracy and to attract its rigor, two factors must be present in the case on facts: first, involvement of more than one person and second, an agreement between/among such persons to do or causing to be done an illegal act or an act which is not illegal but is done or causing to be done by illegal means.

31. The expression criminal conspiracy was aptly explained by this Court in a case reported in Major E.G. Barsay vs. State of Bombay (1962) 2 SCR 195. Learned Judge Subba Rao (as His Lordship then was and later became CJI) speaking for the Bench in his distinctive style of writing said:

"31. ........The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.'

32. Therefore, in order to constitute a conspiracy, meeting of mind of two or more persons to do an illegal act or an act by illegal means is a must. In other words, it is sine qua non for invoking the

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plea of conspiracy against the accused. However, it is not necessary that all the conspirators must know each and every detail of the conspiracy, which is being hatched and nor it is necessary to prove their active part/role in such meeting.

33. In other words, their presence and participation in such meeting alone is sufficient. It is well known that a criminal conspiracy is always hatched in secrecy and is never an open affair to anyone much less to public at large."

10. So keeping the aforesaid proposition of Hon'ble Supreme Court in mind, at this stage of the proceedings, it is not possible come to a definite conclusion that the petitioner is not part of the criminal conspiracy nor is guilty of such crime as alleged. The said aspect will be examined at length during the course of trial. So the contention which has been raised by the learned advocate for the petitioner is not possible to be accepted. Accordingly, the revision application being meritless, the same stands dismissed. However, at this stage, the Court is clarifying that the observations and the reasons which are assigned in the present order are only for the purpose of deciding the application for discharge under Section 227 of Code of Criminal Procedure. It is needless to state that the trial court will adjudicate without being influenced by the observations made in the present order.

11. Accordingly, the criminal revision application stand dismissed. Rule is discharged.

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(ASHUTOSH J. SHASTRI, J) phalguni