K.Ratanlal And Co. Thro Ratanlal ... vs State Of Gujarat
2021 Latest Caselaw 1803 Guj

             R/CR.A/1750/2019                             JUDGMENT




                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                        R/CRIMINALAPPEALNO. 1750of 2019

FORAPPROVALANDSIGNATURE:

HONOURABLEMR. JUSTICEA.J.DESAI                                        Sd/-
and
HONOURABLEMR. JUSTICEA.C. RAO                                       Sd/-
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1   Whether Reporters of Local Papers may be allowed                    No
    to see the judgment ?

2   To be referred to the Reporter or not ?                             No

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

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

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            K.RATANLALANDCO. THRORATANLALBALDEVJIPARMAR
                                Versus
                          STATEOF GUJARAT
==============================================================================
Appearance:
MRASHISHM DAGLI(2203)for the Appellant(s) No. 1
MRRCKODEKAR,ADDL.PUBLICPROSECUTOR(2)for the Opponent(s)/Respondent(s)No.
1
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 CORAM: HONOURABLE MR. JUSTICE A.J.DESAI
        and
        HONOURABLE MR. JUSTICE A.C. RAO

                              Date: 08/02/2021
                              ORALJUDGMENT

(PER: HONOURABLEMR. JUSTICEA.C. RAO)

The present appeal is filed under Section 454 of the

Code of Criminal Procedure, 1973, (for short "the Cr.P.C.")

R/CR.A/1750/2019 JUDGMENT

against the judgment and order dated 30.11.2019 passed by the

5th Additional Sessions Judge, Rajkot at Dhoraji, in the Sessions

Case no.18 of 2015 & (Consolidate Sessions Case No.14 of

2016).

2. The short facts leading to the present appeal are as

under :

2.1 The appellant herein is the original complainant who

has lodged an FIR with Dhoraji Police Station as C.R. No.I-5 of

2015 for the offences punishable under Sections 395, 397, 323,

412, 416(A), 120B of the Indian Penal Code and under Section

25(I-A) of the Arms Act. Pursuant to the registration of the FIR,

investigation started and at the end of the investigation, final

charge-sheet came to be submitted in all against 6 accused

persons and subsequently accused No.7 came to be arrested,

qua him supplementary charge-sheet came to be filed and

therefore, qua 6 accused case is numbered as Sessions Case

No.18 of 2015 and qua accused who came to be arrested later

on, case came to be registered against him as Sessions Case

No.14 of 2016 (consolidated).

2.2 The trial proceeded further and at the end of the trial,

6 accused, whose case came to be registered as Sessions Case

No.18 of 2015, came to be acquitted accused namely,

R/CR.A/1750/2019 JUDGMENT

Shashanksinh @ Ladusinh Rajput whose case came to be

registered as Sessions Case No.14 of 2016, came to be convicted,

conviction order came to be passed under Section 395 of the IPC

and ordered to undergo rigorous imprisonment of life and fine of

Rs.5,000/- and in default, to make payment of fine further six

months of rigorous imprisonment has been imposed. Said

accused came to be acquitted from the charges under Sections

397, 323, 412, 216-A, 120B of the IPC and Section 25(I-A) of the

Arms Act and under Section 135 of the Gujarat Police Act. Even

rest six accused as mentioned above came to be acquitted from

all the charges.

2.3 While passing the final judgment, the learned 5th

Additional Sessions Judge, Rajkot at Dhoraji on 30.11.2017, has

observed that so far as Muddamal which was handed over by

way of interim order, the same came to be confirmed. However,

qua remaining Muddamal order of enquiry was made.

2.4 The appellant has filed an application seeking

Muddamal No.156 of 2018, the Muddamal which was recovered

from different accused during the course of investigation. The

application was heard by the learned Sessions Judge, Rajkot at

Dhoraji and by order dated 30.03.2019, the learned Sessions

Judge was pleased to reject the application. Being aggrieved by

R/CR.A/1750/2019 JUDGMENT

the same, the appellant has preferred the present appeal.

3. At the time of arguments, Mr.Aashish Dagli, the

learned advocate for the appellant, has contended that the order

of the trial court is not correct and the trial court has wrongly

rejected the application of the appellant.

4. On the contrary, Mr.R.C. Kodekar, the learned APP

appearing for the respondent - State has contended that the

appellant had filed two applications and in one of the

applications, he had not joined the original accused from whom

the muddamal was recovered. He has contended that State has

not filed any acquittal appeal. He has contended that order of

the trial court is correct and does not require any interference.

5. On perusal of the record, it appears that the trial

court has rejected the application for muddamal as there was

nothing on record as to whether there is any appeal pending or

not and if the appeal is pending, the muddamal cannot be

disposed of. The application under Section 452 cannot be

entertained.

5.1 We do not find any reason to deviate from the view

taken by the trial court. However, all the accused, except the

accused of the Criminal Appeal No.1276 of 2018, are acquitted.

            R/CR.A/1750/2019                      JUDGMENT




5.2        Now, it is clear that the State has not filed any appeal

against the order of acquittal and the appeal filed by the convict

accused, wherein the learned counsel Mr.A.D. Shah, appearing

for the appellant, has fairly accepted the fact that the muddmal

is not recovered from his client and they do not have any

objection if the Court decides the application of the muddamal.

6. Under the circumstances, we are of the view that it

would be proper to quash and set aside the order passed by the

trial court and the trial court shall be directed to decide the

application, if any, filed under Section 452 of the Cr.P.C. for

claiming the muddamal. The appellant is also permitted to

produce all necessary relevant documents and to publish public

notice in the newspaper if notice is not served to the original

acquitted accused when muddamal was received, within a

reasonable time. Ordered accordingly.

With the above observations and directions, the

present appeal stands disposed of.

(A.J.DESAI,J)

(A. C. RAO,J)

dolly