Pradeep Nirankarnath Sharma vs State Of Gujarat
2021 Latest Caselaw 5827 Guj

    R/SCR.A/6536/2019                               CAV JUDGMENT DATED: 11/06/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CRIMINAL APPLICATION NO. 6536 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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

1 Whether Reporters of Local Papers may be allowed to Yes see the judgment ?

2       To be referred to the Reporter or not ?                   No

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

4       Whether this case involves a substantial question of lawNo

as to the interpretation of the Constitution of India or any order made thereunder ?

============================================ PRADEEP NIRANKARNATH SHARMA Versus STATE OF GUJARAT ============================================ Appearance:

MR HB CHAMPAVAT(6149) for the Applicant(s) No. 1

MR MITESH AMIN PUBLIC PROSECUTOR WITH MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR(2) for the

============================================ CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

Date : 11/06/2021

CAV JUDGMENT

1. Heard learned Advocate Shri R.J. Goswami with learned

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Advocate Shri H.B. Champavat for the applicant and learned

Public Prosecutor Shri Mitesh Amin with learned Additional

Public Prosecutor Ms. Maithili D. Mehta for the respondents.

2. Issue Rule returnable forthwith. Learned Public Prosecutor

with learned Additional Public Prosecutor waives service of rule

on behalf of the respondents

3. With consent of the parties, the present petition is taken up for

final hearing.

4. By way of present petition, the petitioner challenges the

judgement and order dated 09.02.2019 passed by the learned 8 th

Additional Sessions Judge, Kachchh at Bhuj in Criminal Revision

Application No. 41 of 2018 whereby order below Exh. 204 in

Criminal Case No. 1405 of 2011 dated 17.03.2018 passed by

learned Chief Judicial Magistrate, Katchchh at Bhuj was

confirmed.

5. The facts leading to the present petition in brief are as under:

5.1 At the relevant point of time the petitioner was in judicial

custody as an under-trial prisoner in connection with the offence

bearing I-C.R. No. 09 of 2011 and I-C.R. No. 01 of 2011 registered

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with CID Crime, Rajkot Zone Police Station. During the course of

search in Barrack No. 11 where the petitioner was lodged at Palara

Jail, Bhuj on 13.06.2014, a mobile phone along with sim card were

seized. An FIR came to be registered with the Bhuj Taluka Police

Station bearing II-C.R. No. 3100 of 2011 by the Police Inspector

(SOG). FIR was lodged for the offence punishable under Section

188 of the Indian Penal Code (hereinafter referred to as 'IPC') and

Sections 42, 43 and 45(12) of the Prisons Act, 1894 (hereinafter

referred to as 'the Prisons Act').

5.2 An investigation was carried out with regard to the said

complaint and whereas the petitioner and other accused were

arrested in connection with the said complaint. The Investigating

Officer had submitted a report dated 15.06.2011 for adding charge

under Sections 465, 468, 471 read with Section 120B of the IPC.

Ultimately the Investigating Officer had filed charge-sheet against

accused before the learned Magistrate on 09.08.2011 for offences

punishable under Sections 465, 468, 471 read with Section 120B of

the IPC and Section 188 of IPC as well as Sections 42, 43 and 45(12)

of the Prisons Act. The criminal case which was registered pursuant

to the charge-sheet was numbered as Criminal Case No. 1405 of

2011. Since the procedure as contemplated under Section 195 read

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with Section 340 of the Criminal Procedure Code, 1973 ( hereinafter

referred to as 'Cr.P.C') was not followed by the Investigating Officer

before initiation of prosecution therefore the petitioner preferred

application at Exh. 29 on 03.12.2011 before the learned Trial Court

with a request to return the charge-sheet to the Investigating Officer

for following appropriate procedure. The said application came to

be rejected by the learned Trial Court vide order dated 11.07.2014.

The petitioner had thereafter preferred Criminal Revision

Application No. 103 of 2014 before the learned Sessions Court and

whereas vide order dated 17.07.2015 the learned Sessions Court had

been pleased to reject the application preferred by the petitioner.

The petitioner thereafter preferred Special Criminal Application No.

4906 of 2015 before the this Court and whereas on the statement

made by the learned Advocate General that the State would not

have any objection if the trial is proceeded further against the

petitioner except with regard to offence punishable under Section

188 of I.P.C., the petition had been withdrawn. It would be

pertinent to note that liberty had been reserved for filing appropriate

complaint before Magistrate as provided under Section 195 of

Cr.P.C. with regard to offence punishable under Section 188 of

I.P.C. It wold be further pertinent to note that liberty was also

reserved in favour of the petitioner to file discharge application

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before the learned Trial Court.

The petitioner had thereafter preferred discharge

application at Exh. 204 under Section 239 of Cr.P.C on 13.10.2017

and whereas the learned Trial Court after hearing the petitioner as

well as the respondent-State had been pleased to reject the said

application vide order dated 17.03.2018. The petitioner being

aggrieved by the aforesaid order had preferred Criminal Revision

Application No. 41 of 2018 before the District and Sessions Court

at Bhuj-Kachchh. After hearing both the parties learned 8 th

Additional Sessions Judge, Kachchh at Bhuj had been pleased to

rejected the said Revision application vide judgement and order

dated 07.02.2019. The petitioner being aggrieved and dissatisfied

with the same has preferred the present petition before this Court.

6. Heard learned Advocate Shri R.J. Goswami with learned

Advocate Shri H.B. Champavat for the petitioner. Learned

Advocate has taken this Court through to the impugned

judgements passed by the learned Sessions Court as well as the

learned Trial Court as well as through other documents on record

and extensively through the Prisons Act. Learned Advocate for the

petitioner has taken this Court through the definition of 'prison' in

Section 3(1) and in the definition of word 'prohibited article' under

Section 3(9) of the Prisons Act. Learned Advocate has emphasized

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that 'prohibited article' according to the definition means an article

which is expressly prohibited by any rule under this Act and

whereas the said article is prohibited to be introduced or removed

into or out of the prison. Learned Advocate has emphasized that

there have to be specific rules to define a prohibited article.

Learned Advocate has thereafter taken this Court through Section

21, which is with the regard to duties of gate-keeper. Learned

Advocate has further taken this Court through Section 24 which is

with regard to examining prisoners or admission and whereas it is

submitted that the mobile phone and sim card which are the

alleged prohibited articles were not seized by the gate-keeper who

as per the requirement of Section 21 is under an obligation to

search any person entering the prison and leaving the prison. He

further submits that every prisoner would be examined upon

admission to prison and as regards the petitioner nothing had

been found at the time of his admission. He further took this

Court through Sections 42, 43 and 45(12) and 46 of the Prisons

Act and has inter alia submitted that 'prohibited article' has to be

declared as such by rules made under Section 59 of the Prisons Act

and whereas according to the learned Advocate there are no rules

framed under Section 59 of the Prisons Act which declares a

mobile phone and sim card to be prohibited articles. Relying upon

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Sections 46 and 49 learned Advocate has submitted that conjoint

reading of Section would lead to a reasonable conclusion that it is

Superintendent who has powers to examine whether a person who

has committed offence and to decide appropriate punishment

thereof. Relying upon Section 49, learned Advocate has submitted

that the said Section carves out an exception to Section 46

inasmuch as punishment other than punishments prescribed in the

sections other than Section 49 could be imposed only by the order

of a Court of Justice. Learned Advocate has relied upon Section

59(1)(13) to submit that rules are necessary as per Section 59(1)

(13) for defining prohibited articles. He has further relied upon

Section 59(2) which requires that as soon as the rules have been

made under Section 59, the same had to be laid before the State

Legislature. Learned Advocate has sought to submit that no rules

have been framed by the Government under the said Section for

declaring articles as prohibited article and hence recovery of a

mobile phone and sim card could not result in the petitioner being

charged with offences under the Prisons Act. Learned Advocate

further submits that notification no. GG/18/2009/Zalak/112009-

3985/J dated 12.10.2009 being relied upon by the respondent-State

is not a 'rule' at all and whereas it is a mere notification.

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7. Learned Advocate has sought to rely upon decision of the

Hon'ble Supreme Court in case of Varinder Singh vs. State of

Punjab and Another reported in (2014) 3 SCC 151. According to

the learned Advocate the present issue is squarely covered by the

decision of the Hon'ble Supreme Court and therefore relying upon

the said judgement he has submitted that this Court may allow

the petition.

7.1 Learned Advocate for the petitioner has further submitted that

fresh proceedings have been initiated by filing complaint before

the learned Magistrate for the offence punishable under Section

188 of IPC.

7.2 Learned Advocate for the petitioner has summed up his

arguments by submitting that since there are no rules framed

under Section 59 of the Prisons Act whereby mobile phone has

been declared as 'prohibited article' and furthermore since no

material has been produced to support the offence under Sections

465, 468, 467 and 471 of the Indian Penal Code and moreover

since there is no material produced as far as conspiracy is

concerned therefore the charges against the petitioner being

groundless, the petitioner ought to be discharged.

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8. As against the same, learned Public Prosecutor Shri Mitesh

Amin has submitted that the petitioner has successfully managed to

stall the proceedings for almost 10 years after filing of the criminal

complaint and whereas learned Public Prosecutor has drawn

attention of this Court to order dated 14.09.2017 of this Court

( Coram: A.J. Desai, J.) in Special Criminal Application No. 4906 of

2015 whereby the Court while permitting the petitioner to withdraw

the said application with liberty to file appropriate application for

discharge had clearly intended that the learned Trial Court should

proceed without any further delay. Learned Public Prosecutor has

emphasized on the observations " trial court shall proceed further

with the case forthwith with regard to the other offences" . Learned

Public Prosecutor has submitted that the intent of the Court was

that while the applicant was at liberty to prefer discharge application

with regard to offence punishable under Section 188 if the

Investigating Officer files a complaint before the Magistrate but as

far as the other offences are concerned, the learned Trial Court was

directed to proceed further.

8.1 Learned Public Prosecutor has further submitted that the

offence under the Prisons Act as well as offence under the Indian

Penal Code are interlinked and that the offence under the Prisons

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Act cannot be dissected from the offences under the Indian Penal

Code. Learned Public Prosecutor has further submitted that

notification dated 12.10.2009 was admittedly issued in exercise of

power under Section 59 of the Prisons Act and therefore it cannot

be contended that the State has not promulgated a rule whereby the

mobile was declared as a 'prohibited article'.

8.2 Learned Public Prosecutor has also submitted that

insofar as allegation that there is no material to support the

allegation of conspiracy, that there was sufficient material on record

to show that the accused who was lodged in a prison at the

relevant point of time had procured mobile phone with the help of

other co-accused and whereas signature of witness Bhavesh

Shantilal Mistri had been forged to obtain sim cards. Learned

Public Prosecutor has relied upon the decision of the Hon'ble

Supreme Court reported in case of Shivnarayan Laxinarayan Joshi

and others vs. State of Maharashtra and others reported in AIR

1980 SC 439 to submit that conspiracy is always hatched in secrecy

and it may be impossible to adduce direct evidence. He has further

submitted that as such role of this Court in a petition where order

of framing charge is challenged is very limited and whereas learned

Public Prosecutor has relied upon observations of the Hon'ble

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Supreme Court in case of Asian Resurfacing of Road Agency

Private Limited and another vs. Central Bureau of Investigation

reported in 2018(16) SCC 299 in that regard. Thus learned Public

Prosecutor has submitted that both the learned lower Courts have

not committed any patent error of jurisdiction requiring

interference of this Court and therefore this Court may not

entertain the petition preferred by the petitioner.

9. In rejoinder learned Advocate Shri Goswami for the petitioner

has relied upon decision of the Supreme Court in case of Union of

India versus Prafulla Kumar Samal and another reported in 1979(3)

SCC 4 where the Hon'ble Supreme Court has laid down the

principles to be considered while considering the question of

framing charge.

10. Learned Advocate Shri Goswami has also submitted

that insofar as the allegation that the petitioner has stalled the

proceedings, there is no overt-act by the petitioner to delay the

proceedings and whereas the petitioner had availed the remedies

available to him under the law and other than the same there is no

dilatory tactics adopted by the petitioner.

11. Learned Advocates for the respective parties have not

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submitted anything further.

12. Heard learned advocates for the parties and perused

the record as well as the orders of the learned Lower Courts. At

the outset it required to be noted that the Supreme Court in case

of Asian Resurfacing of Road Agency Private Limited and another

vs. Central Bureau of Investigation reported in 2018(16) SCC 299

has circumscribed the jurisdiction of this Court while considering

a petition challenging the order of charge by holding "Thus

considered, the challenge to an order of charge should be

entertained in a rarest of rare case only to correct a patent error of

jurisdiction and not to re-appreciate the matter".

(emphasis supplied)

12.1 Thus what is to be considered by this Court at this

stage is whether the learned Lower Courts have committed any

patent error of jurisdiction or not. At this stage it would be

required to be noted that learned Advocate for the petitioner has

made his submissions as regards all the issues which he had raised

before the learned Lower Courts and whereas no attempts have

been made to argue before this Court on any specific point where

the learned Lower Courts having committed any patent error of

jurisdiction which requires interference of this Court.

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13. At this stage it would be worthwhile to refer to decision

of the Supreme Court in case of Sajjan Kumar vs. Central Bureau

of Investigation reported in 2010 (9) SCC 368 where the Supreme

Court has set out the principles as regards exercise of jurisdiction

under Sections 227 and 228 of the Code of Criminal Procedure.

Para 17 of the judgment is reproduced as under:

"17. Exercise of jurisdiction under Sections 227 & 228 of

Cr.P.C.

On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:-

(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

v) At the time of framing of the 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 the commission of offence by the accused was possible.

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vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

vii) If two views are possible and one of them gives rise to suspicion

only, as distinguished from grave suspicion, the trial Judge will be

empowered to discharge the accused and at this stage, he is not to see

whether the trial will end in conviction or acquittal." The aforesaid

would be relevant insofar as considering the decisions of the

Trial Court as to whether the Trial Court has exercised its

jurisdiction in terms of the principles as set out by the

Supreme Court in case of Sajjan Kumar vs. Central Bureau of

Investigation(supra). Insofar as the scope of revisional power

of Sessions Court, it would be beneficial to refer to the

decision of the Supreme Court in case of Amit Kapoor vs.

Ramesh Chander reported in (9) SCC 460 whereby the

Supreme Court has explained the revisional powers of the

Court exercising jurisdiction under Section 397 of the Cr.P.C.

"Section 397 of the Code vests the court with the power to call for and examine the records of an 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 scrutinize 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

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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."

14. Thus this Court is required to examine the impugned

judgements, by the Trial Court as well as the Revisional Court, as to

whether the said lower Courts have exercised their jurisdiction in

consonance with the principles set out by the Supreme Court in

case of Sajjan Kumar vs. Central Bureau of Investigation(supra) and

in case of Amit Kapoor vs. Ramesh Chander (supra). Such critical

examination would have to be done by this Court keeping in mind

the scope and jurisdiction available to this Court as set out by the

Supreme Court in case of Asian Resurfacing of Road Agency

Private Limited and another vs. Central Bureau of

Investigation( supra) .

15. The learned Trial Court as well as the learned Sessions Court

as regards offence under Sections 42, 43 45(12) of the Prisons Act

have noted that it was contended on behalf of the petitioner herein

that the Government has neither framed the rule nor laid the same

before the State Legislature as contemplated under Section 59 of

the Prisons Act and since the said procedure is not complied with,

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therefore the petitioner could not be charged for committing the

said offence. The learned lower Courts have noted that as against

the submission for the petitioner, the prosecution had submitted

that there is a notification of the Government prohibiting articles of

communication in the prison and whereas the petitioner herein

committed breach of the said notification by receiving, possessing

and using the mobile phone and sim card in the jail. That the

notification is dated 12.10.2009, being admittedly prior to the date

when the petitioner was found in possession of the prohibited

articles. While it is argued by the prosecution that the notification

has been issued by the Government in exercise of powers under

Section 59 of the Prisons Act and whereas while the petitioner has

argued about the legality and validity of the notification dated

12.10.2009, and whereas on the said issue both the learned Lower

Courts have come to the conclusion that the same is required to

be proved by leading evidence. In the opinion of this Court, by

coming to such conclusion, both the learned Lower Courts have

not committed any patent error of jurisdiction which requires

interference by this Court at this stage. The issue as to whether

notification relied upon by the State is a Rule under Section 59 of

the Prisons Act, would have to be proved by leading of evidence

and the same would not be adjudicated by a Court while examining

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an application for discharge. Thus in the considered opinion of this

Court, the findings arrived at by the learned sub-ordinate Court are

sustainable, requiring no interference.

16. Insofar as reliance placed by the learned Advocate for the

applicant, upon decisions of the Supreme Court in case of Varinder

Singh (supra), in view of the fact that the notification being relied

by the State as being a Rule, admittedly being much prior to the

date of the search, when the mobile phone etc. was seized therefore

the ratio laid down by the said judgement would not be applicable

in the facts of the present case.

17. Furthermore, the Courts below have come to a conclusion as

regards the challenge to offence under Sections 465, 471 and 120B

of Indian Penal Code that the Investigating Officer has recorded

statement of one Mr. Bhavesh Shantilal Mistry whose documents

are alleged to have been used by the accused and also the statement

of sim card dealer and further call details are also produced along

with police papers submitted before the Courts below. That the

Courts below have noted that signature of the said Mr. Mistry is

alleged to have been forged by the accused for obtaining the sim

card and under such circumstances, the Courts below have held

that the sim card and mobile phone were obtained by the accused

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persons by hatching criminal conspiracy in which each of the

accused persons have done some overt-act and are liable as per

Section 10 of the Evidence Act for conspiracy,

18. It had been argued before the learned Trial Court as well as the

revisional Court that there is no direct evidence of conspiracy

between the accused persons and therefore the charge of conspiracy

is baseless. That both the Courts have held that conspiracy is always

hatched in secrecy and it is impossible for the prosecution to

adduce direct evidence with regard to the conspiracy. In most of

the cases, the existence of the conspiracy can therefore be inferred

from the circumstances proved by the prosecution if such

inference is possible then the prosecution need not necessarily

prove that perpetrators expressly agreed to do or cause to be done

the illegal act. Furthermore both the lower Courts have held that

the existence of the conspiracy and its objects can be inferred from

surrounding circumstances and circumstantial evidence and and

conduct of the accused. Both the Lowers Courts have further held

that considering the material placed before the Court the allegation

of conspiracy does not appear to be groundless. This Court is in

agreement with the findings of the learned lower Courts as regards

the charge of conspiracy. The Supreme Court in case of

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Shivnarayan Laxinarayan Joshi and others vs. State of Maharashtra

and others reported in AIR 1980 SC 439 has held that conspiracy

can only be proved largely from the inference drawn from the act or

illegal omission committed by the conspirator in pursuance of a

common thing. Thus considering the findings of the learned

Lowers Courts on this aspect and considering the observations of

the Supreme Court in case of Shivnarayan Laxinarayan Joshi and

others vs. State of Maharashtra and others(supra) as referred to

above, this Court is of the opinion that no patent error of

jurisdiction is committed by the learned lower Courts.

19. Insofar as the issue of dilatory tactics having been

adopted by the petitioner, this Court finds favour in the

submissions advanced by the learned Public Prosecutor. In the

earlier round of litigation, this Court had passed order dated

14.09.2017 in Special Criminal Application ( Quashing) No. 4906

of 2015 which reads as thus:

"Learned Advocate General Mr. Kamal Trivedi assisted by Mr. Mitesh Amim, learned Public Prosecutor, appearing for the State of Gujarat states the State has no objection at this stage that if, the trial is proceeded further against the petitioner, except with regard to an offence punishable under Section 188 of the Indian Penal Code. However, he further states if the concerned officer find necessary, may file an appropriate complaint before the Magistrate as provided under Section 195 of the Code of Criminal Procedure, 1973,and seeks liberty for the same.

In view of the above statements, learned advocate

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Mr.Goswami, appearing on behalf of the applicant seeks permission to withdraw the present application with a liberty to file an appropriate application for discharge before the learned Trial Court. Trial Court shall proceed further with the case forthwith with regard to the other offences.

Permission to the petitioner and respondent No.1 as prayed for is granted. The present application is disposed of as withdrawn, with the above liberty."

19.1 In the considered opinion of this Court, liberty was

reserved to file application for discharge before the Trial Court

with regard to a complaint that may be filed by the concerned

officer before the Magistrate as provided under Section 195 of the

Code of Criminal Procedure, 1973 and whereas the Court has

specifically directed that the Trial Court shall proceed further

forthwith with regard to other offences. The words other offences

in the context of the order would mean offences other than

offence punishable under Section 188 of the Indian Penal Code.

Inspite of such a clear direction it appears that a discharge

application has been filed for the 'other offences' which was

resulted in the Trial being stalled for all this while even after the

above referred direction of this Court. Thus it appears that the

petitioner has misused the liberty granted by this Court vide order

dated 14.09.2017 but since this issue does not appear to have been

agitated before the learned lower courts, this Court refrains itself

from making any further observation/direction in this regard.

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                     20.       In view of the discussion,              findings and

conclusions as noted hereinabove, this Court is of the

considered opinion that no interference is warranted against

the orders passed by the learned sub-ordinate Courts, hence

the present petition is rejected. Rule is discharged.

(NIKHIL S. KARIEL,J)

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