Bihari Mahammadkhan Sahebkhan vs State Of Gujarat
2021 Latest Caselaw 7285 Guj

     R/SCR.A/8311/2018                             ORDER DATED: 30/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 8311 of 2018

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                     BIHARI MAHAMMADKHAN SAHEBKHAN
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. MAITHILI MEHTA ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 30/06/2021

                                ORAL ORDER

Heard learned Advocate Shri N.K. Majmudar for the applicant and learned Additional Public Prosecutor Ms. Maithili Mehta for the respondent-State.

2. By way of this application, the applicant challenges the order passed by the 9th Additional Sessions Judge, Banaskantha at Palanpur dated 27.03.2017 whereby the order passed by the learned Magistrate rejecting the application for discharge, preferred by the present applicant has been confirmed. At the outset it is required to be noted that the order under challenge of the Revisional Court is dated 12.05.2018 and whereas this petition having been filed in the year 2018, till date no orders including an order of notice has been issued by this Court, which prima facie leads the Court to infer that the applicant was not interested in conducting the matter for almost more than 3 years. On a query put by this Court to learned Advocate Shri Majmudar as to the

R/SCR.A/8311/2018 ORDER DATED: 30/06/2021

status of trial, it is informed by learned Advocate that the charge has not been framed in the criminal trial till now. Thus, reason for not conducting the matter is not fay for one to make out. On one hand the application challenging the order of rejection of discharge is not conducted and on the other hand the trial has not proceeded further. While this observation is not to cast any aspersion on the applicant of having delayed the trial but at the same time the conduct of the applicant cannot be overlooked. This is not to observe that the applicant was instrumental in delaying the trial.

3. It would also be relevant to mention here that the Supreme Court in the case of Asian Resurfacing of Road Agency Private Limited And Another (2018) 16 SCC 299 has interalia directed that in case where, High Courts have granted stay, against further proceedings of trial then after a period of six months if there is no reasoned orders extending the order of stay, the trial courts are under a direction to proceed further with the trial. The applicant in this case appears to have gone a step further and ensured even without any order of interim relief by this Court, that the trial was stalled for more than three years.

4. Considering the same, while this Court was not inclined to hear this application on merits, learned Advocate Shri Majumudar has requested this Court to consider submission on merits and whereas the learned Advocate has relied upon a document at page 69 of the affidavit of the applicant himself dated 28.05.2008, where it is stated by the applicant that he had personally visited the IOC at Abu road and informed about stealing of crude oil by some other persons

R/SCR.A/8311/2018 ORDER DATED: 30/06/2021

and whereas it is submitted that instead of any action being taken on the same unfortunately the applicant is mentioned as an accused in the array of accused in the criminal complaint.

2.1 The facts in brief show that the criminal complaint came to be filed by respondent no. 2 herein interalia alleging commission of the offences punishable under Sections 379, 427, 120-B Indian Penal Code as well as for the offences under Section 3 and 7 of the Prevention of Damage to Public Properties Act, registered as C.R.-I 68 of 2008 with the Palanpur, Police Station District Banaskantha. The applicant had not been named as an accused whereas the complaint had been filed against unknown persons. The applicant is arraigned as an accused in the charge sheet which came to be filed in the month of October 2008. The applicant had after filing of the charge sheet preferred an application for discharge before the learned Chief Judicial Magistrate, Palanpur in Criminal Case No. 9349 of 2008 and whereas the learned Judicial Magistrate First Class, Palanpur, vide order dated 27.03.2017 had been pleased to reject the application interalia holding that from the perusal of the charge sheet papers, prima facie involvement of the present applicant could be made out and further prima facie it could be made out that the conspiracy for stealing oil appears to have been hatched at the residence of the present applicant.

3. The applicant being aggrieved by the same had challenged the said order by preferring the Revision Application under Section 379 of the Code of Criminal Procedure before the learned Sessions Judge, Banaskantha at

R/SCR.A/8311/2018 ORDER DATED: 30/06/2021

Palanpur vide Criminal Revision Application No. 19 of 2017. The 9th Additional Sessions Judge, Banaskantha at Palanpur vide judgement and order dated 12.05.2018 had been pleased to reject the application preferred by the applicant more particularly observing that from the charge sheet papers there is material to believe that the present applicant was involved in the conspiracy for stealing oil and whereas it is further observed by the learned Sessions Court that the charge sheet papers show statement of witnesses who have seen the present applicant at the scene of the crime at around 11:00 and 12:00 pm at night whereas the applicant was also seen talking with the drivers of tankers which had been used to transport the stolen crude oil. According to the witnes the applicant had stopped coming to the hotel of the said witness after the complaint had been filed. Learned Revisional Court has also observed from the material including panchnama if prima facie appears that conspiracy was hatched at the house of the present applicant.

3. The said order passed by the Revisional Court is challenged before this Court by way of the present application as observed hereinabove. Learned Advocate Shri Majmudar has relied upon a document in the nature of an affidavit by the applicant himself to submit that the applicant was not involved in the offence and whereas in fact he had informed the concerned authority about the offence being committed by some other person and the applicant having been threatened by the actual accused. The document relied upon by the applicant, is an affidavit dated 28.05.2008, which is admittedly prepared after registering of the FIR on 27.05.2008.

R/SCR.A/8311/2018 ORDER DATED: 30/06/2021

4. The application preferred by the applicant before the learned Magistrate was under Section 239 of the Code of Criminal Procedure. Section 239 reads as under :

Section 239 when accused shall be discharged if, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record the reasons for doing so".

5. From the plain reading of the Section it becomes apparent that the learned Magistrate is required to consider the police report and the documents sent with it under Section 173 and whereas it is not the case of the present applicant before this Court that the document relied upon by the applicant being the affidavit prepared by him on a stamp paper dated 28.05.2008 is either the part of the charge sheet or the documents placed before the Magistrate. Thus, under the circumstances, the learned Magistrate or even the Revisional Court could not have taken any cognisance of the said document.

6. The Supreme Court in the case of Union of India Vs Prafulla Kumar Samal and Anr reported in (1979) 3 SCC 4 as well as in the case of Sajjan Kumar Central

R/SCR.A/8311/2018 ORDER DATED: 30/06/2021

Bureau of Investigation (2010) 9 SCC 368 has laid down the broad ambit of exercise of jurisdiction by Magistrate while considering an application for discharge. Having perused the orders passed by the learned Magistrate as well as the Revisional Court, considering the same in the view point of the judgment of the Supreme Court referred hereinabove, this Court is of the considered opinion that the learned Magistrate as well as the Sessions Court have not committed any error which requires interference of this court in this application.

7. Furthermore as stated hereinabove this Court is of the prima facie opinion that this petition having been kept pending for around three years and at the same time the trial having not commenced for these three years, prima facie this pendency of this petition itself is an abuse of process of law and, thus, on merits as well as on the ground of pendency of this petition being an abuse of process of law, this Court considers it appropriate to dismiss this petition at this stage.

8. Considering the fact that the criminal complaint lodged in the year 2008 and charge sheet has also been filed by the Investigating Officer in the month of October 2008, the learned Magistrate concerned is directed to forthwith take up the trial in the present case and to decide it as expeditiously as possible but not later than 31 st July 2021

9. With the above observations and directions, this petition is disposed of as having rejected.

(NIKHIL S. KARIEL,J) MARY VADAKKAN