Jayantilal Chunilal Patel vs State Of Gujarat
2022 Latest Caselaw 9768 Guj

     R/CR.RA/477/2020                            JUDGMENT DATED: 02/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


         R/CRIMINAL REVISION APPLICATION NO. 477 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SAMIR J. DAVE

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

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        JAYANTILAL CHUNILAL PATEL
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR ND SONGARA (2198) for the Applicant(s) No. 1
DELETED for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                             Date : 02/12/2022

                             ORAL JUDGMENT

1. By way of this revision filed under Section 397 read with

Section 401 of the Code of Criminal Procedure, the applicant-

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original accused has prayed to modify the judgment and order

dated 30.06.2018 passed by the learned 5th Additional Sessions

Judge, Vadodara in Special (ACB) No.16 of 2011 by converting

the acquittal granted to the applicant "by giving benefit of

doubt" into an "acquittal simplicitor".

2. The facts in brief, as emerging from the record, are as

under;

The applicant herein was serving as Deputy Engineer with

the Gujarat State Electricity Corporation at Kutch Lignite

Thermal Power Station, Panandhro, Kutch at the relevant time.

It is alleged that on 15.03.2007, between 1300 hrs. - 1315

hrs., the applicant went to the Office of Vanrajbhai Maganbhai

Chauhan, the original complainant, who was serving as Deputy

Superintendent of Police, Vigiliance Department, Gujarat Vikas

Nigam Ltd. at Vadodara at the relevant time. It is further

alleged that the applicant, thereafter, informed the complainant

that he had come to meet him in pursuance of the

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conversation which they had on the mobile phone of one

Rajubhai Parmar. It is further alleged that the applicant

thereafter took out of a white colored cover from his hand-

purse and kept it on the table in front of the complainant. On

inquiry about the cover, the applicant informed him that the

cover contained cash and it was meant for the purpose of

expeditious closure of the inquiry against I. M. Patel,

Superintendent Engineer so that the said Officer could get

promotion to the next post. However, the complainant pushed

the cover towards the applicant and reprimanded him for his

act. He also informed his superior about the above act of the

applicant. Thereafter, a primary inquiry was carried out and

cash amount of Rs.4,000/- was recovered from the applicant in

the presence of panchas.

2.1 It is further alleged that on 14.03.2008 the applicant

made a call on the mobile phone of A.S.I. - Rajubhai Parmar

and asked him to hand-over his phone to the complainant. The

complainant again reprimanded the applicant and informed

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him that he would look into the cases on priority basis only.

Pursuant thereto, a complaint under Section 12 of the

Prevention of Corruption Act, 1988 was filed against the

applicant and ultimately, trial was initiated.

2.2 During the course of trial, the prosecution had examined

as many as 25 witnesses and had also placed reliance upon

several documentary evidence. At the end of trial, the Court

below came to the conclusion that the prosecution has failed

to prove the charge under Section 12 of the Act against the

applicant and consequently, acquitted the applicant of the

charge levelled against him. However, in the operative portion

of the impugned judgment and order dated 30.06.2018, the

Court below held that the applicant is acquitted of the charge

under Section 12 of the Act by granting him the benefit of

doubt. Being aggrieved by the observation made by the Court

below in the impugned judgment and order whereby, the

applicant has not been awarded "acquittal simplicitor" but has

been "acquitted by granting benefit of doubt", the applicant

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has preferred the present revision application.

3. Mr. N.D. Songara, learned advocate for the applicant,

submitted that the applicant is a Government Servant and

therefore, the impugned judgment and order of acquittal

granted by giving "benefit of doubt" has affected his service

career. He submitted that the Employer of the applicant has

refused to grant him consequential benefits on acquittal for the

reason that the applicant has been acquitted by the Court

below by extending "benefit of doubt" and that the acquittal

is not an "acquittal simplicitor".

3.1 Learned advocate Mr. Songara for the applicant took the

Court through the reasonings given by the Court below in the

impugned judgment and order to submit that in this case, the

Court below has come to the specific conclusion that there is

no evidence against the applicant. It is a matter of fact that

the complaint in this case was filed after a period of about 14

months. It was contended that when the Court below, after

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careful consideration of the oral as as well as documentary

evidence adduced on record, came to the conclusion that the

prosecution has failed to prove the charge against the

applicant, then it ought to have passed an order of acquittal

simplicitor and not an order of acquittal by granting benefit of

doubt. He submitted that the term "acquittal" in its simple

form is relevant under the service law jurisprudence. In a

given case, the criminal Court may say that there is no

evidence against the accused; but, even in such cases, the

criminal Court should not employ the expression - "not proved

beyond reasonable doubt" or "acquitted by giving benefit of

doubt" as it may jeopardize the civil rights of the accused. It

was, accordingly, urged to modify the impugned judgment and

order by converting the acquittal granted to the applicant into

acquittal simplicitor.

3.2 Learned advocate Mr. Songara submitted that the

applicant retired from service on attaining the age of

superannuation on 30.06.2022. However, on account of the

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observation made by the Court below that the applicant has

been acquitted by granting him benefit of doubt, the Employer

of the applicant has refused to grant him consequential benefits

on his acquittal. It was, therefore, urged that the acquittal by

granting benefit of doubt may be converted into acquittal

simplicitor so that the applicant could get benefits under the

service law jurisprudence.

4. Ms. Monali Bhatt, learned APP, drew attention of the

Court to the reasonings recorded by the Court below in the

impugned judgment and order. She pointed out that the Court

below acquitted the applicant of the charge for want of

evidence and it was not that the applicant was totally innocent

or that he was falsely implicated in the alleged crime. For lack

of evidence against the applicant, the Court below has

acquitted him of the charge and therefore, it was observed that

the applicant is acquitted by granting him the benefit of doubt.

In criminal law jurisprudence, an accused is convicted only if

the charge levelled against him is established beyond

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reasonable doubt. In a given case, there may be evidence

against the accused but such evidence might not be sufficient

to hold him guilty for the charge and in such case, an order

of acquittal simplicitor may not be passed against the accused

and the criminal Court may acquit him by granting him the

benefit of doubt, which has been done in the present case. It

was, accordingly, urged that no illegality or impropriety has

been committed by the Court below while passing the

impugned judgment and order and has thereby, prayed to

dismiss the present revision application.

5. Heard learned advocates on both the sides. It is a matter

of fact that the original complainant was holding the post of

Deputy Superintendent of Police at the relevant time and was,

therefore, well aware about the legal procedures. He has been

examined as PW-1 at Exhibit-21. However, from his evidence,

it is established that he was not aware about the contents of

the cover, which was allegedly placed by the applicant before

him. No money was recovered from the applicant while the

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applicant was in the chamber of the complainant or when he

was taken to the chamber of the superior officer - Vipulvijay

Srilalit Vijoysingh (PW-10). In fact, the alleged money appears

to be recovered by another police officer named

Jagdishchandra Manilal Shrimali (PW-8) during which time the

complainant does not appear to be present at the place.

6. It is pertinent to note that in his deposition before the

Court below, the complainant has categorically admitted that

he was aware of the fact that the offence alleged against the

applicant was cognizable in nature. However, no complaint

was filed in connection with the alleged offence said to have

been committed on 15.03.2007. The complaint (Exhibit-22)

came to be filed only on 01.05.2008, i.e. after a period of

fourteen months. Further, there is also variance in the

testimony of the complainant as regards the place where the

panchnama regarding seizure of bribe money was prepared.

7. Having carefully gone through the material on record, it

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appears that none of the prosecution witnesses have led any

evidence to show that the applicant herein was involved in the

commission of the alleged crime. In fact, it appears from the

record of the case that the alleged bribe had been paid for and

on behalf of one I. M. Patel, Superintendent Engineer, for the

purpose of getting the departmental inquiry initiated against

the said person concluded on an expeditious basis. It also

appears from the record that on inquiry made by the superior

police officer - Vipulvijay Srilalit Vijoysingh, in the presence

of the complainant, the applicant had informed that there was

no request or recommendation from his side and that he had

come for the purpose of inquiry only. Considering the entirety

of facts and the evidence on record, this Court is of the view

that the Court below was justified in acquitting the applicant

of the charge under Section 12 of the Act.

8. In the aforesaid background, this Court is required to

consider the implication of the words "benefit of doubt" while

passing a judgment and order of acquittal. There is no quarrel

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on the issue that under criminal law jurisprudence, the

criminal Courts can add the words "benefit of doubt" or

"beyond reasonable doubt" while acquitting an accused.

However, the said words have to be used carefully in light of

the facts and circumstances of each case. When the words

"benefit of doubt" are used while acquitting an accused, it

gives an impression that there was "some" evidence against

the accused. There is a vast difference between an "acquittal"

in simple terms and an acquittal by extending the "benefit of

doubt". One could get an idea about the difference between

the two by referring to the provisions of Sections 232 and 235

of the Code of Criminal Procedure. For ready reference, the

said provisions are reproduced hereunder;

"232. Acquittal-. If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.

235. Judgment of acquittal or conviction-.

(1) After hearing arguments and points of law (if any),

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the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law."

(Emphasis supplied)

8.1 According to Section 232 of Cr.P.C., if after taking the

evidence for the prosecution, examining the accused and

hearing the prosecution and the defence on the point, the

Court considers that there is no evidence that the accused

committed the offence, then the Court shall record an order of

acquittal. Whereas, according to Section 235 of Cr.P.C., after

hearing the arguments, the Court may give a judgment of

acquittal or a judgment of conviction; and in case of an

accused against whom there is some evidence in support of the

charge but such evidence is either not sufficient to hold him

guilty or there is reasonable doubt about such evidence, then

the Court may acquit the accused either by saying that the

charge against the accused has not been proved beyond

reasonable doubt or by saying that the accused is acquitted by

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giving benefit of doubt. Thus, if an accused is acquitted under

Section 235 of Cr.P.C., the inference is that there was evidence

against him but he has been acquitted either because the

charges were not proved beyond reasonable doubt or that he

was extended the benefit of certain doubts in the case of the

prosecution. Thus, in a case where there is no evidence at all

against the accused and the Court, instead of acquitting him

under Section 232 of Cr.P.C., acquits him under Section 235 of

Cr.P.C., then though there is an acquittal favourable to him,

the accused would still be aggrieved since the acquittal under

Section 235 of Cr.P.C. would have different civil consequences

for him.

9. Considering the facts of the case, it would be beneficial

to refer to a judgment rendered by the Madras High Court in

the case of E. Kalivarathan v. The State, Rep. by the Sub-

Inspector of Police passed in Clr. R.C. No.684 of 2014 dated

23.12.2014, Paragraph-49 of the said judgment reads thus:

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"49. Now comes to the question as to whether the criminal Court can use the expression "honorable acquittal" while acquitting an accused. This question is no more res integra in view of the judgment of the Hon'ble Supreme Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal, (1994) 1 SCC 541 wherein, the Supreme Court has held as follows:-

"The expression "honorable acquittal" "acquitted of blame" "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honorably acquitted". When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honorably acquitted."

10. In this case, it is the say of the applicant that there was

not an iota of evidence before the Court below to hold him

guilty for the alleged offence and therefore, the Court below

ought to have passed an order of "acquittal simplicitor" and

not an order of "acquittal by extending benefit of doubt". The

non-passing of an order of acquittal simplicitor in the facts and

circumstances of the case has jeopardized the civil rights of the

applicant inasmuch as his Employer has refused to grant him

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consequential benefits under the service law in pursuance of

his acquittal. This Court is not oblivious of the fact that the

criminal Court has the freedom to use expressions like "benefit

of doubt" or "beyond reasonable doubt" while passing an

order of acquittal, but such expressions have to be used within

the settled legal framework and cannot be used recklessly or

carelessly. The Court below has examined the oral as well as

documentary evidence on record in detail and has come to the

conclusion that there is no evidence against the applicant to

hold him guilty for the offence punishable under Section 12 of

the Act. In the opinion of this Court, once the Court below

had come to the conclusion that there is no evidence against

the applicant to connect him with the alleged crime, then it

ought to have passed an order of acquittal simplicitor and not

an order of acquittal by granting benefit of doubt. Hence, the

said observation made by the Court below deserves to be

modified suitably.

11. For the foregoing reasons, the revision application is

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allowed. The impugned judgment and order dated 30.06.2018

passed by the learned 5th Additional Sessions Judge, Vadodara

in Special (ACB) No.16 of 2011 by which the applicant came

to be "acquitted by granting benefit of doubt" is converted

into an order of "acquittal simplicitor". Rest of the order

remains unaltered. The application stands disposed of

accordingly. Rule is made absolute.

(SAMIR J. DAVE, J)

PRAVIN KARUNAN