Gujarat High Court
State Of Gujarat vs Ajaybhai Champaklal Champaneri on 5 May, 2022
Bench: B.N. Karia
R/CR.RA/480/2022 ORDER DATED: 05/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 480 of 2022
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STATE OF GUJARAT
Versus
AJAYBHAI CHAMPAKLAL CHAMPANERI
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Appearance:
MR HARDIK SONI, APP for the Applicant(s) No. 1
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 05/05/2022
ORAL ORDER
By filing present application under Section 397 read with
Section 401 of the Code of Criminal Procedure, applicant-State
has requested to quash and set aside the order dated
23.07.2021 in Sessions Case No. 26 of 2021 by learned 5 th
Additional District Judge, Bhavnagar and stay the
implementation of the said order till hearing and final disposal
of the present application.
Heard learned APP for the applicant-State.
It was submitted by learned APP for the applicant-State
that the learned Trial Court ought to have considered that this
is not a solitary incident where the name of the respondent
accused were reveal as a purchaser of the stolen article. In
other offences also the respondent accused was charge sheeted
as purchaser of the stolen article. Thus, the subsequent
R/CR.RA/480/2022 ORDER DATED: 05/05/2022
insertion of Section 413 and 120(B) of Indian Penal Code are
just and proper and respondent did not deserve any discharge.
The offence punishable under section 413 is the serious in
nature and it could be punishable up to the life imprisonment.
The section 413 of Indian Penal Code speaks that "Whoever
habitually receives or deals in property which he knows or has
reason to believe to be stolen property shall be punished with
1[imprisonment for life] or with imprisonment of either
description for a term which may extend to ten years, and shall
also be liable to fine". That, it is mandatory to maintain the
records of purchase and sale of the Gold & Silver ornaments,
the respondent had admitted that he had purchase the gold
from the co-accused namely Shaileshbhai Rasikbhai
Dhandhukiya, there were no entry or other account related
record were produced by the responded accused along with
the discharge application to show the bonafide business
transaction. Every gold smith are duty bound to maintain
purchase and sells records. In absence any statutory records,
there can be a very strong suspicious about the knowledge on
the part of respondent accused in purchasing the silver and
Gold biscuits even after knowing that there are no sufficient
documents of ownership of said objects. It was requested to
quash and set aside the order dated 23.07.2021 in Sessions
Case No. 26 of 2021 by learned 5th Additional District Judge,
R/CR.RA/480/2022 ORDER DATED: 05/05/2022
Bhavnagar.
After hearing learned APP for the applicant-State,
impugned judgment and order passed by the trial court, it
appears that as per the case of the prosecution, accused nos. 1
to 4 had committed theft by house braking between sunset to
sunrise and accused nos. 5 to 6 were alleged that they received
stolen property knowing it to be stolen and they are habitual
offender. In the beginning, the offence was registered against
unknown persons. Thereafter, during the investigation, names
of the accused nos. 1 to 4 were disclosed and they were found
with stolen articles. As per the case of the prosecution, accused
no.5 had received such stolen ornaments etc., from accused
no.4 and got it converted into gold biscuit (dhaliyo). It was
further alleged by the prosecution, accused no.5 had given that
gold biscuit to accused no.6-respondent no.1 herein. Further it
appears that no recovery or discovery was made from the
accused no.6. Further it transpires that accused nos. 5 and 6
are goldsmiths by occupation. There is nothing on record to
show that the accused no.6-respondent no.1 herein was
having any mens rea or knowledge about the gold smith. From
the report submitted under Section 173 of the Code of
Criminal Procedure, there is no evidence produced by the
prosecution against the accused no.6-respondent no.1 herein
would suggest the involvement of the accused no.6-respondent
R/CR.RA/480/2022 ORDER DATED: 05/05/2022
no.1 herein in the crime. Further it appears that accused no.5
had disclosed the name of accused no.6-respondent no.1
herein that he had received the biscuit made from stolen from
accused no.5. Except this, no incriminated statement of co-
accused, nothing was brought on record against the accused
no.6-respondent no.1 herein.
The provisions of Section 24 to 26 of the Evidence Act
clearly restricts to accept such confession made to the court to
have been made or cause by any inducement, threat or promise
having reference to the charge against the accused persons.
Section 25 of the Evidence Act also provides that no confession
made to the Police shall be proved as against the persons
accused in the offence. Section 26 of the Evidence Act provides
that no confession made by any person while he is in custody
of the Police officer unless it is made in the immediate presence
of a Magistrate shall be proved as against such person.
Trial Court has discussed the judgment of this Court as
well Hon'ble Supreme Court of India reported in (2012)13
SCC 614 in para 10.
Further the applicant was arrested on the basis of the
statement of the co accused and nothing is produced on record
by the prosecution to involve him in the offence. That, he is
connected with the crime. Statement of the co-accused or
admission of the co-accused cannot be proved in evidence
R/CR.RA/480/2022 ORDER DATED: 05/05/2022
against the maker of it and it cannot be sole base to convict any
person.
Thus, order of the trial Court cannot be said to be illegal
and perverse, and therefore, present application preferred by
the applicant-State requires dismissal without issuing any
notice to the respondents, and accordingly, present application
stands rejected.
(B.N. KARIA, J)
K. S. DARJI
