Thakor Gabhusinh @ Gabhuji Galuji ... vs State Of Gujarat
2022 Latest Caselaw 8875 Guj

     R/CR.RA/1092/2022                           ORDER DATED: 07/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/CRIMINAL REVISION APPLICATION NO. 1092 of 2022

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              THAKOR GABHUSINH @ GABHUJI GALUJI RAMAJI
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR JIGAR G GADHAVI(5613) for the Applicant(s) No. 1
MR MH BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                           Date : 07/10/2022

                            ORAL ORDER

1. By way of present application, applicant has requested to quash and set aside the order dated 22.07.2022 passed by the learned Special Judge, (ACB), District: Mahesana passed in the application preferred below Exhibit 40 under Section 227 of the Criminal Procedure Code, 1973 seeking discharge of the present applicant from the Criminal Case being Special ACB Case No. 9 of 2017 pending before the Court of Learned Special Judge, (ACB), Mahesana and requested to discharge the present applicant from the Criminal Case being Special (ACB) Case No. 9 of 2017 pending before the Court of Learned Special Judge (ACB), Mahesana.

2. Brief facts of the present case are as under:

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2.1 That, on 01.06 2017 the alleged incident is said to have taken place, wherein, as per the version of the original informant namely Mahendra Narayanbhai Pate whose son (deceased) namely Ketanbhait Mahendrabhi Patel was allegedly kidnapped by one Bharatbhai Manilal Brahmbhatt and five other persons and the said incident was seen by one Patel Arvindbhai Ranchhoddas. It is further alleged that Ketanbhai Mahendrabhai Patel was taken to the store and was beaten and he was handed over to police station, That, after 12 days the FIR came to be registered on 13.06.2017 with Mahesana Taluka Police Station being CR. No. I -- 118 of 2017 for the offences under Sections 302, 365, 323, 364, 397, 342, 116, 330, 331, 143, 147, 149, 120 (b) of the Indian Penal Code, 1860 and under Sections 7 and 12 of the Prevention of Corruption Act, 1947. That, the son of the original informant had died in the Police custody. The Police with a view to save their skin, conducted investigation in a biased manner and the applicant came to be arraigned as accused by way of supplementary charge sheet forwarded to the Sessions Court on 18.04.2018. Whereas, the charge sheet was already filed after completion of investigation and was forwarded to the Sessions Court at: Mahesana on 07.09.2017, wherein, applicant was not shown as accused. The applicant

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therefore, preferred the discharge application below exhibit 40 in Special (ACB) Case No. 9 of 2017 before the Learned Special Judge (ACB), Mahesana seeking discharge from the alleged offences on 12.06.2019. The said application was preferred and the same came to be decided on 22.07.2022 and the Learned (ACB) Judge was pleased to pass the order, whereby, the said application came to be dismissed and that is how the applicant has preferred present application.

3. Heard learned advocate for the applicant.

4. It was submitted by learned advocate for the applicant that the applicant was neither named in the FIR nor was he involved in the alleged offences at all. He cannot be attributed any intention or even knowledge with regard to the alleged act which may constitute the offenceunder Section 302 of Indian Penal Code, 1860. That, the applicant was granted anticipatory bail by this Hon'ble Court by allowing the said application being Criminal Misc. Application No. 4168 of 2018 dated 27.02.2018. That, the learned Judge below has committed a serious error by merely referring to the allegation made against the accused Nos. 1 and 2 and observing that the deceased was beaten by the accused persons including the applicant and has merely referred to the postmortem note of the postmortem conducted twice and making a general

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reference with regard to the injuries on the body of the deceased and observing that it is not determined as to because of which injury the death was caused and that the same cannot be decided at the stage of framing of charge. The Learned Judge has therefore committed an error by rejecting the case of the applicant without considering the material on record and without assigning reasons as to how and what contents of the material on record makes out sufficient ground for proceeding against the applicant. That, even when the concerned Court frames the charge, at that stage the Court has to consider the material and while doing so the Court for the limited purpose sift the evidence and the case of the prosecution is not to be considered as gospel truth. Thus, the Court at the stage of framing of the charge and while considering the discharge application. Since, the learned Judge below has not referred to the material on record in proper perspective and has not dealt with entire charge sheet papers of the case, with reference to the role of the applicant, the present application may be allowed.

5. Learned advocate for the applicant has further submitted that this Hon'ble Court while considering the anticipatory bail application of the applicant being Criminal Misc. Application No. 4168 of 2018, granted the anticipatory bail and has

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considered that the applicant figures in the mob without any weapon in his hand as per the CCTV footage and that the applicant was found giving a slap to the deceased and it is also recorded that the deceased was habitually indulging in threats and was caught hold by main two co-accused and was beaten and then handed over to the police on the same date. This Hon'ble Court had also recorded that the same are prima facie observations made while granting bail to the applicant and that the Trial Court shall not be influenced by the said observations during the Trial. However, the Learned Judge failed to independently consider the material on record which indicates that there is no material to make out the offence of murder against the present applicant. Therefore, the present application may be allowed. In support of his arguments, learned advocate for the applicant has placed reliance on the following citations:

1. (2018) 13 Supreme Court cases 455

2. 2021(0) AIJEL SC 67336

3. Criminal Revision Application No. 516 of 2021 (Hon'ble Gujarat High Court)

4. 2019(2) GLR 1058

5. (2004) 5 SCC 568

6. 1990(0) AIJEL SC 19764

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6. Having heard learned advocates for the respective parties and considering the averments made in the application and conclusion arrived at by the learned trial Court, first of all we have to consider the the grounds of discharge, which have been laid down by the Apex Court in 2001 AAR 394 (SC), Omwati Vs. State (Delhi Administration), holding that the court may discharge accused on following consideration:-

(i) If upon consideration that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No reasons are required to be recorded when the charges are framed against the accused persons.

(ii) Where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage.

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7. Considering the observations made in the impugned order, it appears that the allegation against the present applicant is of beating the deceased that has been captured from the CCTV footage and the alleged incident has been occurred continuously means from the time of kidnapping the deceased to his death.

8. This Court in the case of State of Bihar Vs. Ramesh Singh, reported in AIR 1977 SC 2018 observed as under:-

"4. Under section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under section 227 or section 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by section 227. If, on the other hand, "the Judge is of opinion that there, is ground for presuming. that the accused has committed an offence which-

(b)in exclusively triable by the Court, he shall frame in writing a charge against the accused'-', as provided in section 228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be

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attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end

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in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227.

9. This Court in the case of State of Maharashtra Vs. Som Nath Thapa, reported in AIR 1977 SC 2018 observed as under:-

"24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. When can charge be framed ?

30. In Antulay's case, Bhagwati, CJ., opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According to Shri Jethmalani, a prima facie case even be said to have been made out when the evidence, unless

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rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence".

31. Let us note the meaning of the word "presume". In Black's Law Dictionary it has been defined to mean "to believe or accept upon probable evidence". (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to the contrary is forthcoming" , Stroud's Legal Dictionary has quoted in this context a certain judgement according to which "A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged." (Emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.

32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. What is the effect of lapse of TADA ?

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33. In the written submissions filed on behalf of appellant Moolchand, it has been urged that TADA having lapsed, section 1(4) which saves, inter alia, any investigation instituted before the Act had expired, itself lapsed because of which it is not open to the prosecution to place reliance on this sub-section to continue the proceeding after expiry of TADA.

57. A perusal of the statement made by aforesaid two Inspectors shows that they had made two statements at two points of time. The first of these has been described as "original statement' by Shri Shirodkar in his written note and the second as "further statement". In the original statement, these two Inspectors are said to have told Thapa, on being asked which would be crucial places for laying trap, that the same were Purar Phata and Behan Phata, at which places trap was in fact laid. But then, in the further statement the Inspectors are said to have opined that watch should be kept at Sai-Morba- Goregoan junction, because that was the main exit point for smuggling done at Shrivardhan and Shekhadi. Shri Shirodkar would not like us to rely on what was stated subsequently by these Inspectors, as that was under pressure of investigation undertaken subsequently by the C.B.I. We do not think that the law permits us to find out at this stage as to which of the two versions given by two Inspectors is correct. We have said so because at the stage of framing of charge probative value of the statement cannot be gone into, which would come to be decided at the close of the trial. There is no doubt that if the subsequent statement be correct, Nakabandi was done not at the proper place, as that left Sai- Morba Road free for the smugglers to carry the goods upto Bombay."

10. This Court in the case of State of Maharashtra Vs. Priya Sharan Maharan, reported in AIR 1997 SC 2041 observed as

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under:-

"8. The law on the subject is now well-settled, as pointed out in Niranjan Singh Punjabi vs. Jitendra Bijjaya (1990) 4 SCC 76, that at Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view of finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, 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. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

11. The above quoted paragraphs from the judgment clearly disclose that the High Curt was much influenced by the submission made on behalf of the defence that Kripalu Maharaj is a saintly old man, who has renounced the world, who is engrossed in spiritual activity and who has thousands/millions of disciples all over India and, therefore, he was not likely to indulge in the illegal acts alleged against him. It failed to appreciate that it is not unusual to come across cases where the so-called spiritual heads exploit you girls and women who become their disciples and come under their spell. Moreover, the reasoning of the High Court that it also does not stand to reason that a saintly man who has thousand/millions of disciples all over India would commit sexual intercourse with the praharak of his cult in presence of his disciples

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stands vitiated because of the vice of misreading the statements. The three girls have nowhere stated in their statements that R-2 had sexual intercourse with them in presence of other disciples. The High Court gave too much importance to the conduct of the three victims and the delay in disclosing those illegal acts to their parent and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would depend upon the circumstances in which she is placed. It often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or uncertainties about the reactions of their parents or husbands in case of married girls or women and the adverse consequences which, they apprehend, would follow because of disclosure of such acts. What the three girls had stated in their statements was not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such a long time. What the High Court has failed to appreciate is that while making complaint to the police or giving their statements they were not required to give detailed explanations. As stated earlier, what the Court has failed to appreciate is that while making a complaint to the police or giving their statements they were not required to give detailed explanations. As stated earlier, what the Court has to consider at the stage of framing of the charge is whether the version of the person complaining together with his/her explanation is prima facie believable or not. It was, therefore, not proper for the High Court to seek independent corroboration at that stage and to quash the charge and discharge the accused in absence thereof. It was also improper to describe the version of Sulakshana as false because no extensive injuries were noticed on her person while she was examined by a doctor on the basis of some observations made in Modi's textbook on "Medical Jurisprudence and Toxicology". We do not think it proper to say anything further as,

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in the view that we are taking, the accused will have to face a trial and whatever observations we make now may cause some prejudice to them at the trial. We would only say that the High Court was wholly wrong in discarding the material placed before the Court as false and discharging the accused on the ground."

11. Recently, while citing judgments reported in (2021) 8 SCC 583 (Saranya vs. Bharathi and another) and citing judgment passed in case of Gulam Hassan Baigh vs. Mahammad Maqbool Magrey & Ors., arising out of SLP (Criminal) No.4599 of 2021, decided on 26th July, 2022, by the Larger Bench of the Hon'ble Apex Court, this court in case of Mansiben Mahendrabhai Vyas versus State of Gujarat (Criminal Revision Application No. 626 of 2021), has elaborated the law provisions relating to the discharge application.

12. As every case has its own facts, judgments cited by learned advocate for the applicant are not applied in this case.

13. Thus, considering the aforesaid discussion, it appears that the learned trial court has not committed any error in rejecting the discharge application filed by the present applicant and therefore, the impugned order does not suffer from any illegality, irregularity or impropriety. and the revision is liable to be dismissed and accordingly, stands

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dismissed at the admission stage without issuing notice to the otherside.

(SAMIR J. DAVE,J) K. S. DARJI