Gujarat High Court
Yogesh @ Ishwar Damjibhai Motivaras vs State Of Gujarat on 7 August, 2025
NEUTRAL CITATION
R/SCR.A/3183/2018 ORDER DATED: 07/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3183 of 2018
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YOGESH @ ISHWAR DAMJIBHAI MOTIVARAS & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MAHESH POOJARA for MR ASHISH M DAGLI(2203) for the petitioners
MR HS TOLIA, SR. ADVOCATE with MS PREEMA D SAFI and MR PARTH
S TOLIA(5617) for the Respondent(s) No. 2
MR CHINTAN DAVE, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/08/2025
ORAL ORDER
1. By way of this petition, the petitioners prayed for
quashing and setting aside order dated 28.3.2018 passed by
the learned 4th Ad hoc Addl. Sessions Judge, Gir Somnath at
Veraval below Exh.3 in Sessions Case No.6 of 2018.
2. Brief facts of the case are as under:-
2.1 An FIR came to be lodged by one Dharmesh S/o Ramji
Damji Chorvadi at Veraval city police station as CR No.I-53 of
2016 against in all 6 accused who are petitioners in captioned
petition on 3.6.2016 for incident alleged to have been
occurred on 2.6.2016 for offence under sec. 143,147, 148,
149, 323, 324, 452, 504,427 of IPC as well as under Sec. 135
of the G.P. Act.
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2.2 That pursuant to the registration of the FIR the
petitioner came to be arrested and enlarged on bail.
2.3 That pursuant to the conclusion of the investigation, the
investigating agency submitted charge sheet on 26.10.2016.
2.4 That against the complainant and others in the present
case one of the petitioner herein namely Mahesh Ishwarbhai
Motivaras has also lodged an FIR with very same Veraval City
Police station as CR No.I-54 of 2016;the FIR came to be
registered on 3.6.2016 for offence stated to have been
occurred on 2.6.2016 FIR came tp be registered for offence
under sec.143,147, 148,149, 323, 324, 326,307, 504, 506(2)
and 135 of the G.P.Act.
2.5 That pursuant to the registration of the FIR being CR
No.1-54 of 2016 investigation started and on conclusion of the
investigation charge sheet came to be submitted by
Investigating officer on 25.10.2016.
2.6 As the case against the petitioner is triable by learned
JFMC the same is numbered as Criminal case No.1347 of
2016 before the learned Chief Judicial Magistrate, Veraval
ands case against the present complainant and others is
triable by learned sessions Judge, the same is numbered as
sessions Case No.1-5 of 2017 and the same is pending before
the learned 4th (Adhoc) Addl.Sessions Judge, Gir Somnath at
Veraval.
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2.7 In Criminal Case No.1347 of 2016 pending against the
petitioners before the learned Chief Judicial Magistrate,
Veraval, on 26.7.2017 an affidavit came to be filed by one
Vijayaben Damjibhai Chorvadi appears to be mother of
present complainant namely Dharmeshbhai mainly making
prayer to add section 326, 307 of IPC. However, same is not
pressed on 27.7.2016 by Vijyaben.
2.8 That another affidavit was submitted by Vijyaben, where
the grant of bail to the accused was opposed.
2.9 That below exhi. 4 in Criminal case No.1347 of 2016 on
24.5.2017, the charge came to be framed against the
petitioners herein by court below.
2.10 That since two cross cases came to be registered
between two groups one is triable by learned JMFC another is
triable by learned Sessions Judge, it appears that criminal
case registered against the present petitioners herein being
Criminal case No.1347 of 2016 earlier pending before learned
Chief Judicial Magistrate came to be committed to the court of
sessions and numbered as sessions Case No.6 of 2018 and the
same is pending before the learned 4th (Adhoc) Addl.Sessions
Judge, Gir below exhi.3 the Somnath at Veraval.
2.11 That complainant herein preferred an application below
under sec.216 of Cr.P.C mainly with prayer to add sec.326,
307 of IPC in a charge which earlier framed against the
petitioners herein, which came to be allowed by order dated
28.3.2018.
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2.12 Hence, present petition.
3. Heard learned advocates for the respective parties.
4. Essentially, before this Court, order passed below Exh.3
in Sessions Case No.6 of 2018 has been challenged. What
could be further noticed that charge sheet filed for the
offences punishable u/s 143, 147, 148, 149, 323, 324, 452,
504, 427 of the IPC r/w section 135 of the G.P.Act has been
registered as Criminal Case No.1347 of 2016 before the
learned trial Court. However, in a cross complaint, charge of
offence punishable u/s 307 of the IPC was registered along
with other offence. The trial of the offence u/s 307 of the IPC
was permitted to be tried exclusively by the Sessions Court
and therefore, in a cross complaint, Sessions Case No.5 of
2017 was registered upon the charge sheet was committed.
The charge sheet from the cross complaint is called to trial
before the learned Sessions Court. An application was moved
at Exh.3 by the complainant that though there is element of
offence u/s 307 of the IPC, which is supported by the
certificate of the Medical Officer, the investigating officer has
not filed charge sheet for the offence punishable u/s 307 of
the IPC. Hence, it was prayed to frame charge of said offence.
After hearing learned advocates for both the sides, application
Exh.3 was allowed by the learned Sessions Court and charge
framed vide Exh.4 by the learned JMFC was recalled and it
was decided to frame fresh charge against the accused.
5. Learned advocate Mr. Mahesh Poojara for the
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petitioners would submit that the Court cannot come to the
conclusion that the charge framed by the learned trial Court
at Exh.4 is insufficient materially on the basis of police
papers. He would further submit that in the matter, the Court
can alter charge u/s 216 of the Code of Criminal Procedure,
1973 (in short "the Code") provided that there is sufficient
evidence available to the Court to frame fresh and new charge
in the offence. He would further submit that the complainant
has no locus standi to file application to alter the charge and it
is only the prerogative of the learned Court below to alter the
charge. He referred to the judgment of the Hon'ble Apex
Court in case of P. Kartikalakshmi Vs. Ganesh and another,
2014 CJ SC 2118.
5.1 Upon above submission, learned advocate for the
petitioners prays to allow the petition and to quash and set
aside the impugned order.
6. Per contra, learned Senior counsel Mr. Tolia appearing
with learned advocates Ms. Preema Safi and Mr. Parth Tolia
for the private respondent having referred to the judgment of
the Hon'ble Apex Court in case of Anant Prakash Sinha @
Anant Sinha Versus State Of Haryana, 2016(6) SCC 105, more
particularly, para 22, would submit that the application may
be moved by the complainant, but the Court having recorded
subjective satisfaction passed the impugned order and
therefore, it cannot be said that the order impugned in the
petition is in teeth of section 216 of the Code or passed on
application of the complainant. He would further submit that
there are ample evidence by way of medical certificate
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brought on record, but the charge sheet filed under the
pressure of local headstrong did not record the offence u/s
307 of the IPC. He would further submit that the victim was
hospitalized on 3.6.2016, medical certificate issued by the
Gokul Super-specialty Hospital, Rajkot on 21.6.2016 being a
part of charge sheet reflects that the victim of offence has
received serious injury of brain hemorrhage and which prima
facie indicates that there is offence u/s 326 as well as 307 of
the IPC is made out.
6.1 In the aforesaid circumstances, learned Senior counsel
Mr. Tolia would submit that the learned Sessions Court has
rightly passed the impugned order and no reason has been
made out to interfere with the impugned order.
6.2 Upon such submissions, learned Senior counsel Mr.
Tolia prays to dismiss the petition.
7. Learned APP supports the impugned order and submits
to dismiss the petition.
8. On perusal of the impugned order, it appears that
perhaps the petition is filed under misnomer. Firstly, the
order impugned is revisable order and the petitioner if really
aggrieved by such order, has to file revision u/s 397 r/w
section 401 of the Code instead of filing the petition under
supervisory jurisdiction of Article 227 of the Constitution of
India. Though, there is no total bar in challenging the
impugned order under Article 227 of the Constitution of India,
yet the availability of alternative efficacious remedy put the
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case to near total bar. Until a compelling circumstance exists
to bypass the alternative efficacious remedy available under
the law, the petitioner cannot challenge the order by filing
petition under Article 227 of the Constitution of India.
9. Be that as it may, the order impugned does not exhibit
framing of any charge against the petitioners. The order
impugned has recalled the charge framed by the learned trial
Court and decided to frame fresh charge against the
petitioners accused. The operative portion of the impugned
order reads as under (Translated into English from vernacular
language):-
"The application filed by the complainant at Exh.3 is
hereby allowed. The charge framed by the learned
trial Court below Exh.4 stands modified to the extent
that fresh charge is ordered to be framed against
accused of Sessions Case No.6 of 2018."
10. Needless to state that in view of sections 226 and 227 of
the Code, before framing of charge, hearing needs to be
afforded to accused. Prosecution has to open the case. The
law is well settled by this Court in case of Manishaben
Gajjugiri Goswami vs State Of Gujarat rendered in Criminal
Revision Application No.245 of 2021. Therefore, present
petition appears to be a premature petition.
11. It was specifically pointed out to learned advocate Mr.
Poojara that the petition is premature. Yet the proceeding of
framing the charge has not commenced, no hearing has
commenced and still, learned advocate Mr. Poojara, under the
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instructions, insisted for hearing and to allow the petition.,
which is nothing, but sheer abuse of process of law and total
waste of precious time of the Court. More particularly, when
no adverse order operating against the petitioners, there
cannot be any subsisting challenge to the impugned order.
12. Learned advocate Mr. Poojara having referred to
reasoning part of the impugned order, would submit that the
learned Sessions Court has made up its mind to frame charge
u/s 307 of the IPC along with residual section depicting
offence. Thus, it is explicitly clear that the learned Sessions
Court's next step is to frame charge u/s 307 of the IPC against
the petitioners. The contention lacks foundational legality.
The order impugned in the petition essentially recall charge
earlier framed. The learned Sessions Court while passing
impugned order recorded subjective satisfaction of grievous
hurt on vital part of the body of the victim and thought off that
offence u/s 307 of the IPC is attracted, but yet, the learned
Sessions Court has not framed charges.
13. In the aforesaid circumstances, without dealing further
merits of the case, since the petition is premature and not
maintainable without exhausting alternative efficacious
remedy, it stands dismissed. Notice is discharged. Interim
relief granted earlier stands vacated.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
