Rajeshbhai Govindbhai Prajapati vs State Of Gujarat
2025 Latest Caselaw 5187 Guj

Gujarat High Court

Rajeshbhai Govindbhai Prajapati vs State Of Gujarat on 26 June, 2025

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                             R/SCR.A/8561/2019                                  ORDER DATED: 26/06/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 8561 of 2019

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                                               RAJESHBHAI GOVINDBHAI PRAJAPATI
                                                            Versus
                                                      STATE OF GUJARAT
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                       Appearance:
                       MR ASIM PANDYA, SR. ADVOATE WITH MR GAURAV VYAS(9855) for the
                       Applicant(s) No. 1
                       MR SHYAM M SHAH(11348) for the Applicant(s) No. 1
                       MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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                          CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                            Date : 26/06/2025

                                                             ORAL ORDER

1. Instant petition is filed claiming following reliefs :-

"(a) This Hon'ble Court may be pleased to issue appropriate order, direction or writ to quash and set aside the impugned order dated 16/07/2019 passed by 11th Additional Sessions Judge, Vadodara in Criminal Revision Application No.43 of 2019 at Annexure P1.

(b) Pending admission and final disposal of the present petition, this Hon'ble Court may be pleased to stay the implementation, execution and operation of impugned order dated 16/07/2019 passed by 11th Additional Sessions Judge, Vadodara in Criminal Revision Application No.43 of 2019 at Annexure P1.

(c) Ad-interim releif in terms of clause (b) may kindly be granted."

2. Facts of the case are as under :-

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2.1. The Criminal Case No.39730 of 2004 is going on against accused Hitendrabhai Dinubhai Amin in the court of Additional Chief Judicial Magistrate and 14 Additional Senior Civil Judge, Vadodara. In the said proceedings suddenly on 16/12/2018 the Assistant Public Prosecutor gave an application purported to be under Section 319 of the Code of Criminal Procedure and prayed that the petitioner should be joined as accused in the trial. On the aforesaid application, the learned Magistrate issued a notice to the proposed accused on 6/12/2018 however, the same was not duly served upon the petitioner. The service of the notice was not affected in accordance with the provisions of the Code of Criminal Procedure, 1973. The service was effected on the servant/employee of the petitioner and not at the residence but at the place of business contrary to the provisions of Sections 62 and 64 of Cr.P.C. The petitioner was not informed about the requirement of his presence by his servant. The petitioner, therefore, could not remain present on the day when the application of Assistant Public Prosecutor Ex. 25 was heard.

Thus in the absence of a proper defense, the learned Magistrate allowed the application Ex. 25 and the petitioner was joined as accused. The petitioner filed Criminal Revision Application No.43 of 2019 before the learned Sessions Court, Vadodara against the order of learned Trial Court joining present petitioner as accused, which came to be rejected. Hence, present petition.

3. Heard learned Senior Advocate Mr.Asim Pandya for the applicant and learned APP Mr.Pandya for the respondent - State.

4. In essence, learned PP who is in-charge of prosecution of Criminal Case No.39730 of 2004 preferred application Exh.25

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before learned Trial Court under section 319 of Cr.P.C. to summon the petitioner as additional accused on the ground that since Rajesh Travels has not paid service tax, therefore, there is prima facie case found against him. In cursory order which runs in 7 to 8 lines, learned Trial Court has exercised power under section 319 of Cr.P.C. and summoned the petitioner as additional accused in the offence without hearing the petitioner. The petitioner carried the order of learned Trial Court before learned Revisional Court in Criminal Revision Application No.43 of 2019 but to utter surprise to this Court, learned Revisional Court appreciating the reasons assigned by learned Trial Court confirmed the order passed by learned Trial Court and dismissed the Revision Application.

5. Noticeably, learned Trial Court passed order below Exh.25 without hearing the petitioner and though the issue has been travelled to learned Revisional Court, it has not been addressed properly by learned Sessions Court.

6. Degree of satisfaction require to exercise power under section 319 of Cr.P.C. is far more settled by catena of decisions, it requires evidence before the learned Trial Court of such nature that it goes unrebutted, then it result into conviction of person who is sought to be summoned. Mere evidence is insufficient to exercise extra-ordinary power. Decree of satisfaction is much stricter, considering that it is discretionary and extra-ordinary power and it is to be required to be exercised when evidence is strong and reliable and mere probabilities in the evidence is insufficient decree of evidence to summon to additional accused.

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7. In the case of Hardeep Singh v/s. State of Punjab [(2014) 3 SCC 92], the Hon'ble Apex Court after referring earlier judgments held as under :-

"94. In Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094, a four-Judge Bench of this Court was concerned with the meaning of the word "appear". The Court held that the appropriate meaning of the word "appears" is "seems". It imports a lesser degree of probability than proof. In Ram Singh v. Ram Niwas, (2009) 14 SCC 25, a two-Judge Bench of this Court was again required to examine the importance of the word "appear" as appearing in the section. The Court held that for the fulfilment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as the accused in the case.

95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter...

105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court,

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not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity."

8. Recently, Hon'ble Apex Court in the case of Shankar and Ors. V/s. State of Uttar Pradesh [2024 (0) AIR (SC) 3085] reiterated the same principle after referring the case of Hardeep Singh (supra).

9. If we examine reasons assigned by learned Trial Court to summon additional accused, it appears that on probabilities it was believed by learned Trial Court that the petitioner who is owner of Rajesh Travels has not paid service tax, prima facie, he is involved in the commission of offence. It is also questioned by learned Trial Court as to why IO has not filed charge-sheet or summary report. Upon such circumstances, learned Trial Court allowed the application to summon the petitioner as additional accused. Order impugned appears to be cryptic and reason-less and not befitting to standard. Learned Revisional Court who is expected to find out error much less error of understanding law, did not notice very circumstances and necessary ingredients to be satisfied while issuing summons to the additional accused.

10. In nutshell, order passed by learned Trial Court and confirmed by learned Revisional Court is erroneous and against settled principle of law and calling this Court to exercise supervisory jurisdiction under Article 227 of the Constitution of India.

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11. In view of above, the petition is allowed. Order dated 12.02.2019 passed by learned Trial Court below Exh.25 in Criminal Case No.39730 of 2004 and confirmed by learned Revisional Court vide order dated 16.07.2019 in Criminal Revision Application No.43 of 2019 are hereby quashed and set aside. Since application Exh.25 in Criminal Case No.39730 of 2004 was decided without hearing the petitioner, same is restored to its original proceedings for fresh consideration. On the next date of hearing, the petitioner shall remain present before the learned Trial Court for hearing on application Exh.25.

(J. C. DOSHI,J) SATISH