The State Of Gujarat vs Jagdishbhai Abhesing Parmar
2025 Latest Caselaw 396 Guj

Gujarat High Court

The State Of Gujarat vs Jagdishbhai Abhesing Parmar on 16 May, 2025

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                             R/CR.A/268/2006                                       ORDER DATED: 16/05/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                               R/CRIMINAL APPEAL NO. 268 of 2006

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                                                    THE STATE OF GUJARAT
                                                             Versus
                                                 JAGDISHBHAI ABHESING PARMAR
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                      Appearance:
                      MR SOAHAM JOSHI, APP for the Appellant(s) No. 1
                      MR DEVARSHI C SHAH(5545) for the Opponent(s)/Respondent(s) No. 1
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                         CORAM:HONOURABLE MR.JUSTICE D.N.RAY

                                                          Date : 16/05/2025

                                                            ORAL ORDER

1. Heard Mr. Soaham Joshi, learned APP for the

Appellant - State and Mr. Devarshi C. Shah, learned

advocate for the Respondent.

2. Feeling aggrieved and dis-satisfied with the

judgment and order of acquittal dtd. 20.10.2005 passed

by learned Special Judge (A.C.B.), Fast Track Court

No.3, Bharuch in Special (A.C.B.) Case No. 2 of 1990

whereby the Respondent(s) accused came to be acquitted

for the offences punishable under Sections 202, 213 and

414 of the Indian Penal Code and under sections 7,

13(1), 13(1)(d)(i) and 13(1)(c) of the Prevention of

Corruption Act, 1988, the Appellant-State has preferred

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this Appeal.

3. The facts of the case are narrated in the impugned

judgment and order of acquittal in great detail. The

same are not disputed by the learned Additional Public

Prosecutor appearing on behalf of the Appellant -State.

Therefore, the same are not repeated herein but merely

relied upon by the parties and this Court.

4. From the evidence on record, it appears that except

from the complainant's own deposition, the complainant

has not been able to corroborate why, inspite of his duty

getting over, he was present at the station at 00:30

hours on 16.11.1988. Apart from the same, the

sanctioning authority has not been examined by the

prosecution. Taking a totality of the circumstances, the

learned Trial Court has taken a view that since the

presence of the complainant himself at the place of the

alleged offence is doubted, coupled with the fact that

whether the sanction is valid or not has not been proved

by the prosecution, sufficient doubts exist and the

prosecution has failed to prove the guilt of the accused

beyond a reasonable degree. In such circumstances, I am

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of the opinion that the finding of the learned trial Court

recorded in paras 13 to 16 of the judgment and order of

acquittal particularly, taking into account, the ratio of

the judgment of the Hon'ble Apex Court in the case of

Ashok Kumar Aggarwal vs. Central Bureau Of Investigation reported in (2014) 14 SCC page 295 is a plausible view. Relevant portion of the aforesaid

judgment in Ashok Kumar Aggarwal (supra) are as

under:

"13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

16. In view of the above, the legal propositions can be summarised as under:

16.1 The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses,

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recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.

16.2 The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

16.3 The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

16.4 The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

16.5 In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."

5. Therefore, on perusal of the above provisions of law,

as declared by the Hon'ble Apex Court, it becomes clear,

particularly, in view of the clear direction at para 16.5

quoted herein above, until and unless the sanctioning

authority comes forward to depose and is permitted to be

cross examined by the accused, it cannot be said that

the sanction, thus granted by the sanctioning authority is

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legal and valid.

6. In view of the above and the several other

discrepancies noted by learned Trial Court, I find that

the plausible view of the acquittal taken by the learned

Trial Court need not be interfered with by this Court in

appeal, particularly, in view of paragraph no. 42 of the

judgment of the Hon'ble Supreme Court in case of

Mallappa and Other V/s. State of Karnataka reported in (2024) 3 SCC 544. Paragraph no. 42 reads as under:-

"42. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as: (i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive - inclusive of all evidence, oral or documentary; (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge; (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed; (iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the

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Trial Court."

7. In the absence of the sanctioning authority being

presented as a prosecution witness, it must be said that

the sanction itself has to be treated as non est.

Therefore, the entire trial gets vitiated from that point

onwards.

8. Therefore, keeping in mind the principles laid down

by the Hon'ble Supreme Court in Ashok Kumar Aggarwal (supra) and Mallappa and Others (supra) the view taken by the learned Trial Court being a plausible

view, I decline to interfere with the acquittal granted by

the learned Trial Court. Accordingly, the appeal stands

dismissed.

9. Record and Proceedings to be sent back to the

concerned Court forthwith.

(D.N.RAY,J) MAYA