Gujarat High Court
Rajubhai Khimabhai Gojia vs State Of Gujarat on 26 September, 2025
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Reserved On : - 19/08/2025
Pronounced On : 26/09/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 914 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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RAJUBHAI KHIMABHAI GOJIA
Versus
STATE OF GUJARAT
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Appearance:
MR DEVARSH P PANDYA(12986) for the Applicant(s) No. 1
MR. KRUPAL P SAVJANI(14242) for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
914 of 2025
1. Rule. Learned APP waives service of Rule on behalf
of State.
2. The present revision application has been preferred
by the present applicant - original accused under
Section 438 read with Section 442 of the Bharatiya
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Nyaya Suraksha Sanhita, 2023 (In short "BNSS")
directing against the order passed by the learned
Sessions Judge, Veraval in ACB case no.01 of 2024
rejecting the discharge application of the present
applicant - original accused below Exhibit-7 dated
05.04.2025.
3. The short facts of the present revisino application is
under:
4. Originally, one complaint was given by Vijaybhai @
Sanghabhai Pareshbhai Singhal dated 05.12.2018
before the Police Station, Junagadh and it was
alleged in the complaint by the said complainant
that on 28.11.2018, his younger brother Devrajbhai
went to the Dhankundiya village by driving Dumper
No.GJ-09-Z-3071 and thereafter, at about 05:30 in
the evening, this Devrajbhai telephoned the present
complainant and told him that the officers of the
Mines and Minerals Department have stopped his
Dumper as it is an overloaded with the sand, so, the
complainant has inquired about who is the officer of
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the Department. So, Devrajbhai told him that his
name is Dhojiyabhai and other two or three persons
are there. Therefore, complainant told to this
Devrajbhai that "Okay, I will call Mr.Vijaybhai
Barad", who is his partner in the business and
thereafter, he has talked with Vijaybhai Barad
regarding the officers of the Mines and Mineral
Department have stopped their Dumper and
thereafter, told him that this is the number of
Mr.Dhojiya and you talk with him and thereafter,
when talked with Mr.Dhojiya, then, he told him that
talk with Mr.Sanjaybhai who is also officer in the
Mines and Minerals Department and Sanjaybhai has
told the complainant that as today, he has allowed
his dumper to go but for that, he has to give
Rs.20,000/- and subsequently, on 29.11.2018, again,
Mr.Sanjaybhai has texted the message to the
complainant on his mobile phone and in the text
message, one mobile number of one - Bhikhabhai
was mentioned and told him that this amount is to
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be given to Mr.Bhikhabhai and again, Mr.Sanjaybhai
was frequently telephoned the complainant and
demanded Rs.20,000/- and subsequently, on
01.12.2018, the complainant assured the Sanjaybhai
that he will give the amount on 05 th December and
he was not willing to give this amount to
Mr.Sanjaybhai and he has given this complaint
before the ACB Police Station. Pursuant to this
complaint, a trap was led by the ACB officers, two
panchas were called and when they went to the
hotel of Mr.Bhikhabhai, he was not present, so, the
complainant has again telephoned the accused -
Sanjaybhai and Sanjaybhai told him to telephone
him after he reached at Mines and Minerals Office in
the Collector office at Navi Inaj and immediately,
Mr.Sanjaybhai telephoned complainant to give the
amount to one - Mr.Sahdevbhai and thereafter, the
complainant has talked with Mr.Sahdevbhai
regarding that Mr.Sanjaybhai has told him to give
him Rs.20,000/- but Mr.Sanjaybhai has cut his
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telephone and thereafter, again Sanjaybhai has
talked with the Mr.Vijaybhai Barad but as he was
accompanied the complainant and the leading party
and he told him that he is out of station and the
complainant has told them to give the amount to the
shop of Bajrang Pan and the complainant told him
that whenever you came to Veraval and you are
present in the office, he will give the amount and
pursuant to this, the trap was postponed as it was
not successful and the report has been submitted.
Further, the conversation between the present
applicant - accused and the other accused no.2
Mr.Sanjaybhai and other persons have already been
recorded and it was sent for the FSL and
subsequently, the report came and on 16.03.2022,
Police Inspector, ACB Police Station, Junagadh - Mr.
VR Patel has given one complaint against the
present applicant as accused no.1 and
Mr.Sanjaybhai for the offence punishable under
Sections 7(a), 12 and 13(2) of the Prevention of the
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Corruption Act, 1988 (Amended Act, 2018) and after
obtaining the sanction from the competent authority,
the chargesheet has been filed and it was given
Special ACB Case No.01 of 2024 before the Sessions
Court, Veraval and in the said special case no.01 of
2024, an application below Exhibit-7 was preferred
under Section 250 of the BNSS for discharge and
the same came to be rejected by the learned
Sessions Court on 05.04.2025 and being aggrieved
and dissatisfied by the said order, the present
revision application has been preferred.
5. Heard learned advocate Mr.Devarsh Pandya for the
applicant and it is submitted by him that looking to
the chargesheet papers, it is revealed that the
alleged offence has been committed in the year 2018
and after the span of 4 years in the year 2022, an
FIR came to be again given by the police officer
under the PC Act and shown the present applicant
as accused no.1 and another co-accused
Mr.Sanjaybhai as accused no.2. Further, he was
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submitted that the chargesheet came to be filed in
the year 2024. Further, he submitted that during the
investigation, the investigation officer has not been
able to gather or produce any iota of evidence
against the present applicant which remotely
suggests satisfaction of the ingredients of the
alleged offence qua the present applicant. Further,
he would submit that as per the amendment, 2018,
there is Section 17A of the PC Act came into force
on 26.07.2018 and the said offence as alleged has to
be committed on 28.11.2018, so, considering this, as
per the Section 17A, categorically state and create
and bar upon the police officer to conduct
investigation, inquiry or enquiry in relation to the
decision made by the public servant while discharge
of official function in duties. In the present case, the
police officer has not taken any prior approval from
the competent authority and conducted the
preliminary inquiry for 4 years and thereafter,
complaint came to be given by the police officer -
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Mr. V.R. Patel on 16.03.2022. So, the preliminary
inquiry without prior approval from the competent
authority and subsequently, lodging of an FIR,
investigation, taking sanction under Section 19 of
the PC Act or are illegal against the settled principle
of law. Hence, considering this, the present revision
application is required to be allowed and the present
applicant is required to be discharged. Further, it is
submitted that said aspect has been specifically
raised in the discharge application but the learned
Sessions Judge has decided not to deal with this
defence of Section 17A of the PC Act. Further,
learned advocate for the applicant submitted that as
per the judgment of the Hon'ble Apex Court in the
case of Yashvat Sinha and others Vs. CBI reported in
(2020) 2 SCC 338 categorically stated that Section
17A of the PC Act bar the investigation agency and
police found embarking upon inquiry, enquiry and
investigation in relation to any offence committed by
the public servant while discharging of his duty.
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Further, learned advocate for the applicant relied
upon the judgment of Hon'ble Rajasthan High Court
in the case of Himanshu Yadav Vs. State of
Rajasthan reported in 2022 SCC Online Rajasthan
1303 stated that in the said judgment, the Hon'ble
Rajasthan High Court had observed that the
allegation of demanding illegal gratification relates
to discharge of his official duties of the present
applicant and no prior approval of the competent
authority has been obtained. Hence, the proceedings
thereafter, further investigation lodging the FIR
against the petitioner without approval of the
competent authority is void ab initio as there is
specific bar under Section 17A of the PC Act.
Further, learned advocate also relied upon the
judgment of this Court in the case of Ramanbhai
Nathubhai Patel Vs. State of Gujarat in Criminal
Misc. Application No.27814 of 2016 and submitted
that as per the judgment, it is abundantly clear that
no police officer shall conduct any inquiry, enquiry
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or investigation into any offence alleged to have
been committed by the public servant under the PC
Act where, the alleged offence is relatable to any
recommendation made or decision taken by such
public servant in discharge of his official functions
or duties. Further, it is submitted that he also relied
upon the judgment of Hon'ble Karnataka High Court
in the case of Shrimati Shrirupa Vs. State of
Karnataka and also relied upon the judgment of the
Hon'ble Rajasthan High Court in the case of
Kailashchandra Aggrawal and others Vs. State of
Rajasthan in Criminal Misc. Application No.159 of
2018 and further, it is submitted by him that
preliminary inquiry report bearing outward no.81 of
2022 dated 10.02.2022 issued by the investigating
officer simply reiterates and re appreciates the exact
same facts, material and documents that were
available with him while issuing unsuccessful trap
report and preliminary inquiry suffering from non-
compliance of Section 17A of the PC Act. Further, he
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submitted that even the demand ease sine-qua-non
to constitute the offence under the PC Act but in the
present case, from the charge sheet, it appears that
the present applicant - accused has not made any
demand from any of the accused even from the
transcript also, which becomes crystal clear that the
present applicant has neither demanded any money.
On the contrary, he only answered in "Hmmmmm,
Okay" except that, there is no other conversation on
28.11.2018 and after 28.11.2018, on 29.11.2018, the
present applicant has no occasion to have
conversation with the complainant or any other
person. Hence, considering this, the order passed by
the learned Trial Court rejecting the application is
expressly illegal and against the settled principle of
law, requires to be set aside.
6. On the other hand, learned APP Mr. H K Patel has
vehemently opposed the said revision application
and submitted that from the charge sheet paper, the
involvement of the present applicant - accused has
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been prima facie established. Further, it is
submitted that from the conversation took place
between the complainants partner with the present
applicant is concerned, it is clear established that
the present applicant has abated the commission of
the crime. Further, it is submitted that illegal taking
or agreed to take illegal gratification cannot be
termed as recommendation made or the decision
taken by the public servant in discharge of his
function or duties. So, agreed to accept the bribe
amount or demanding the bribe amount or an
attempt to obtain bribe amount cannot be termed as
an official function or duties of the public servant.
So, when the present applicant - accused has not
made any recommendation or the decision has been
taken by him, hence, the argument of the learned
advocate for the applicant that Section 17A came
into play that before inquiry, investigation or
enquiry, the prior approval of the competent officer
is required. Hence, considering this, further, he
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submitted that the findings recorded by the learned
Trial Court is just and proper and does not require
any interference and there is no merits in the
present revision application and it is required to be
rejected.
7. Considering the arguments advanced by the learned
advocate for the applicant and considering the
paperbook submitted by the learned advocate for
the applicant and also perusing the impugned order
of the learned Trial Court, at this juncture, it would
be apt to refer to the observations made by the
Hon'ble Apex Court in the case of Amit Kapoor vs.
Ramesh Chander and another, reported in
(2012)9 SCC 460. Relevant observations made in
paras 8 and 9 of the said judgment read as under:-
"8. ..... Section 397 of the Code
vests the court with the power to
call for and examine the records of
an inferior court for the purposes
of satisfying itself as to the
legality and regularity of any
proceedings or order made in a
case. The object of this provision
is to set right a patent defect or an
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error of jurisdiction or law. There
has to be a wellfounded error and
it may not be appropriate for the
court to scrutinize the orders,
which upon the face of it bears a
token of careful consideration and
appear to be in accordance with
law. If one looks into the various
judgments of this Court, it
emerges that the revisional
jurisdiction can be invoked where
the decisions under challenge are
grossly erroneous, there is no
compliance with the provisions of
law, the finding recorded is based
on no evidence, material evidence
is ignored or judicial discretion is
exercised arbitrarily or perversely.
These are not exhaustive classes,
but are merely indicative. Each
case would have to be determined
on its own merits.
9. Another well-accepted norm is
that the revisional jurisdiction of
the higher court is a verylimited
one and cannot be exercised in a
routine manner. One of the inbuilt
restrictions is that it should not be
against an interim or interlocutory
order. The Court has to keep in
mind that the exercise of
revisional jurisdiction itself should
not lead to injustice ex facie.
Where the Court is dealing with
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the question as to whether the
charge has been framed properly
and in accordance with law in a
given case, it may be reluctant to
interfere in exercise of its
revisional jurisdiction unless the
case substantially falls within the
categories aforestated. Even
framing of charge is a much
advanced stage in the proceedings
under the Cr.P.C....."
8. Heard the arguments advanced by the learned
advocates for respective parties and perused the
impugned judgment passed by the learned Trial
Court. So far as the question in the present case in
hand is concerned, Section 17A of the PC Act has
been come into play and so, as per Section 17A of
the PC Act, it is mandatory to take previous approval
from the competent authority before making inquiry
or investigating the offence.
9. The short facts of the present case is already been
narrated above. So far as the present case is
concerned, the chargesheet has been filed against
the present applicant and other co-accused persons
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under Section 7(a), 12 and 13(2) of the PC Act. The
present applicant is concerned, he has been charged
along with co-accused persons, more particularly,
for the offence of the abatement of the commission
of the crime. In this regard, it is required to consider
and the main grievance put forward by the learned
advocate that while deciding the application under
Section 250 of the BNSS for discharge. The learned
Sessions Judge has not given his findings whether
Section 17A of the PC Act would apply or not?
10. The present case in hand is concerned, it is not in
dispute that initially, one complaint came to be given
before the ACB Police by one - Mr.Vijaybhai @
Sanghabhai Pareshbhai Singhal on 05.12.2018 and
pursuant to the given this complaint, a trap was laid
but the said trap was not become successful as the
trap was laid on 06.12.2018 and becomes
unsuccessful and the report has been submitted and
pursuant to this report submitted by the concerned
police officer by communication dated 29.12.2018
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from the Director of Anti Corruption Bureau,
Ahmedabad vide letter dated 29.12.2018 has told
the Gir Somnath ACB Police to make the preliminary
inquiry and to consider this inquiry. Again, the FIR
came to be given by one - Mr. V. R. Patel in-charge
Police Officer, ACB Police Station, Junagadh on
16.03.2022 and subsequently, the chargesheet has
been filed. Further, it is also not in dispute that so
far as from the police papers, there is no allegation
against the present applicant pertained to demand
of the dowry.
11. In this regard, I have also considered the authorities
on which the learned advocate for the applicant
relied upon, more particularly, the judgment of the
Hon'ble Apex Court in the case of Yashwant Sinha
Vs. Central Bureau Investigation reported in
(2020) 2 SCC 338 and more particularly,
paragraph nos.116, 117 and 118 has been held as
under:
"116. In the year 2018, the Prevention
of Corruption (Amendment) Act, 2018
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(hereinafter referred to as '2018 Act'
for short) was brought into force on
26.07.2018. Thereunder, Section 17A,
a new Section was inserted, which
reads as follows:
"17A. Enquiry or inquiry or
investigation of offences relatable
to recommendations made or
decision taken by public servant in
discharge of official functions or
duties:- (1) No police officer shall
conduct any enquiry or inquiry or
investigation into any offence
alleged to have been committed by
a public servant under this Act,
where the alleged offence is
relatable to any recommendation
made or decision taken by such
public servant in discharge of his
official functions or duties, without
the previous approval--
(a) in the case of a person
who is or was employed, at the
time when the offence was
alleged to have been
committed, in connection with
the affairs of the Union, of that
Government;
(b) in the case of a person
who is or was employed, at the
time when the offence was
alleged to have been
committed, in connection with
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the affairs of a State, of that
Government;
12. (c) in the case of any other
person, of the authority competent to
remove him from his office, at the
time when the offence was alleged to
have been committed:
Provided that no such approval
shall be necessary for cases
involving arrest of a person on the
spot on the charge of accepting or
attempting to accept any undue
advantage for himself or for any
other person:
Provided further that the
concerned authority shall convey
its decision under this section
within a period of three months,
which may, for reasons to be
recorded in writing by such
authority, be extended by a further
period of one month."
117. In terms of Section 17A, no
Police Officer is permitted to conduct
any enquiry or inquiry or conduct
investigation into any offence done by
a public servant where the offence
alleged is relatable to any
recommendation made or decision
taken by the public servant in
discharge of his public functions
without previous approval, inter alia,
of the authority competent to remove
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the public servant from his Office at
the time when the offence was alleged
to have been committed. In respect of
the public servant, who is involved in
this case, it is clause (c), which is
applicable. Unless, therefore, there is
previous approval, there could be
neither inquiry or enquiry or
investigation. It is in this context
apposite to notice that the complaint,
which has been filed by the
petitioners in Writ Petition (Criminal)
No. 298 of 2018, moved before the
first respondent-CBI, is done after
Section 17A was inserted. The
complaint is dated 04.10.2018.
Paragraph 5 sets out the relief which
is sought in the complaint which is to
register an FIR under various
provisions. Paragraphs 6 and 7 of the
complaint are relevant in the context
of Section 17A, which reads as
follows:
"6. We are also aware that
recently, Section 17(A) of the act
has been brought in by way of an
amendment to introduce the
requirement of prior permission of
the government for investigation
or inquiry under the Prevention of
Corruption Act.
7. We are also aware that this
will place you in the peculiar
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situation, of having to ask the
accused himself, for permission to
investigate a case against him. We
realise that your hands are tied in
this matter, but we request you to
at least take the first step, of
seeking permission of the
government under Section 17(A)
of the Prevention of Corruption
Act for investigating this offence
and under which, "the concerned
authority shall convey its decision
under this section within a period
of three months, which may, for
reasons to be recorded in writing
by such authority, be extended by
a further period of one month"."
118. Therefore, petitioners have
filed the complaint fully knowing that
Section 17A constituted a bar to any
inquiry or enquiry or investigation
unless there was previous approval.
In fact, a request is made to at least
take the first step of seeking
permission under Section 17A of the
2018 Act. Writ Petition (Criminal) No.
298 of 2018 was filed on 24.10.2018
and the complaint is based on non-
registration of the FIR. There is no
challenge to Section 17A. Under the
law, as it stood, both on the date of
filing the petition and even as of
today, Section 17A continues to be on
the Statute Book and it constitutes a
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bar to any inquiry or enquiry or
investigation. The petitioners
themselves, in the complaint, request
to seek approval in terms of Section
17A but when it comes to the relief
sought in the Writ Petition, there was
no relief claimed in this behalf."
13. So, as per the Section 17A is constitute bar to hold
an inquiry or enquiry or investigation unless seeking
prior permission under Section 17A of the PC Act
from the competent officer and more particularly,
for the decision taken by the public servant if there
is an allegation is relatable to any recommendation
made or the decision taken by the public servant in
discharge of the public functions. In that
circumstances, the previous approval is required.
14. Further, so from this, it is clear that Section 17A of
the PC Act came into play, when it was alleged that
the offence is related to in the decision taken by the
public servant in discharge of his official function.
So far as the present case in hand is concerned, as
per the case of the prosecution, the present
applicant initially, has intercepted the dumper by
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the present complainant and subsequently, he told
the complainant to talk with the accused no.2 and
even from the conversation, it emerges that the
complainant has told the present applicant that they
are going to give Rs.20,000/- to the Bajrang Pan. At
that time, the present applicant has stated "Okay,
Okay". So, there is clear-cut allegation of the
abatement of the commission of the offence.
Therefore, there is no nexus by any distance
between the official function of the applicant and the
Act alleged against them. So far as the present
applicant has also heavily relied upon the judgment
of the Hon'ble Karnataka High Court in the case of
Shrimati Shrirupa (Supra) is concerned, it pertains
to the decision taken by the accused regarding the
allotment of the plots, so, it was a recommendation
or the decision has been taken by the accused and
for that, Section 17A has come into play and the
prior approval is required before making any
inquiry, enquiry or investigation. As discussed
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above, the present case is concerned, the act in the
present applicant is concerned, it is not relatable to
his official duty or it relates to any decision or
recommendation made by the present applicant,
hence, there is no question of taking prior approval
under Section 17A of the PC Act.
15. So far the applicant is concerned, there is clear-cut
material has been produced along with the
chargesheet that the present applicant has abated
the commission of the offence in connivance with the
accused no.2 and further, it is required to be
considered at this stage, while framing the charge,
Court is not required to be considered whether there
is a material produced with the chargesheet will
bring home the conviction or whether it resulted
into acquittal. Further, at this stage, the Court is not
required to hold the mini trial. Hence, further, I
have also perused the findings recorded by the
learned Trial Court is just and proper. I do not find
any illegality has been committed by the learned
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Trial Court or the order seems not to have been
perversed. Hence, I do not find any merits in the
present revision application.
16. The present Revision Application No. 914 of 2025 is
hereby dismissed. The present revision application is
disposed off accordingly. Rule is discharged.
(L. S. PIRZADA, J)
JCP
