[Cites 22, Cited by 0]
Gujarat High Court
Arvind @ Talabhai Mangabhai Rathod vs State Of Gujarat on 15 April, 2026
NEUTRAL CITATION
R/CR.RA/39/2014 JUDGMENT DATED: 15/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 39 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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ARVIND @ TALABHAI MANGABHAI RATHOD
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR K S CHANDRANI(6674) for the Applicant(s) No. 1
MR JIGNESH L HAJARE(3994) for the Respondent(s) No. 9
MR PARTH S TOLIA(5617) for the Respondent(s) No. 4,5,6
NOTICE SERVED BY DS for the Respondent(s) No. 3,7,8,9
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
UNSERVED EXPIRED (N) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 15/04/2026
JUDGMENT
[1.0] By way of present revision application under Section 397 read
with Section 401 of the Code of Criminal Procedure, 1973 (for
short "CrPC"), the applicant has prayed for quashing and setting
aside of the order dated 26.04.2013 passed below Exhs.38 and
42 by the learned Additional Sessions Judge, Rajkot in Sessions
Case No.19/2012 and further to allow the same.
[2.0] Heard learned advocate Mr. K.S. Chandrani for the applicant,
learned APP for respondent No.1 - State of Gujarat and learned
advocate Mr. Parth S. Tolia for respondent Nos.4, 5 and 6.
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[3.0] It is the case of the applicant that the applicant is the original
complainant of FIR being I-CR No.104/2012 registered against
the private respondents herein and one accused namely Imu
Muslim with Thorala Police Station for the offence punishable
under Sections 143, 147, 149, 396, 302 and 506(2) of the Indian
Penal Code, 1860, section 135(1) of the Gujarat Police Act and
section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocity) Act (for short "Atrocity Act"). After
investigation, the investigating agency filed charge-sheet
against only one accused i.e. Imran @ Imu Jusubbhai Tayani for
the offence under Section 302 of the IPC only, whereas private
respondents herein were named in column No.2 of the charge-
sheet. Further, as the offences alleged were sessions triable, the
charge-sheet culminated into Sessions Case No.19/2012.
[3.1] Thereafter, charge came to be framed and trial proceeded and
during the course of recording of examination in chief (Exh.39)
of the applicant - original complainant, an application Exh.42
under Section 319 of the CrPC came to be filed by the applicant,
which came to be rejected by the learned Sessions Judge.
Hence, present revision application is filed seeking quashing of
the order passed below Exhs.38 and 42.
[4.0] Learned advocate Mr. K.S. Chandrani appearing for the applicant
- original complainant has submitted that the learned trial Court
has committed an error in dismissing the application under
Section 319 of the CrPC and power exercised by the learned trial
Court does not fall in the purview of section 319 of the CrPC. He
has further submitted that at the stage of section 319 CrPC, the
learned trial Court has conducted mini trial and assigned
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contradictory findings and observations made are against the
settled principles of law. Further, he has submitted that even at
the stage of framing of charge, all accused persons were
implicated by the complainant suo motu without there being any
application from prosecution side or any other application
relying merely on column No.2 without filing of any report
under Section 169 of the CrPC, the trial has proceeded against
the accused named in column No.1 of the charge-sheet. At the
initial stage, at the time of registration of FIR, names of all
accused were given and though there was no need of issuance
of any notice, notice was issued to the proposed accused -
private respondents herein. Further, he has submitted that the
learned Sessions Judge ought to have appreciated that the
other witnesses who have been examined by the prosecution
may or may not implicate other accused and would depose
before the Court about the information they had, but it does
not mean that proposed accused are required to be exonerated
merely because other witnesses have not deposed about the
role and involvement of other accused. He has submitted that
when the revision application was filed, trial was not concluded
and only subsequently trial is concluded and merely because
accused namely Imran @ Imu is acquitted is not a ground to not
to exercise powers under Section 319(4) of the CrPC and
independent or de novo trial is not prohibited. To buttress his
arguments, learned advocate for the applicant has relied on the
decision of the Hon'ble Supreme Court in the case of Yadwinder
Singh vs. Lakhi alias Lakhwinder Singh & Anr. reported in
2025 INSC 420; Jamilaben Hanif Manek vs. Sama Jusab
Jasraya reported in 2012(5) GLR 3712 and Mohammad Kaleem
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vs. State of Uttar Pradesh & Anr. reported in 2026 INSC 251
and argued that the learned Sessions Judge has committed an
error in properly considering the prima facie evidence and
material produced on the record, which ought to have been
considered at the time of exercising the power under Section
319 of the CrPC. He has therefore requested to allow the
present revision application.
[5.0] Learned APP appearing for the respondent No.1 - State of
Gujarat has opposed the present application on the ground that
the learned Sessions Judge has properly appreciated the
evidence and no error has been committed. Even, trial is
concluded and not a single witness has supported the case of
prosecution. He has further submitted that initially, the FIR was
filed wherein name of all the accused were given but during the
investigation, no any evidence was found against the proposed
accused - private respondents herein and considering the
material produced on record, learned Sessions Judge has
exercised the discretion and in absence of any material,
application came to be dismissed and no any error has been
committed by the learned Sessions Judge. Even, at the time of
appreciating the evidence, no any evidence qua unlawful
assembly or any conspiracy or any material is collected during
the investigation or no such evidence is revealed and
subsequently, improvement is also found from the evidence.
Hence, even after conclusion of trial, the only accused against
whom the allegation is levelled in the charge-sheet is
exonerated. Hence, he has requested to dismiss the present
application.
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[6.0] Learned advocate Mr. Part S. Tolia appearing for some of the
proposed accused - private respondents adopting the
submissions made by the learned APP has submitted that no
case is made out to interfere with the impugned order passed
by the learned Sessions Judge more particularly when at the
time of incident, accused Gaurav Mundhwa was juvenile and
another accused Hitesh Merambhai Mundhwa expired on
09.01.2014. Further, he has submitted that accused Imran @ Imu
is acquitted and whatever allegations levelled in the application
during recording of evidence of witness, learned Sessions Judge
has properly appreciated the evidence and found improvement
and only with intention to drag the proposed accused in the
litigation, application under Section 319 of the CrPC was filed
with ulterior motive. He has also submitted that the authority
relied on by the learned advocate for the applicant in the case
of Yadwinder Singh (Supra) is not helpful to the applicant -
original complainant and on the contrary it is helpful to the
proposed accused persons. He has further submitted that all
witnesses were hearsay witnesses having no any personal
information and they also turned hostile. Even, the complaint is
filed belatedly and there was not an iota of evidence to show
that proposed accused persons were members of unlawful
assembly and even no evidence to show that the offence under
Section 396 of the IPC was committed. He has further submitted
that though the complaint was filed for the offence under
Sections 143, 147, 149, 396, 302 and 506(2) of the IPC; section
135(1) of the G.P. Act and section 3(2)(v) of the Atrocity Act,
after investigation, the charge-sheet was filed only for the
offence under Section 302 of the IPC, 135(1) of the G.P. Act and
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section 3(2)(v) of the Atrocity Act and after trial, the accused
namely Imran @ Imu came to be acquitted. Lastly, he has
submitted that the said order of acquittal has not been
challenged either by the applicant - original complainant or the
State. Hence, he has requested to dismiss the revision
application.
[7.0] Having heard learned advocates appearing for respective
parties and perusing the record, at the outset, it appears that
the applicant herein is the original complainant of the FIR filed
by him on 25.06.2012 against 9 persons for incident which took
place on 24.06.2012 i.e. approximately after a delay of more
than four hours. After investigation, charge-sheet came to be
filed against accused Imran @ Imu and private respondents
herein - proposed accused were named in column No.2 of the
charge-sheet and it is mentioned that no any evidence is found
against the private respondents herein - proposed accused
whose names were mentioned in the FIR and due to this reason,
the proposed accused were neither arrested nor charge-sheet is
filed against them. After filing of the charge-sheet, case
culminated into Sessions Case No.19/2012 and thereafter,
charge was framed and evidence was recorded. Amidst trial,
during recording of evidence of present applicant - original
complainant (PW-8), an application under Section 319 of the
CrPC came to be filed by the applicant and after issuing the
notice, giving opportunity to the proposed accused, said
application came to be dismissed on 26.04.2013 by the
impugned order. Thereafter, the revision application was filed
on 10.02.2014 and after recording of the evidence, trial was
concluded and accused Imran @ Imu was acquitted on
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22.08.2014.
[7.1] It is an undisputed and admitted fact that during the pendency
of trial, application was filed under Section 319 of the CrPC
which came to be dismissed. Learned Sessions Judge came to
conclusion that during the investigation though names of
proposed accused were given in the FIR, no evidence was
collected or found against them and charge-sheet is not filed
against them. Merely because report under Section 169 of the
CrPC is not filed is not a ground to hold that the proposed
accused are required to be arraigned as accused. After
investigation, no any evidence was found then in absence of
material, question does not arise to put the proposed accused
on trial. If we accept the argument canvassed by the learned
advocate for the applicant that the Investigating Officer has to
file report under Section 169 of the CrPC and Court has to
consider the same, it is needless to say that merely non-filing of
report under Section 169 of the CrPC, is nothing but an
irregularity and does not mean that merely mentioning the
name in the FIR itself does not mean that the proposed accused
are guilty.
[7.2] Further, some improvement is found in the evidence (Exh.39) of
present applicant - original complainant and complaint (Exh.40)
filed by the applicant and in the Station Diary Entry No.2/2012,
name of only one accused i.e. Eku Khanbhai Galaxy Panwala was
mentioned. The complaint is filed belatedly and prior to
submission of said application, 7 witnesses were already
examined but they did not utter a whisper about the role or
involvement of the proposed accused. Learned Sessions Court
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did not satisfy with the evidence led by present applicant (PW-8)
to invoke the power under Section 319 of the CrPC against the
proposed accused. Only allegation levelled against the
proposed accused is that when the complainant was riding
bullet with deceased, at that time, 9 persons were present and
they had besieged the deceased and by hatching criminal
conspiracy offence is committed but no any evidence qua
offence of criminal conspiracy under Section 120(B) of the IPC
has come on record and no any evidence qua abetment or
unlawful assembly or use of criminal force and to show that with
common object or pursuant to the said object or in furtherance
of said object, the proposed accused have participated in the
offence or committed the offence of rioting and came with
deadly weapons, is found on record. Even if for the sake of
argument the presence of proposed accused is accepted even
though mere presence of proposed accused persons at the
place of incident is not enough. Even if, for the sake of
argument it is accepted that the proposed accused persons
were present at the place of incident, is not a ground to hold
that they had participated in the offence more particularly when
bare perusal of the complaint transpires that there was enmity
between deceased and accused Imran @ Imu as prior to two
days of incident in question, deceased made an assault with
sword on the accused while the accused was riding Activa and
not a single witness has supported the prosecution case. Hence,
the accused is acquitted. Not only that, there is not an iota of
evidence with regard to section 396 of the IPC and there is no
any allegation in the FIR levelled to show as to how offence
under Section 396 of the IPC is made out. Hence, bare perusal
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and scanning of the material produced, it appears that the
learned Sessions Judge has not committed any error in rejecting
the application.
[7.3] It is pertinent to note that for exercise of power under Section
319 of the CrPC, law is well settled by the Constitutional Bench
of Hon'ble Supreme Court in the case of Sukhpal Singh Khaira
vs. State of Punjab reported in (2023)1 SCC 289 wherein the
Hon'ble Apex Court explained the stage as to when such power
is required to be invoked and explained the meaning of
"conclusion of trial". Herein, trial is concluded and main accused
Imran @ Imu is acquitted. Herein, no case that the private
respondents are shown in column No.2 of the charge-sheet as
absconders or against them any evidence was found. If, during
the recording of evidence, any material is found, then there is
no bar to exercise the power under Section 319 of the CrPC and
even at the time of pronouncement of the judgment, there is no
bar to pass an order under Section 319 of the CrPC to implead
as an accused. Further, even after acquittal of accused namely
Imran @ Imu on 22.08.2014, till date neither the applicant -
original complainant nor the State of Gujarat has challenged the
order of acquittal.
[7.4] As discussed in earlier part, the law with regard to exercise of
powers under Section 319 of the CrPC is well settled by the
Constitutional Bench of the Hon'ble Supreme Court in the case
of Sukhpal Singh Khaira (Supra) that there is no bar to exercise
power under Section 319 of the CrPC and even after conclusion
of trial there is no bar to put the accused on trial by exercising
powers under Section 319 of the CrPC provided there is
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satisfactory material found on the record during trial and to
conduct trial against newly added accused but considering the
peculiar facts of the case on hand, while recording of evidence,
embellishments, improvement and omission in evidence by the
witness is common factor. Learned trial Court has taken into
consideration the fact that during the investigation, no evidence
is collected against the proposed accused persons and even
except the present applicant (PW-8), no one has stated about
the role or involvement of proposed accused persons and
whatever allegations levelled in the FIR are against the accused
Imran @ Imu who was put to trial and acquitted. Allegation
against the proposed accused is under anticipation that they
were members of unlawful assembly and except this, no role is
attributed to the proposed accused. Hence, while exercising the
power under Section 319 of the CrPC, Court has to satisfy more
than prima facie case and satisfaction on the part of Court is
important.
[7.5] Herein, no justification for the proceeding initiated against the
proposed accused is found on record and mere suspicion of
their involvement in the offence is not enough to arraign the
private respondents as accused. The power of Court under
Section 319 of the CrPC is discretionary in nature and it should
be exercised judicially having regard to various factors including
stage at which the trial has proceeded and quantum of evidence
collected and spent by the Court in collecting the evidence. In
this regard, reference is required to be made to the decision of
the Hon'ble Supreme Court in the case of Michael Machado &
Anr vs Central Bureau Of Investigation & Anr. reported in
(2000)3 SCC 262 as well as in the case of Jitendra Nath Sharma
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vs. State of U.P. & Anr. reported in 2023 INSC 576. Therefore,
what is essential for exercise of power under Section 319 of the
CrPC is that evidence on record must show the involvement of a
person in commission of a crime and that such person who has
not been arraigned as an accused should face the trial together
with the accused already arraigned but while exercising such
powers, Court must not act mechanically merely on the ground
that some evidence has come on record impleading the person
sought to be summoned. It is a satisfaction preceding the order
thereunder must be more than prima facie. Same view is also
taken by the Hon'ble Supreme Court in the case of Ramesh
Chandra Srivastava vs. State of U.P. & Another reported in
(2021)12 SCC 608 wherein it has been held that in absence of
strong and cogent evidence against the person from the
evidence led before the Court, power is required to be exercised
not in a casual and cavalier manner.
[7.6] Even, while acquitting accused Imran @ Imu, Court has assessed
the evidence and prosecution failed to prove the case and no
sufficient evidence is led so as to convict the accused against
whom allegations are levelled and charge-sheet was filed.
Herein, no case is made out as evidence recorded during the
course of recording of evidence of applicant (PW-8), if remained
unrebutted, it is not sufficient to lead to conviction. In this
regard, reference is required to be made to the decision of the
Hon'ble Supreme Court in the case of Naveen vs. State of
Haryana reported in (2022) 10 SCC 537. Hence, no evidence is
produced which is satisfactory or more than prima facie
evidence which shows the involvement of the proposed accused
persons. Even, the learned advocate for the applicant has failed
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to point out any manifest error or perversity in the impugned
order which calls for interference at the hands of this Court in
exercise of revisional jurisdiction. Considering the peculiar facts
of the case on hand, no case is made out to interfere with the
impugned order passed by the learned Sessions Judge.
[7.7] Further, the revisional jurisdiction can be exercised where there
is a palpable error or non-compliance with the provision of law
and where decision is completely erroneous and where the
judicial discretion is exercised arbitrarily. Herein, if we examine
the reasons assigned by the learned Sessions Judge, it appears
that learned Sessions Judge has already appreciated the facts
and finding of fact not to be upset unless it is found perverse
and finding of fact not to be substituted keeping in mind the
ratio of Hon'ble Supreme Court in the case of Amit Kapoor vs.
Ramesh Chander & Anr. reported in (2012)9 SCC 460 as no
perversity is found in the reasons assigned by the learned
Sessions Judge, as the said findings are based on evidence led
and hence also, no interference at the hands of this Court in
exercise of revisional jurisdiction is required.
[7.8] It would be appropriate to refer to the decision of the Hon'ble
Supreme Court in the case of Malkeet Singh Gill vs. State of
Chhatisgarh reported in (2022)8 SCC 204 wherein the Hon'ble
Supreme Court held that section 397/401 CrPC vests jurisdiction
for the purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding, sentence or
order, recorded or passed, and as to the regularity of any
proceedings of such inferior court. The object of the provision is
to set right a patent defect or an error of jurisdiction of law.
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There has to be well-founded error which is to be determined on
the merits of individual case. It is also well settled that while
considering the same, the Revisional Court does not dwell at
length upon the facts and evidence of the case to reverse those
findings. It is a settled legal proposition that if the Courts below
have recorded the finding of fact, the question of re-
appreciation of evidence by the Court does not arise unless it is
found to be totally perverse.
[8.0] Further, so far as authorities relied upon by the learned
advocate for the applicant on the cases of Yadwinder Singh
(Supra); Jamilaben Hanif Manek (Supra) and Mohammad
Kaleen (Supra) are concerned, there cannot any dispute with
regard to the proposition of law settled in the aforesaid
decisions however, in view of decision of Hon'ble Supreme
Court in the case of Parasa Raja Manikyala Rao And Anr vs
State Of A.P. reported in AIR 2004 SC 132, each case, more
particularly a criminal case depends on its own facts and a close
similarity between one case and another is not enough to warrant
like treatment because a significant detail may alter the entire
aspect. In deciding such cases, one should avoid the temptation to
decide cases (as said by Cordozo) by matching the colour of one
case against the colour of another. To decide therefore on which
side of the line a case falls, the broad resemblance to another case
is not at all decisive. Hence, considering the peculiar facts of the
case on hand, authorities relied upon by the applicant would not
avail any assistance and in view of the decision of the Hon'ble
Supreme Court in the case of Juhru & Ors v. Karim & Anr
reported in (2023)5 SCC 406, no interference at the hands of
this Court is warranted in exercise of revisional jurisdiction.
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[9.0] In wake of aforesaid conspectus, present revision application
fails and stands dismissed. Rule is hereby discharged. Record &
Proceedings, if any, be sent back forthwith to the concerned
Court.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
