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GUJARAT HIGH COURT
Ashutosh J. Shastri, J.
Bhagwandas @ Pappu S/o
Sureshchandra Agrawal – Applicant
versus
State of Gujarat – Respondent
R/Criminal Revision Application No.1576 of 2019
Decided on 27.7.2021
(A) Criminal Procedure Code, 1973 – Section 227 – Discharge application – Dismissal – Complaint lodged for offences under Sections 143, 147, 148, 302, 307, 323 and 120B of Indian Penal Code and Section 135(1) of Bombay Police Act – At stage of consideration of an application for discharge, Court has to proceed with presumption that material produced by prosecution is true and evaluate such material with a view to find out whether facts emerging therefrom taken at their face value disclose existence of ingredients of offence – Charge-sheet qua petitioner could not be filed only on account of fact that petitioner was absconding – Petitioner is arraigned on account of fact that on a day previous, complainant and deceased had gone to place of petitioner, where petitioner threatened deceased and gave slaps and immediately on next day, other accused persons had attacked complainant as well as deceased which led to death of deceased – So far as presence of petitioner on day of occurrence is concerned and about his prima facie role, same can be ascertained upon leading of evidence – Judge while passing order has applied mind keeping in view proposition of law on Section 227 of Code of Criminal Procedure scope and it is not possible for this Court to construe such order as perverse in any form – While passing order impugned, it does appear that entire record is examined by Court while prima facie coming to conclusion that this is not a fit case for discharge of petitioner – Role of accused petitioner is pivotal – No error committed by Judge to substantiate his prima facie opinion and when charge has already been framed, now it is desirable that petitioner who came to be arrested after abscondence of six years, must face trial – Criminal Revision Application dismissed. (Paras 9, 10, 12, 13, 15 and 16)
(B) Criminal Procedure Code, 1973 – Section 397 – Revisional Jurisdiction – Scope and ambit – Object of provisions is to set right a patent defect or an error of justification or law or perversity which has crept in proceedings.
Held: At this Court, the Court would like to observe that scope of revision application under Section 397 of Code of Criminal Procedure is well propounded by the Hon’ble Apex Court in the case of State of Rajasthan Vs. Fatehkaran Mahdu reported in (2017)3 SCC 198, and after analyzing the relevant provisions, it has been propounded that the object of provisions is to set-right a patent defect or an error of justification or law or perversity which has crept in the proceedings and this Court is of the opinion that no case is made out to fall the case of the petitioner in any of these criteria broadly propounded by Hon’ble the Apex Court. Since the Court has considered the aforesaid decision, the Court would like to reproduce the relevant observations contained in para 26 to 30 hereunder:- (Para 14)
Result: Criminal Revision Application dismissed.
JUDGMENT (ORAL)
Ashutosh J. Shastri, J.—By way of present Criminal Revision Application under Section 397 read with Section 401 of Code of Criminal Procedure, 1973, the petitioner has challenged the legality and validity of an order passed by learned Additional Sessions Judge, City Civil Court, Ahmedabad dated 29.8.2019, whereby the application submitted under Section 227of the Code of Criminal Procedure came to be dismissed while passing an order below Exh.2 in Sessions Case No.423 of 2018.
2. The case of the petitioner is that with respect to the incident in question, occurred on 14.7.2011, at 14.15 hrs, on the public road, near Madrasi Mandir, Hatkeshwar, Amraiwadi, Ahmedabad, for which a complaint is lodged, being C.R.No.I-310 of 201l filed by one Rajesh @ Raju Rameshbhai Kamle (Marathi) lodged before Amraiwadi Police Station, Ahmedabad city for the offences under Sections 143, 147, 148, 302, 307, 323 and 120B of the Indian Penal Code and Section 135(1) of the Bombay Police Act. Pursuant to the investigation, the police submitted charge-sheet against one Mr. Nikhilsing, alias Kancho, alias Raj Harshadbhai Vaghela and then the case was registered as Sessions Case No.274 of 2012. Simultaneously, the police also filed charge-sheet against three other persons, namely Satyendra Mahendrabhai Jain, Vijay Rajendrabhai Sharma and Sonu Bhagwandas, alias Paki Agrawal and the case was registered as Sessions Judge No.275 of 2012. The police also filed a charge-sheet against one juvenile delinquent Balbirsing, alias Kalu Hanumansinh Rajavat in the Juvenile Court. The said two cases namely Sessions Case No.274 of 2012 as well as Sessions Case No.275 of 2012 tried before the Sessions Court for the aforesaid offences against those respective accused persons and by giving benefit of doubt, an order of acquittal came to be passed vide judgment and order dated 22.7.2014. According to the petitioner, in the said judgment, at page 68 operative part, it is mentioned that it is not certain whether trial of the juvenile is disposed of or not and moreover, it is also mentioned that absconding accused Bhagwandas @ Pappu, S/o. Sureshchandra Agrawal, i.e. present petitioner, could not be arrested and so muddamal of the case was ordered to be preserved in the same position.
3. According to the petitioner, it is after that, Amraiwadi police arrested the petitioner on 10.11.2017 at around 23.15 hrs. and produced him before Metropolitan Magistrate, Ahmedabad City, who remanded the custody and later on, granted bail to the petitioner by passing an order in Criminal Misc. Application (Regular Bail) No.1915 of 2018. It is the further case of the petitioner that present petitioner has no connection with the alleged incident in question which took place on 14.7.2011, still unjustifiably, the petitioner came to be arrested and after completion of the investigation, supplementary charge-sheet came to be filed in the Court of learned Metropolitan Magistrate, Ahmedabad city and the criminal case was registered as Criminal Case No.19714 of 2017.
4. It is the assertion of the petitioner that upon filing of the supplementary charge-sheet, there was no iota of evidence/ material to connect the petitioner with the commission of the crime. As a result of this, upon committal of the case to the Sessions Judge, an application was submitted under Section 227 of the Code of Criminal Procedure for seeking discharge and such application was filed in Sessions Case No.423 of 2018 below Exh.2. The said application after hearing the parties came to be rejected by an order dated 29.8.2019, which is made the subject matter of the present criminal revision application.
5. Learned advocate Mr. Satish Pandya appearing for Mr. Rajesh Agrawal for the petitioner has vehemently contended that learned Court below has committed a grave error in rejecting the application, despite the fact that after approximately six years, the petitioner came to be arrested and during that time of six
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