Back
Gujarat High Court
Judgename :K.J.VAIDYA
STATE OF GUJARAT - Appellant
Versus
BRAHMIN BABULAL HARIBHAI - Respondent
CRIMINAL APPEAL 570 of 1990
Decided On : 03/26/1997
In these horrendous days of unprecendented recurring acts of terrorism in Punjab, Jammu & Kashmir, Assam etc. (in fact where not ?) and the blood-thirsty, devilish and anti-national communalists taking hundreds and thousands of innocent lives every year at any time at any place anywhere in India, to treat accused actually found in possession or reasonably suspected of being connected with fire arms, casually is too serious a thing and quite an irresponsible approach of the court, rather crime against the Administartion of Justice, and the society ! Such an insensitive, insensible and casual approach by the court more often than not may unnecessarily put entire "Law and Order" situation in great peril with unpredictable dangerous fall-out consequences engulfing the country even ! The principle that when evidence of the police witness is not corroborated by independent witnesses, it can not be made basis for recording order of conviction and sentence is too general and broad principle to be mechanically resorted to and applied irrespective of bearing in mind otherwise credible, dependable evidence of the police witness, and/or other attending circumstances of the case, while applying any principle to the facts of the case, the court is required to apply its mind first. It is indeed required to closely scrutinize the evidence ! In this view of the matter, in serious cases like the present one where the question involved in over all public security is quite grave and serious and further in any other serious cases like the one under the NDPS Act etc. no court could ever be permitted to be an easy unconcerned armchair critic or dischanted technocrat or have the gullible child approach, having no concern, no anxiety whatsoever for the protection of social well-being. The lofty principles which fly high and above and move here and there are indeed quite good worthy to be adopted in appropriate cases, but if applied and practised without any earthly and common sense application then that has indeed no meaning ! It must have its feet, its touch and taste of the earth, the workability and accordingly the touch and taste of the judicial vision, wisdom, pragmatism anxiously evincing parental care for the society ! If found wanting in this regards, this is where the courts are also accountable to the society for their day-dreaming, blindly holding fast ivory tower philosophy focussing and favouring accused only forgetting altogether overall social interest involved !
[Para 6]
(b) Criminal Trial - Accused found in actual possession of arms & ammunition - Acquittal - When internal terrorism has become the order of the day & society suffers due to it, courts are required to take a serious note of it - To ignore it could be treated as gross misconduct by concerned Magistrate.
When the internal terrorism has become the order of the day, it is the duty of the concerned court to be alert and aware of this challenging situation and should not lightly acquit the accused who are found in actual possession of the arms and ammunitions. These observations of the Court requires to be taken a very serious note by all the Magistrate of the State, and to ignore it could be treated as `gross misconduct by the concerned Magistrate. This caution and emphasis is absolutely necessary in view of the overall anxiety and concern of this Court as a Constitutional functionary towards the Nation to see in the first instance that the society is freed at the earliest from actual or potential grip of the terrorism round the neck of country, and in the second instance the Nation rests in peace, and harmony without which there is no scope for peace progress and prosperity in the society.
[Para 8]
(c) Criminal Procedure Code, 1973 - Sec. 378 - Arms Act, 1959 - Sec. 25(1-B) - Appeal against acquittal - Appreciation of evidence - Court on going through the evidence of PW. 4, 5 & 6 satisfied & rather convinced that the prosecution has brought home the charge against the accused beyond shadow of doubt - Contention on behalf of respondent accused that this is an acquittal appeal & unless view taken by trial court is perverse this court can not interfere has no force and without substance when nothing is taken out from the cross-examination of the Police witnesses and still recorded the order of acquittal - It is perversity - Court set aside acquittal & recorded the order of conviction.
This Court on going through the evidence of PW 4, 5 and 6 is more than satisfied rather convinced that the prosecution has brought home the charge against the accused beyond any shadow of doubt. While appreciating the evidence, the Court is required to take a hard stock of the situation prevailing in the society and in the country and must take the pragmatic, realistic view.
[Para 10]
The learned advocate appearing for the respondent- accused at this stage submitted that this is an acquittal appeal and unless it is pointed out by the learned APP that the view taken by the trial court is perverse, this Court can not interfere. This submission of Mr. Shastri has no substance because when there is nothing taken out from the cross-examination of the police witnesses alleging that they have falsely implicated the accused and yet ignoring that if the acquittal is recorded, what else it is than the absolute perversity ?
[Para 11]
There is indeed no alternartive left with this Court but to allow this appeal, and record order of conviction against accused under Sec. 25 (1-B) of the Arms Act.
[Para 12]
(d) Vade Mecum - Guidelines for law enforcing agency - Given in detail keeping in view the public interest involved.
In more often than not prescribing the elaborate guidelines in judgment, my entire endeavour has been to make in the first instance the law enforcing agency to be aware, alert, efficient and accountable and for that purpose circumspect and careful rather discreet in discharging its statutory duties affecting the overall public interest involved in the second instance to impart judicial awareness and responsibility to the courts, which many a times are found to be conspicuously absent being mislead and wandering away bringing about the serious miscarriage of justice ! Not only that but there is yet one more important aspect rather the third instance, namely the public interest, as to why this Court has often thought it advisable to give some guidelines even at the cost of being, becoming little prolix in the judgment. In judicial proceedings at the grass-root level, we all know that before the trial court there are two contesting parties. In civil cases, plaintiff and defendant. In criminal cases, prosecution and the accused. After the trial proceedings are over before the court, the party which loses obviously, challenges the impugned judgment and order before the immediate superior court. Accordingly, when still further superior court is called upon to hear and decide the case, there are over and above two litigating parties the trial court is also there as a third party in the matter of how it appreciated the evidence, interpreted law and conducted itself in dispensing the justice. Accordingly, when the case ultimately comes before the High Court-the Constitutional functionary, over and above three dimensions of the case viz. two parties and third trial court, there is still one more dimension, namely, in the fourth instance `public interest which can never be permitted to be lost sight off save and except at the grave risk and prejudice of such `public interest, and the last but certainly not the least those in the fifth instance are fresh recruits to the judiciary and junior members of the Bar who have just stepped in began their career and gaining experience ! Accordingly, while deciding the cases at the appellate, revisional or original stage, over and above two or three dimensions, the dimension of the `public interest and junior members of the Bar and Judiciary can never be allowed to be lost sight of ! Accordingly apart from reflecting upon the merits of the particular case at hand, whenever and wherever necessary High Court diagnosing and spotting out the recurring chronic disease failing the ultimate public interest and the cause of justice, must suitably prescribe the preventive long term medicine also ! If High Court will not do it, who else is going to do ? Infact, the High Court Judge is under the Constitutional obligation to exercise power of superintendence and while doing this, it has got to carve out and enlighten the path whereby overall care of the public interest is taken. Rather, with a view to effectively implement guidelines prescribed, a judgment itself must contain a catch where officers directed to comply if does not comply can be held personally accountable. This is absolutely necessary in overall public interest because of in some given cases of failing standards in appreciation of evidence and public duty by the trial courts and Government administration respectively. This must `judicial activism rather a `Judicial Duty in my opinion is the mandate of the Holy Constitution of India to protect and uphold law and the Constitution, for which every Judge has taken an oath !
[Para 14]
( 1 ) WHAT indeed is the duty of the learned Magistrate trying the accused for the alleged offences punishable under the Arms Act, 1959, when found in conscious and intelligent possession of fire -arms, more particularly in the backdrop of the breath-taking scenario of ghastly terrorism and bloody communal riots rocking the country taking innocent lives of the hundreds and thousands of citizens every year when befaced with the embarrassing pernicious situation where prosecution case entirely depends upon the evidence of the police officers and the panchas do not support the prosecution ? And further, incidentally enough for that purpose once again more particularly at the initial stage of the investigation, what indeed is the duty of the learned Magistrate when the police requests him praying for remanding the accused to its custody with a view to complete the chain of investigation to find out (i) the very source from where indeed he obtained firearms ? (ii) For what consideration ? (iii) to whom he was to sale or transfer or in any other manner hand over ? (iv) who were the other intermediatory links in between him and the manufacturers of the fire arms ? which is always and invariably absolutely necessary being an essential and the integral part of the logical investigation in the overall interests of the "law and order" and "justice" in the State, in the country. . In highly inflammable and surcharged anti-national atmosphere, with enemy countries with evil eye and design quite near across the border with their underground fifth columnist activities and continuously trafficking in fire-arms is a situation no less risky, grave and dangerous than to allow in an unguarded moment small possible spark setting ablaze the village, town, district, State and even the entire Nation if the law-enforcing agency and for that purpose even the Courts also are found unnecessarily relaxed, over-trusting, soft paddling and/or caught napping. Under such hostile circumstances, is it indeed not the duty of each and every Court to be quite alert and demonstrate judicial sensibility and awareness in dealing with the cases under the Arms and Explosive Act in place of quite care-free, unconcerned and unrealistic approach to the problem unlike the one evinced in the instant case ? the reason is no judicial perspective can ever ultimately bring home the real and substantial justice if it is divorced of overall social well being, concern and perspective. While doing justice, justice does not at all mean justice to the accused alone, it also very much includes justice to the society also. In sum and substance, the Court is not merely to handle cases, it is also required to deliver justice duly understanding them in their proper perspective. This ultimately depends upon judicial consciousness, awareness, patriotism, and all concern for the society.
( 2 ) TO appreciate and understand the brief preface indexed above it is indeed necessary to refer here synopsis of few relevant facts. Accordingly, to briefly narrate the prosecution case, as it gets unfolded from the evidence of P. W. 4 Chandrakant mehta, P. S. I. , L. C. B. , Porbandar, on 10-5-1987 when he alongwith P. I. Deol, and the other staff personnel was on patrolling duty, at about 13-50 hours near Old light house, he saw one person, who on seeing the police started running and on suspicion, was detained. On being interrogated, he revealed his name as Brahmin Babulal haribhai. On taking out search of his person, one country made 32 bore pistol in working condition was recovered from waist beneath his pent. This was seized in presence of two panchas, namely, P. W. 1 Pratapgiri Amargiri and P. W. 2 Chana laxman who ultimately did not support the prosecution (under panchnama produced at Exh. 7 ). When further inquired about licence for the said muddamal pistol, brahmin Babulal Haribhai could not produce the same. Thereafter, P. W. 4 gave a complaint at Exh. 13 at 15-30 hours. On furt
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
