1999 Supreme(Guj) 28

Gujarat High Court
Judgename :A.L.DAVE, R.K.Abichandani
MAHENDRA HARJIVAN LUHAR - Appellant
Versus
STATE - Respondent
S.CRI.A. 804 of 1998
Decided On : 02/05/1999

Headnote:(a) Constitution of India, 1950 - Arts. 19, 21 & 226 - Petitioner alleging that he was innocent, never tried still languishing in Jail - Petitioner stated that his brother `R assumed petitioners name `M and went on trial for offences under Secs. 302, 459, 397 & 411 IPC - On appeal against acquittal, petitioner having the real name `M arrested & brought before Court & convicted - Court collected the evidence & information including report from Advocate General & found allegations true - Facts were admitted to be true by original accused `R also - In the circumstances petitioner was ordered to be released.

       It is indeed surprising that though the petitioner who was not the real accused was served by the police with the notice of acquittal appeal issued by the High Court and the accused was produced before the Sessions Court while executing the bailable warrant of Rs. 2,000/- issued by the High Court, it was not detected by the police or perhaps not brought to light that the respondent No. 5 Ratilal who was the real accused was tried in the name of his brother Mahendra. We expect the State Government to probe in to this departmentally to rule out involvement of the concerned police personnel. We would leave the matter at that and direct immediate release of the petitioner who, as per the report filed by the Additional Advocate General, is not the real accused who was tried in his name and against whom the acquittal appeal was filed in his name, though purported to be defended by him by seeking appointment of an Advocate.

       [Para 11]

       (b) Constitution of India, 1950 - Art. 226 - Conviction without hearing accused in appeal No. 256/85 against acquittal - Consequences - Judgment & order made in Criminal Appeal are to be treated as non-est & nullilty & stand recalled - Appeal restored to file for hearing real accused `R - Ordered that, that acquittal appeal be immediately listed.

       The judgment and order made by this Bench on 23.7.1998 convicting the accused-respondent in appeal and the order of sentence imposed pursuant thereto on 31.7.1998 in Criminal Appeal No. 256 of 1985 are treated as non-est, and nullity, and stand recalled. As a consequence, the petitioner Mahendra Harjivan Luhar is ordered to be released forthwith. The Criminal Appeal No. 256 of 1985 stands restored to file for hearing and the respondent No. 5 Ratilal Harjibhai Luhar who has stated and is shown to be the real accused who was actually tried in the Sessions Case is allowed to defend the accquittal appeal as the accused-respondent.

       [Para 13]

       (c) Vade Mecum - Trial of wrong person in place of real accused - Direction in this respect issued.

       (a)

       At the time of arrest of any person for a crime while noting his identification marks, photographs of such person must invariably be taken and made a part of the record, which would enable such person to be identified at any stage after his arrest;

       (b)

       Such photographs should also be submitted to the Court with the charge-sheet and be part of the papers of the trial;

       (c)

       Whenever appeals are filed, the appellate record must contain the photographs of the accused concerned;

       (d)

       The photographs should be enough in number to show the accused clearly from his front pose as well as his side pose, and should include a photograph of the accused in a standing position;

       (e)

       The photographs of the accused person should be duly authenticated by the concerned officer who arrested the accused person;

       (f)

       An authenticated copy of the Crime Record Card of the accused should also form part of the record before the Trial Court and be transmitted to the Appellate Court when the appeal is preferred;

       (g)

       In all Sessions triable cases, when warrants of arrests are issued, the photographs and marks of identification should be cross-checked with the accused;

       (h)

       In all Sessions triable cases, at the time of arrest, the identity of the accused should be properly verified and care should be taken to ascertain his correct name and address;

       (i)

       The officer arresting the accused must certify the particulars showing the identity of the accused and the fact that his correct name and address have been ascertained. Such certificate should accompany the charge- sheet which is sent to the Court;

       (j)

       In all acquittal appeals also whenever notices and warrants are issued by the High Court, the photographs and marks of identification should be cross-checked with the accused and when the notices are returned duly served and the warrants executed, they should accompany a certificate by the concerned Court forwarding them to the effect that the accused has been duly served after verifying his identity, name and address.

       [Para 13]