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2020 Supreme(Guj) 305
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
Samirbhai Madhukantbhai Shah – Appellant
Versus
State Of Gujarat – Respondent
R/Criminal Revision Application No. 180 of 2020
Decided on : 26-02-2020
Advocate Appeared:
For the Appellant :MR YATIN OZA, SR. ADVOCATE WITH MR NIMIT Y. SHUKLA, Adv.
For the Respondent:MR YOGESH LAKHANI, SR. ADVOCATE WITH MR JAY M THAKKAR, MS MAITHALI MEHTA, Adv
Point of Law:
If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
Headnote:
Evidence Act - Section 26 - Criminal Procedure Code, 1973 - Section 397 read with Section 401 and 482 - Applicant has also challenged order framing charge against applicant allegation made in complaint against accused namely was partner of Oil Mill and was President of Chamber of Commerce - Accused was working as Manager in Oil Mill - Deceased was handling oil business of said Oil Mill at Ahmadabad and had misappropriated funds of Mill of lacs and was not giving accounts of these money - Investigating agency after completion of investigation filed charge sheet against accused namely which was committed to Sessions Court and registered as Sessions Case - Thereafter supplementary charge sheet was filed against accused - Held, there is ground for presuming that accused has committed an offence then it is not open to Court to say that there is no sufficient ground for proceeding against accused - Presumption of guilt of accused which is to be drawn at initial stage is not in sense of law governing trial of criminal cases in France where accused is presumed to be guilty unless contrary is proved - Court has thus held that whereas strong suspicion may not take place of proof at trial stage yet it may be sufficient for satisfaction of Sessions Judge in order to frame a charge against accused - Even Code of this Court has held that a committing Magistrate had ample powers to weigh evidence for limited purpose of finding out whether or not a case of commitment - Appeal dismissed (Para 6).
Facts of the Case:
Complaint was lodged by Shri Ashokkumar Kevalram Thakkar being CR No. I-66 of 2016 with the "B" Division Police Station, Rajkot for the offence punishable under Sections 365, 302, 342 and 120B of IPC. As per the allegation made in the complaint against the accused no.2 namely Samirbhai Shah (present applicant) was the partner of Rajmoti Oil Mill and was the President of Chamber of Commerce, Rajkot. Shri Samirbhai Gandhi -accused no.1 was working as Manager in Rajmoti Oil Mill. Deceased Dineshbhai was handling the oil business of the said Rajmoti Oil Mill at Ahmadabad and had misappropriated the funds of Mill of Rs. 50-60 lacs and he was not giving the accounts of these money.
Finding of the Court:
There is ground for presuming that accused has committed an offence then it is not open to Court to say that there is no sufficient ground for proceeding against accused - Presumption of guilt of accused which is to be drawn at initial stage is not in sense of law governing trial of criminal cases in France where accused is presumed to be guilty unless contrary is proved - Court has thus held that whereas strong suspicion may not take place of proof at trial stage yet it may be sufficient for satisfaction of Sessions Judge in order to frame a charge against accused - Even Code of this Court has held that a committing Magistrate had ample powers to weigh evidence for limited purpose of finding out whether or not a case of commitment.
Result: Appeal dismissed
JUDGMENT :
1. By preferring present revision application under Section 397 read with Section 401 and 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.PC”), applicant has challenged the common order dated 7th November 2019 passed by learned 13th Additional Sessions Judge, Rajkot below Exh. 36 and Exh. 51 in Sessions Case No. 11 of 2017 whereby application Exh. 36 and 51 were rejected. The applicant has also challenged the order dated 22nd November 2019 passed by the same learned Sessions Judge below Exh. 68 framing the charge against the applicant.
2. Brief facts may be referred as under:
2.1 A complaint was lodged by Shri Ashokkumar Kevalram Thakkar being CR No. I-66 of 2016 with the “B” Division Police Station, Rajkot for the offence punishable under Sections 365, 302, 342 and 120B of IPC. As per the allegation made in the complaint against the accused no.2 namely Samirbhai Shah (present applicant) was the partner of Rajmoti Oil Mill and was the President of Chamber of Commerce, Rajkot. Shri Samirbhai Gandhi -accused no.1 was working as Manager in Rajmoti Oil Mill. Deceased Dineshbhai was handling the oil business of the said Rajmoti Oil Mill at Ahmadabad and had misappropriated the funds of Mill of Rs. 50-60 lacs and he was not giving the accounts of these money.
That, on 28th February 2016, on instructions of the present applicant and accused no.2, accused no.1 Samir Gandhi and accused no.3 Kirpalsing and other accused persons went to the residence of deceased Dineshbhai at Ahmedabad and taken him to Rajkot forcefully and he was kept at Giriraj Building of Rajmoti Oil Industries wherein he was brutally beaten by the accused no.1 Samir Gandhi to recover the money of the present applicant. After two days of confinement of the deceased Dineshbhai, present applicant had telephonic talk with accused no.4-Mr. Bhatt, ASI of Bedipura Police Station, Rajkot and asked him to extort money from the deceased Dineshbhai. As per the allegations, accused no.4 Mr. Yogesh Bhatt and other accused also beaten the deceased in police custody. Thereafter, on 1st March 2016, sister of the complainant received phone call from the mobile number of the accused no.2 and she was informed by her husband Dinesh Maganlal that he was beaten-up by the accused persons. Thereafter, as a result of which, deceased sustained multiple injuries and succumbed to the injuries.
2.2 Investigating agency, after completion of the investigation, filed charge sheet against the accused no.1 namely Samir Gandhi, which was committed to the Sessions Court and registered as Sessions Case No. 104 of 2016. Thereafter, supplementary charge sheet was filed against the accused no.2 Samir Shah-present applicant, accused no.3 Kripalsingh, accused No. 4 Yogesh Bhatt, which was committed to the Sessions Court and numbered as Sessions Case No. 11 of 2017. Thereafter, investigating officer found that present applicant-accused no.2 was absconded and was given shelter by accused no.5-Kirti Shantilal Gandhi and accused no. 6-Sandip Kirti Gandhi hence, upon found sufficient evidence during the investigation, other supplementary charge sheet was also filed against above two accused persons for the offence punishable under Sections 212 of the Indian Penal Code, which was numbered as Sessions Case No. 55 of 2019.
2.3 Present applicant and accused no.3 Kirpalsingh preferred an application under Section 227 of the Cr.PC vide Ex. 36 and other two accused persons namely Kirti Shantilal Gandhi-accused no.5, Sandip Kirti Gandhi-accused no.6 preferred another application vide Ex. 51 under Section 227 of the Cr.PC requesting to discharge them for the alleged offence.
2.4 Learned Sessions Judge, after hearing the parties, rejected both the application i.e., Exh. 36 and Exh. 51 by an order dated 7th November 2019 directing each of the accused to remain present for framing the charge on 18th November 2019.
2.5 Initially, by filing this revision application, respondent No.2 Shri Asho
