Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Guj) 1373

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Niral R. Mehta, J.
Samirbhai Madhukantbhai Shah – Appellant
Versus
State Of Gujarat – Respondent
R/Special Criminal Application No. 4578 of 2022 with Criminal MISC. Application (For Stay) No. 1 of 2022 with Criminal MISC. Application (For Stay) No. 2 of 2022
Decided On : 29-09-2022

Advocates Appeared:
For the Appellant : Mr. Hriday Buch.
For the Respondent: Ms. Moxa Thakkar, Mr. Yogesh S. Lakhani with Mr. Jay Thakkar.

The provisions of Section 306(4)(a) of the Cr.P.C. are not attracted if an accused is tendered pardon after the commitment by the Court to which the proceeding is committed in exercise of powers under Section 307.

Headnote:
Approver - Criminal Procedure - Section 307 of the Cr.P.C. - Summary
Fact of the Case:

The petitioner, along with three other accused persons, was facing prosecution for various offenses including abduction and extortion. The co-accused, Samir Gandhi, filed an application for pardon under Sections 306 and 307 of the Cr.P.C., which was granted by the Sessions Court, declaring him as an approver. The petitioner challenged this order.
Finding of the Court:

The court considered whether the provisions of Section 306(4)(a) of the Cr.P.C. would be attracted once the case is committed to the Court of Sessions. It concluded that if an accused is tendered pardon after the commitment by the Court, the provisions of sub-section (4) of Section 306 are not attracted.
Issues: The main issue was whether the provisions of Section 306(4)(a) of the Cr.P.C. would be attracted once the case is committed to the Court of Sessions.
Ratio Decidendi: The court held that if an accused is tendered pardon after the commitment by the Court, the provisions of sub-section (4) of Section 306 are not attracted.
Final Decision: The Special Criminal Application was dismissed, and the order declaring the co-accused as an approver was upheld.

JUDGMENT :

1. By way of this petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”), the petitioner – original accused begs to challenge the order dated 30th March 2022 passed below Exhibit : 290 in Sessions Case No.104 of 2016 with Sessions Case No.11 of 2017 with Sessions Case No.55 of 2019 with Sessions Case No.17 of 2021 pending before the learned 10th Additional Sessions Judge, Rajkot, whereby an application preferred by the accomplice – co-accused namely Samir Ishwarbhai Gandhi came to be declared as approver under Section 307 of the Cr.P.C.

2. Brief facts leading to filing of the present petition, in nutshell, can be stated as under:

2.1 The petitioner along with three other accused persons are facing the prosecution for the offence punishable under Sections 302, 365, 340 and 120(B) of the Indian Penal Code. The petitioner is a partner of Raj Moti Oil Mill and Samir Gandhi i.e. the accused No.2, who turned to be an approver, was working as a Manager of Raj Moti Oil Mill.

2.2 On 28th February 2016, the accused persons had gone to the residence of the brother-in-law of the complainant namely Dineshbhai Maganbhai Daxini at Ahmedabad and abducted him to Rajkot forcefully and thereafter, detained at different places in Rajkot for extorting confession and money.

2.3 On 1st March 2016, the sister of the complainant had received a phone call from the mobile of the accused No.2 – Samir Gandhi and she was informed that her husband namely Dineshbhai Maganbhai Daxini was beaten up by the police officer, and resultantly, said Dineshbhai Maganbhai Daxini succumbed to the injuries.

2.4 Accordingly, the First Information Report being I-C.R. No.66 of 2016 came to be lodged with ‘B’ Division Police Station, Rajkot.

2.5 In furtherance to the aforesaid F.I.R., the investigation was carried out and after completion of investigation, first chargesheet came to be filed against the accused – Samir Gandhi. Thereafter, in the second chargesheet, the petitioner was shown as an accused No.1. As the case was exclusively triable by the Court of Sessions, the same was committed to the Court of learned Sessions Judge, Rajkot being Sessions Case No.11 of 2017. Similarly, the third and fourth chargesheet came to be filed, which culminated into Sessions Case No.55 of 2019 and Sessions Case No.17 of 2021 respectively and all are pending for adjudication / trial before the learned 10th Additional Sessions Judge, Rajkot.

2.6 While pending trial, the co-accused – accomplice – Samir Gandhi had filed a temporary bail application being Criminal Miscellaneous Application No.363 of 2022 for a period of 30 days on the ground of his nephew’s marriage at Mumbai. However, the learned Sessions Court, vide its order dated 17th February 2022, had partly allowed the said application and granted temporary bail to the co-accused – accomplice – Samir Gandhi from 17th February 2022 to 24th February 2022.

2.7 The co-accused – accomplice – Samir Gandhi, while on temporary bail, moved a handwritten application at Exhibit : 290 dated 22nd February 2022 in Sessions Case No.104 of 2016 under the provisions of Sections 306 and 307 of the Cr.P.C. for granting pardon. The said application, after hearing the concerned parties, came to be allowed by the learned 10th Additional Sessions Judge, Rajkot, vide its order dated 30th March 2022, by declaring the accused – accomplice – Samir Gandhi as an approver.

3. Being aggrieved and dissatisfied with the aforesaid order dated 30th March 2022 passed by the learned Sessions Judge, Rajkot, the petitioner has approached this Court with the present petition challenging, inter alia, the order dated 30th March, 2022 passed below Exhibit : 290 in Sessions Case No.104 of 2016 with Sessions Case No.11 of 2017 with Sessions Case No.55 of 2019 with Sessions Case No.17 of 2021 pending before the learned 10th Additional Sessions Judge, Rajkot.

4. I have heard M