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2022 Supreme(Guj) 1374
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Vaibhavi D. Nanavati, J.
State Of Gujarat – Appellant
Versus
Hafizhusain @ Adnan @ Jaid Tajjudin Gosmohiddin Mulla Tajuddin Mulla & 23 Others – Respondents
R/Special Criminal Application No. 3191 of 2016 with Criminal MISC. Application (Direction) No. 1 of 2022
Decided On : 23-11-2022
For the Appellant : Mr. Mitesh Amin, Ms. Maithili Mehta.
For the Respondents: D.D. Pathan, Mr. Khalid G. Shaikh, Mr. S.M. Vatsa.
The definition of "State Prisoner" in Bengal Regulation III of 1818 is not applicable to the present case as the Statute does not define the term "State Prisoner".
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 227 - DISCHARGE OF ACCUSED - STATE PRISONER - SECTION 130 OF THE INDIAN PENAL CODE - DEFINITION - INTERPRETATION - EVIDENCE - PRIMA FACIE CASE - JURISDICTION OF THE COURT - SCOPE OF SECTION 227 OF THE CODE OF CRIMINAL PROCEDURE - POWER OF THE COURT TO DISCHARGE THE ACCUSED - PRINCIPLES LAID DOWN BY THE SUPREME COURT - APPLICATION OF PRINCIPLES TO THE FACTS OF THE CASE - QUASHING OF THE IMPUGNED ORDER DISCHARGING THE ACCUSED - RATIO DECIDENDI.
Fact of the Case:
The prosecution challenged the order of the Additional Sessions Judge discharging the accused from the charges levelled against them under Section 130 of the Indian Penal Code, 1860. The accused were arrested and charge-sheeted in connection with the offence of serial bomb blast and were lodged at Sabarmati Central Jail, Ahmedabad. While in jail, they were discovered to have dug a tunnel in an attempt to escape from lawful custody. An FIR was registered, and a charge-sheet was filed against 24 accused, including the respondents. The Additional Sessions Judge discharged the accused on the ground that they were not "State Prisoners" as defined in Bengal Regulation III of 1818.
Finding of the Court:
The High Court quashed the impugned order of the Additional Sessions Judge discharging the accused. The Court held that the Sessions Court could not have held at the prima facie stage, when the charge is to be framed under Section 227 of the Criminal Procedure Code, that the accused are not "State Prisoners" relying on the definition in Bengal Regulation-3. When the Statute does not define the "State Prisoner," the same would be subject matter of evidence at the trial.
Issues: 1. Whether the accused were "State Prisoners" as defined in Bengal Regulation III of 1818? 2. Whether the Sessions Court could have discharged the accused at the prima facie stage, when the charge is to be framed under Section 227 of the Criminal Procedure Code?
Ratio Decidendi: 1. The definition of "State Prisoner" in Bengal Regulation III of 1818 is not applicable to the present case as the Statute does not define the term "State Prisoner". 2. The Sessions Court could not have discharged the accused at the prima facie stage, when the charge is to be framed under Section 227 of the Criminal Procedure Code, without examining the evidence as regards the "State Prisoner".
Final Decision: The High Court quashed the impugned order of the Additional Sessions Judge discharging the accused. The Court held that the Sessions Court could not have held at the prima facie stage, when the charge is to be framed under Section 227 of the Criminal Procedure Code, that the accused are not "State Prisoners" relying on the definition in Bengal Regulation-3. When the Statute does not define the "State Prisoner," the same would be subject matter of evidence at the trial.
JUDGMENT :
1. By way of present writ-application the prosecution – State of Gujarat has invoked Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 16.4.2016 passed by the learned Additional Sessions Judge, Court No.15, City Sessions Court, Ahmedabad, below Ex.81 and 82 in Sessions Case No.389 of 2013 whereby, the learned Judge has discharged the respondents - accused from the charges levelled against them under Section 130 of the Indian Penal Code, 1860.
2. The brief facts as stated by the writ-applicant herein for consideration of the present dispute are stated thus :-
2.1 There were serial bomb blasts in the City of Ahmedabad in the year 2008, wherein an FIR came to be lodged qua the present accused with Shahibaug Police Station being C.R. No. I-236/2008 for the offences punishable under Sections 120(B), 121 A, 124 A, 153(1) (b) (a), 302, 307, 326, 427, 435, 468, 471 of Indian Penal Code read with Sections 3, 5, 6 , 7 of Explosive Substance Act, also read with Sections 10, 13, 16, 18, 19, 20, 23, 38, 39 and 40 of Unlawful Activities ( Prevention ) Act, read with Sections 3, 4 of Damage to Public Properties Act, read with Section 25 (1) (b)(a), 27 of Arms Act, read with Sections 65, 66 of Information Technologies Act. In that incident 56 persons lost their lives and 240 persons were injured.
2.2 Few accused were arrested and charge-sheeted in connection with the aforesaid offence of serial bomb blast and the same culminated in Sessions Case No. 38 of 2009 and others. Charges came to be framed in the said connection and the accused were lodged at Sabarmati Central Jail, Ahmedabad.
2.3 The accused being in jail and offenders of the offence against the State under Section 121A and 124A, are considered to be the enemies of the State and further they being in the prison the Prisoners Act is also applicable to them, therefore any act committed by the accused which is against the Prisoners Act, are governed by the said Act and also by other criminal law.
2.4 It is the case of the first informant i.e. Govindbhai – Subedar who was on duty on 10.02.2013 that while he was on duty alongwith other officers of Sabarmati Central Jail, Ahmedabad the first informant discovered a tunnel in Yard No. 4, barrack No.4/2 of Sabarmati Central Jail, Ahmedabad dugup by the accused persons in connivance with each other with an intention to escape from the lawful custody. The Investigation of the FIR was entrusted to Crime Branch, Ahmedabad City by way of order dated 11.02.2013 passed by the Commissioner of Police, Ahmedabad.
2.5 The accused were not allowed to attend the court proceedings as they are considered to be the offenders of such a grave crime and therefore, the government had passed an order under Section 268 of Code of Criminal Procedure excluding these accused from attending the court's proceedings and that the trial was conducted through video conference.
2.6 These accused had no other way to come out of the prison and escape and therefore, a conspiracy was hatched to escape from the prison by digging up a tunnel from the premises of the jail to outside the jail campus, which is well known as "Surangkand".
2.7 The accused were kept in different Yard No.4 and 5, from where they had planned to escape by digging-up a tunnel from the jail to the outside campus of the jail and had conspired to run away in the nearby jungle.
2.8 The accused are all well educated and some of them are having degree in Engineering and MBA and therefore they were well conversant with many languages and techniques of engineering. The accused no. 1 was a civil engineer, who took the measurement of the distance from jail to outside the jail and planned as to how long and deep the tunnel would be. Further all the other accused got the equipments to dig-up the tunnel, cover it up if any jail officer visited, to distract them etc., to understand the technique of digging up the tunnel th
