IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION NO. 6536 of 2019 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL ============================================

	1 Whether Reporters of Local Papers may be allowed to see the judgment ?	Yes
2 To be referred to the Reporter or not ?		No
	3 Whether their Lordships wish to see the fair copy of the judgment ?	No
	4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No

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PRADEEP NIRANKARNATH SHARMA Versus STATE OF GUJARAT ============================================

Appearance:

MR HB CHAMPAVAT(6149) for the Applicant(s) No. 1 MR RJ GOSWAMI(1102) for the Applicant(s) No. 1 for the Respondent(s) No. 2 MR MITESH AMIN PUBLIC PROSECUTOR WITH MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1 ============================================

CORAM:H ONOURABLE MR. JUSTICE NIKHIL S. KARIEL Date : 11/06/2021 CAV JUDGMENT

1. Heard learned Advocate Shri R.J. Goswami with learned Advocate Shri H.B. Champavat for the applicant and learned Public Prosecutor Shri Mitesh Amin with learned Additional Public Prosecutor Ms. Maithili D. Mehta for the respondents.

2. Issue Rule returnable forthwith. Learned Public Prosecutor with learned Additional Public Prosecutor waives service of rule on behalf of the respondents

3. With consent of the parties, the present petition is taken up for final hearing.

4. By way of present petition, the petitioner challenges the judgement and order dated 09.02.2019 passed by the learned 8th Additional Sessions Judge, Kachchh at Bhuj in Criminal Revision Application No. 41 of 2018 whereby order below Exh. 204 in Criminal Case No. 1405 of 2011 dated 17.03.2018 passed by learned Chief Judicial Magistrate, Katchchh at Bhuj was confirmed.

5. The facts leading to the present petition in brief are as under:

5.1 At the relevant point of time the petitioner was in judicial custody as an under-trial prisoner in connection with the offence bearing I-C.R. No. 09 of 2011 and I-C.R. No. 01 of 2011 registered with CID Crime, Rajkot Zone Police Station. During the course of search in Barrack No. 11 where the petitioner was lodged at Palara Jail, Bhuj on 13.06.2014, a mobile phone along with sim card were seized. An FIR came to be registered with the Bhuj Taluka Police Station bearing II-C.R. No. 3100 of 2011 by the Police Inspector (SOG). FIR was lodged for the offence punishable under Section 188 of the Indian Penal Code (hereinafter referred to as 'IPC') and Sections 42, 43 and 45(12) of the Prisons Act, 1894 (hereinafter referred to as 'the Prisons Act').

5.2 An investigation was carried out with regard to the said complaint and whereas the petitioner and other accused were arrested in connection with the said complaint. The Investigating Officer had submitted a report dated 15.06.2011 for adding charge under Sections 465, 468, 471 read with Section 120B of the IPC. Ultimately the Investigating Officer had filed charge-sheet against accused before the learned Magistrate on 09.08.2011 for offences punishable under Sections 465, 468, 471 read with Section 120B of the IPC and Section 188 of IPC as well as Sections 42, 43 and 45(12) of the Prisons Act. The criminal case which was registered pursuant to the charge-sheet was numbered as Criminal Case No. 1405 of 2011. Since the procedure as contemplated under Section 195 read with Section 340 of the Criminal Procedure Code, 1973 ( hereinafter referred to as 'Cr.P.C') was not followed by the Investigating Officer before initiation of prosecution therefore the petitioner preferred application at Exh. 29 on 03.12.2011 before the learned Trial Court with a request to return the charge-sheet to the Investigating Officer for following appropriate procedure. The said application came to be rejected by the learned Trial Court vide o

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