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 Polcie 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 alelged offence.
2.4 Learned Sessions Judge, after hearing the parties, rejected both the application ie., 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 Ashokkumar Kevalram Thakkar was joined as respondent no.2, who was original complaint, by the present applicant and thereafter, on a request being made by learned advocate for the applicant to delete the respondent no.2 as he was not the necessary party, by an order dated 13.02.2020, respondent no.2 was deleted from this proceeding.
2.6 Thereafter, in the present proceedings, an application being Criminal Misc. Application No. 2 of 2020 in Criminal Revision Application No. 180 of 2020 was preferred by original complainant to permit him to join and hear in the present proceedings, as he is necessary party. With the consent of the applicant, learned appearing for the original complainant was permitted to argue in the present proceedings vide order dated 14.02.2020
3. Heard learned advocates for the respective parties and learned APP for the respondent-State.
4. Mr. Yatin Oza, learned senior advocate for the applicant has argued in detail submitting that no offence was disclosed from the complaint as alleged by the prosecution as well as from the charge sheet papers. Learned Sessions Judge, without examining the material, mechanically rejected the application for discharge of the present applicant. It is further submitted that learned Judge has wrongly rejected the discharge application on relying upon the inquest panchnama and post mortem report. That, no findings are given in the order that how the applicant is liable to have committed the offence as alleged. That, there is material contradictions in the various statements of the complainant. That, prosecution has presented its case as custodial death, for which, an inquiry was also initiated before the lower court. That, during the investigation, investigating agency has called CCTV footage of the Rajmoti Oil Mill. That, in the said footage, nothing suspicious or incriminating has been found and therefore, investigating agency has intentionally not included the said CCTV footages in the charge sheet. There was nothing on record about any intention to kill the deceased by the present applicant, and therefore, no ingredients of offence under Sections 302 and Section 365 of the Indian Penal Code are made out by the prosecution. That, the police agency itself has admitted that present is a case of custodial death and just with a view to suppress the said unfortunate incident of custodial death of the deceased, present applicant and other co-accused are wrongly roped in the offence. That, learned Sessions Judge has committed an error in not appreciating the contents of the complaint, police papers and papers of the judicial inquiry papers about the custodial death, from which, it is clearly made out that the applicant has not taken any part in the offence alleged. It is further submitted that Manager of Rajmoti Oil Mill had not inflicted any such injuries upon the deceased, which could have caused death of the deceased. That, on the contrary, the Manager of the Rajmoti Mill had produced the deceased before the Police Station for lodging an FIR against him for misappropriation of the amount of the applicant's fund. That, deceased had committed misappropriation of lacs of rupees and applicant has lost his lacs of rupees and even after, he is falsely involved in the offence. That, there is no evidence on record to establish the ingredients of Section 120B of the Indian Penal Code because the prosecution has made out the case of custodial death, for which, judicial inquiry was held which clearly falsified the allegation of the prosecution against the present applicant. It is further submitted that in the entire charge sheet, no case is made out against the present applicant. It is further submitted that however, copy of the order rejecting an application of discharge was not available with the present applicant, charge was immediately framed by the learned Sessions Judge. That, charge was never read out in the open court which is clearly contrary to the criminal jurisprudence. Referring section 227 of Cr.PC, it was submitted that is is mandatory under this provision to read a charge and explain the same to the accused, which was not done in the present case. That, copy of the charge was also not provided for over a period of two months. That, learned Sessions Judge has committed serious error and illegality by examining the witnesses. It is further argued that however charge was framed on 22nd November 2019, certified copy of the charge was applied on 9th December 2019. That, applicant was informed by the staff of the Presiding Officer that copy of the charge was lost from the record of the Sessions Case and it cannot be given to the applicant. That, trial was commenced by examining prosecution witnesses on 21st January 2020. That, applicant approached this Court by way of filing Special Criminal Application No. 640 of 2020. That, on 28th January 2020, this Court was pleased to direct the learned Principal District Judge to call for the remarks and learned court below immediately provided the copy of the charge on 29th January 2020. Thereafter, adjournment application was filed by the present applicant on 4th February 2020, which was rejected and trial was continued. That, copy of the charge was not provided to the present applicant for over a period of 2 months, and thereafter, conducted trial, which is a serious error/illegality by examining the witnesses. In support of his arguments, learned senior advocate has placed his reliance on the judgment reported in 2015(15) SCC 31. Thus, ultimately it was requested by learned advocate for the applicant to allow present application by quashing and setting aside the impugned orders.
5. From the otherside, learned APP for the respondent -State as well as Mr. Yogesh Lakhani, learned senior advocate for the original complainant have strongly objected the arguments advanced by learned advocate for the applicant and submitted that from the complaint itself as well as from the police papers and charge sheet papers, priam facie case is clearly made out against the present applicant-accused no.2. It is further submitted that witnesses have clearly stated in their statement about role of this accused as well as incriminating evidence. The prosecution has established strong prima facie case against the present applicant. It is further submitted that 48 injuries were received by the deceased, which are clearly shown in the post mortem report. That, it was preplanned conspiracy wherein police officers are also involved in the offence. That, present applicant is a main conspirator while accused no.3-Kirpalsing was present at the commission of crime from the beginning. It is further submitted that role of this two accused was clearly emerged from the charge sheet papers. Referring document Ex. 70 before the Sessions Court in Sessions Case No. 104 of 2016, Sessions Case No. 11 of 2017 and Sessions case No. 55 of 2019, learned APP has drawn attention of this Court that while recording plea, specific question was asked to the present applicant whether he was understood with the contents of the document Ex. 68, charge framed by the court, read over to him and explained to him? That, the answer was affirmative and applicant has stated that the offence was not admitted by him and he requested to proceed with the trial on his own cost. That, argument of framing charge against the applicant in his absent or not read over the charge as well as not explain him the charge was not correct or true. That, in a document Ex. 70, even after reading and explaining the charge Ex. 68, present applicant himself had made his signature before the court on 22nd November 2019. Referring statements of prosecution witness Gulabbhai Valibhai Pathan, Rajubhai Hansrajbhai Kakkad, Kartikbhai Mansukhbhai Gadhiya, Pushpaben wife of Dineshbhai Maganlal Dakshini, Manav son of Dineshbhai Maganlal Dakshini and others as well as post mortem report, inquest panchnama, it is argued that role of the present applicant was clearly made out by these witnesses involving the present applicant in the offence. It is further argued that ample material was placed before the learned Sessions Court disclosing the grave suspicious against the present applicant-accused no.2. That, Sessions Court is fully justified in framing the charge for proceedings of trial. That, the test to determine the prima facie case would different upon the facts of each case. As per the directions of this Court to conclude the trial preferably within eight months and thus trial court has committed no error in framing the charge on 22nd November 2019 and proceed to examine the prosecution witnesses. That, no error or illegality was committed by the learned Sessions Court in dismissing the application Exh. 36 preferred by the present applicant as well as Exh. 51 preferred by other co-accused and framing of charge Ex. 68 on 22nd November 2019. Hence, it was requested by learned senior advocate for the original complainant and learned APP for the respondent-State to dismiss the present revision application.
6. Having gone through the compilation of the charge sheet papers, submissions made by learned advocates for the respective parties as well as learned APP for the respondent State, first of all we examine the provisions of Section 227 of Cr.PC which reads as under:
Section 227 of the Code runs thus:-
"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."
The words 'not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial 233 has been made out by the prosecution. In assessing this fact, it is not A necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.:
The scope of section 227 of the Code was considered in decision by Hon'ble Apex Court in the case of State of Bihar v. Ramesh Singh(1) where Untwalia, J. speaking for the Court observed as follows:-
"Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor pro poses to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebut ted by the defence evidence; if any, cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial".
This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of ths Sessions Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out."
7. If we consider the complaint lodged by Ashokkumar Kevalram Thakkar, brother in law of the deceased, against four accused persons wherein name of the present applicant was shown as accused no.1. As per the allegations made in the complaint that on 28th February 2016, at night, accused no.2 and other persons visited the house of his brother-in-law and kidnapped him and complainant was informed by his sister. Thereafter, he also received telephonic call at about 11.30 that as per the instructions of the present applicant, his brother-in-law was brought at Rajkot and after completion of the account, he would be returned back within a period of two days. Again on 1st March 2016, at about 7.35 hours, a telephone call was received by the complainant from her sister informing him that her husband was in a police station and was beaten by the Police to extort money by force from him, conspiracy was made by the present applicant and police. Telephonic conversation on cell phone was received and he was further informed that her husband was brutally beaten in the police choki by the police and present applicant-accused no.2 Samir Gandhi. That, on account of brutal beating to the deceased to extort money, he was succumbed to the injuries in the Bedipura Police Choki. It appears that post mortem of the deceased was performed by the doctor concerned and on 24.03.2016, cause of death was given by the medicine department with his opinion as under:
"Died due to shock and haemorrage on account of multiple injuries present over the body caused by hard and blunt object."
8. In post mortem note Exh. 48, external injuries were found over the body of the deceased. During the course of investigation, statements of Gulabbhai Valibhai Pathan was recorded wherein he has stated that he was serving as watchman in the Rajmoti Industries sine last 10 years. As per his statement on 29.02.2016, in the early morning at about 4 o'clock, when he was on duty, Manager of the Mill namely Samirbhai Gandhi and Kripalsinh Darbar brought one person and informed him to keep this person in a Giriraj room as well as to close the room from the outside, and therefore, after keeping that person in the room, it was locked. In the morning, he made an inquiry of that person and his name was found as Dineshbhai Maganbhai Dakshini as he was serving as manager in the depo in Rajmoti Mill at Ahmedabad. It was further found that misappropriation of Rs. 60 to 65 lacs was made by him, he also found that Manager Shri Samir Gandhi was frequently entering into the room of Giriraj with a base ball stick and Dineshbhai was beaten, as felt by him. He was restrained to enter into the room as per the instructions of the present applicant.
9. Prosecution witness Rajubhai Hansrajbhai Kakkad was also serving as an accountant in the Rajmoti Industries. As the deceased was working as a Manager in the depo of the Rajmoti Industries at Ahmedabad and amount was not received as required, present applicant and Shyambhai Shah were informed and on 28th February 2016, Samirbhai Gandhi and Kripal Zala were instructed to visit at Ahmedabad depo, and therefore, in a Scorpio vehicle being registration No. GJ-3- BA-9487 under the ownership of present applicant, they reached to Ahmedabad and returned in the morning at about 4.00 a.m. on Monday at Rajkot. Dineshbhai Maganbhai Dakshini was kept in the Giriraj room of Rajmoti Mill and it was locked from the outside and food was served in the room. As per his statement, present applicant beaten him to extort money. On inability shown by the deceased Dineshbhai of returning payment, he was brutally beaten. Thereafter, on the ground of lodged a complaint against the deceased by the present applicant, he was taken to to Bedipura Police Chocki in the vehicle of present applicant.
10. Another witness Dharmeshdan Manhardan Devka was also serving as an accountant with Rajmoti Industries. He has also supported the case of the prosecution stating that deceased Dineshbhai Maganbhai was confined in the office of Giriraj building and he was locked from the outside. Present applicant was trying to clear account with him and was beating him, and therefore, Dineshbhai Maganbhai was shouting. Strict instruction was given by the present applicant to extort money from the deceased Dineshbhai and on failure to recover money from him, present applicant instructed Shri Gandhi to recover the money by hook or crook. During the stay of two days, deceased was unable to manage any amount, and therefore, he was taken to Bedipura Police Choki with a view to register a police complaint against him by Samir Gandhi-co accused.
11. Prosecution witness Kartikbhai Mansukhbhai Gadhiya was also working as Computer Operator in Bedipura Police Choki. In a statement, he has stated that on 1st March 2016, in the evening at about 7.00 p.m., three persons came to the Bedipura Police chocki and talked with Shri Yogeshbhai Ramanlal Bhatt, ASI that the money was to be recovered from the deceased Dineshbhai today itself and no time would be permitted to him. That, instruction was given by the owner present applicant to recover the money as deceased was brought from Ahmedabad on instructions issued by the present applicant, and therefore, he was confined in the room of the Mill for two days. Present applicant further instructed to recover the money from the deceased by persuading him at initial stage and if he fails, by using man power/force, money was to be recovered, whatever expenses would be made. Thereafter, Dineshbhai was brutally beaten in the police choki.
12. Statement of Pushpaben wife of Dineshbhai Maganlal Dakshini wife of the deceased was also recorded, wherein she has also supported the prosecution case. As per her statement, Samir Gandhi and other co-accused visited her house, kidnapped her husband by demanding huge amount from her husband, inability shown by her husband to repay the amount, execution of one writing in a blank paper under the signature of her husband was supported by this witness. Thereafter, telephonic conversation between the present applicant and this witness was also supported by her. She has also informed of her talked with her deceased husband. As per the talk with her husband, Samir Gandhi and present applicant had brutally beaten him, and thereafter, he was taken to the Police Choki by Samir Gandhi. That, with the aid of police, he was brutally beaten and she was requested to save him and manage the amount, as demanded by them, otherwise he would be murdered. As inability was shown by her to manage the amount and was ready to hand over the flat, in which, she is residing, telephone was disconnected. Thereafter, she was informed by her parents and family members of marital home that her husband was passed away.
13. Panch Witness Manav Dineshbhai Maganlal Dakshini who happens to be son of the deceased, has also supported the facts of visit of Samir Gandhi and other three persons at his house, demanding huge amount from his father, kidnapping him by these persons, confining him for the misappropriation of Rs. 60 to 70 lacs, execution of writing in a blank paper and taking their signatures by force, his father forcefully kidnapped by the persons arrived at his home; on 1st March 2016 also telephone call from Samir Gandhi was received and had a talk with his father, informing that since last two days, in Rajmoti Mill, Rajkot, he was brutally beaten by Samir Gandhi and present applicant namely Samir Shah. He was taken to police choki by Samir Gandhi and with their aid, he was brutally beaten and request was made by his father to save him and manage the amount otherwise, he would be murdered. Willing was shown to hand over the flat, in which, he was residing and call was almost disconnected.
14. From all these statements of the prosecution witnesses as well as other connected charge sheet papers, prima facie, it appears that there is sufficient incriminating material found against the present applicant to frame charge. From the reasons arrived at by learned Sessions Judge, Rajkot, this court is of the view that no error as well as illegality was committed by learned Sessions Judge in rejecting the application Ex. 36 and 51 on 7th November 2019.
15. It appears that vide Ex. 86, an application for seeking adjournment was submitted by the present applicant stating that without providing a copy of the charge, trial as commenced by examining two witnesses on 21st January 2020. It was further submitted that to obtain certified copy of the order of framing charge, on 9th December 2019, application was filed by him. That, accused no.1 had no other option except to file Special Criminal Application No. 640 of 2020 before this Court for seeking direction. On 28th January 2020, this court has directed the learned Principal District Judge for their remarks and only on receipt of the order, accused was provided certified copy of the charge framed on 29th January 2020. This Court has called a copy of remarks of the Principal District Judge, Rajkot as ordered in Special Criminal Application No. 640 of 2020 on 28th January 2020.
16. As per the remarks received from the Principal District Judge, Rajkot on 22nd November 2019, it appears that learned advocate for the accused applied for certified copy (Regi. Entry No. 8335 dated 22.11.2019) of the charge and other documents and on 27th November 2019(wrongly typed as 27.11.2020), certified copy was delivered to the learned advocate for the accused. Copy of application and the copy of the endorsement by the advocate showing receipt of the certified copy were attached. It appears that learned advocate appearing for the accused applied for getting certified copy of the charge along with other papers on 22nd November 2019. Certified copy of the discharge application under Section 227 of Cr.PC and the order passed thereunder on 7th November 2019 was applied by the present applicant on 11th November 2019 and was supplied on 19th November 2019 and charge was framed on 22nd November 2019. Certified copy of framing of charge was again applied on 9th December 2019 and supplied on 29th January 2020, after passing the order dated 28th January 2020 by this Court (Coram: S. H. Vora, J.) in Special Criminal Application No. 640 of 2020 would not escape the present applicant or suppress the fact that certified copy of framing charge was already supplied previously on 27.11.2019. On the second time, present applicant applied for getting certified copy on 9th December 2019 and was supplied on 29th January 2020. Receiving of certified copy of framing of charge on a first attempt on 27th November 2019 wa
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s clearly suppressed by the present applicant. Averments that without obtaining certified copy of the charge dated 22nd November 2019, trial was commenced by the learned Sessions Judge and two witnesses were examined are not true. 17. Learned Sessions Judge in her order dated 4th February 2020 below Ex. 86 in last para has observed as under: "It further appears that as the Hon'ble High Court given direction to conclude the trial preferably within eight months and same order produced today on record, now the matter is proceeded on every Tuesday, Wednesday and Thursday in the week." 18. Learned Sessions Judge has rightly proceeded to examine the prosecution witnesses after framing the charge on 22nd November 2019, as the copy of the charge framed was already available with the applicant on 27th November 2019. Charge was clearly read over to him as well as explained also on 22nd November 2019. The applicant himself has put his signature below document Ex.70 and no objections were raised by the present applicant till the examination of the witnesses by the learned Sessions Judge. 19. In case of Indra Dalal v. State of Haryana, (2015) 11 SCC 31 , Hon'ble Apex court has observed as under: "The word 'confession' has no where been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible." 20. The ratio laid down by Hon'ble Apex Court in cited judgment would not be applicable to the present case considering the facts at this stage. 21. For the reasons, therefore, this Court is in complete agreement with the view taken by learned Sessions Judge, Rajkot that there is a sufficient ground for trying the accused in the instant case. Moreover, this Court would reluctant to interfere with the findings of the learned Sessions Court in absence of any special circumstances. For the reasons given above, 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 and order dated 22nd November 2019 passed by the same learned Sessions Judge below Exh. 68 framing the charge against the applicant is hereby confirmed and accordingly, this revision application stands dismissed. Notice stands discharged.