Bhaveshbhai Manubhai Patel vs State of Gujarat and Others

M.D. Shah, J.—These two application u/s 482 of the Code of Criminal Procedure have been filed for quashing and setting aside order dated 4-6-2010 passed below Exs.288 and 345 in Sessions Case No. 44 of 2008 by the learned 2nd Additional District Judge, Anand, whereby the present applicants were impleaded as accused u/s 319 of the Code of Criminal Procedure, 1973 in trial.

Short facts are that a complaint was lodged before Khambholaj Police Station by the Respondent No. 2-Rahanaben, D/o Yusufbhai Yakubbhai Vohra on 5-3-2008 about riots that broke out after the Godhra incident. At the end of investigation, charge sheet was filed against the accused without disclosing names of applicants. However, subsequently, in pursuance of stay of proceedings of ten criminal trial including the present case looking to the sensitivity of Godhra riot case, investigation was entrusted to Special Investigation Team (''SIT'' for short) constituted by the Hon''ble Supreme Court. SIT started investigation and charge sheet was filed against 37 accused including 7 absconding accused and trial commenced against 37 accused. During the course of trial and after the evidences of witnesses were recorded, applications Exs.288 and 345 have been filed by the complainant in Sessions Case No. 44 of 2008 on behalf of witnesses seeking to join 13 proposed accused as accused. Upon hearing the learned advocates appearing for the respective parties, learned 2nd Additional District Judge, Anand, partly allowed both the applications joining the applicants as accused u/s 319 Code of Criminal Procedure Being aggrieved by the said order, present applications have been preferred.

As both the applications arise out of common order passed by the learned Judge in same Sessions Case, both the applications were heard together and are being decided by this common judgemnt.

Heard learned advocate, Mr. B.S. Patel for the applicants, learned Special Public Prosecutor, Mr. J.M. Panchal for the Respondent No. 1, learned advocate, Mr. M.M. Tirmizi, for the witnesses who have submitted the applications in the trial court, learned advocate, Mr. Asifkhan I. Pathan for the Respondent No. 2 and learned Senior Advocate, Mr. K.G. Menon with learned advocates, Mr. Ajaykumar Choksi and Mr. Vaibhav A Vyas for the Respondent No. 3.

It is submitted by learned advocate, Mr. B.S. Patel, for the applicants that though names of the present applicants were not disclosed by the witnesses in their earlier statements, they disclosed their names in Court without attributing any specific role with ulterior motive. It is further submitted that there are major contradictions in the evidence of witnesses who disclosed names of the present applicants before the trial court leading to a conclusion that there is no possibility of conviction and, therefore, the order passed by the trial court is bad in law and hence, requires to be quashed and set aside. Mr. Patel has also submitted that when the offence was registered, names of the present applicants were not disclosed before the Investigating Officer or before the SIT. However, after long lapse of more than 7-8 years, the witnesses have, for the first time, disclosed before the Court the names of present applicants with other accused with ulterior motive. It is further submitted that there was no pressure or fear or threat for the witnesses to have disclosed these things before the SIT. However, they did not disclose their names after long lapse of time but for the first time disclosed before the court while recording the evidence and, therefore, their evidence qua the present applicants should not be believed but should be discarded at the threshold. The trial court has committed a grave error in not considering these aspects and allowing the applications.

It is further submitted by Mr. Patel that applications were not submitted by the State of Gujarat or the SIT but were presented by the witnesses in which endorsement was made by the Government Pleader, who was in charge of this case, which speaks volume about the ulterior motive of the witnesses in implicating the applicants with the serious crime and, therefore also, the trial court has committed grave error. It is further submitted that if it appears to the Court on perusing the applications submitted by the witnesses that some persons might have been involved in the crime and just for satisfying them, court cannot implead them as accused.

It is further submitted by Mr. Patel that Zahira, who is the victim and who has lost her father in the incident, has specifically stated that present applicants are not involved in the crime which has not been considered by the trial court. According to him, trial court has committed a grave error in discarding the said statement. It is therefore requested that the impugned order passed by the trial court requires to be quashed and set aside.

He has relied on the following reported judgments:

i) (2005) 11 SCC 182 in the case of Kailash Dwivedi v. State of M.P. and Anr.

ii) (2005) 12 SCC 432 in the case of Kavuluri Vivekananda Reddy and Anr. v. State of A.P. and Anr.

iii) Michael Machado and Another Vs. Central Bureau of Investigation and Another,

iv) Krishnappa Vs. State of Karnataka,

v) Kailash Vs. State of Rajasthan and Another,

vi) Lal Suraj @ Suraj Singh and Another Vs. State of Jharkhand,

vii) Brindaban Das and Others Vs. State of West Bengal,

viii) Sarabjit Singh and Another Vs. State of Punjab and Another,

ix) Ram Singh and Others Vs. Ram Niwas and Another,

x) Jagdish Vs. State and Others,

Learned Special Public Prosecutor, Mr. J.M. Panchal for the Respondent No. 1-State and learned Senior Advocate, Mr. K.G. Menon with learned advocates, Mr. Ajaykumar Choksi and Mr. Vaibhav A. Vyas, taking this Court through the affidavit filed by the State, have supported the impugned order passed by the trial court. Learned Senior Advocate, Mr. Menon, has relied on a decision of this Court in the case of Dahyabhai Tribhuvandas Patel Vs. State of Gujarat and Others, and urged to dismiss the applications.

Learned advocate, Mr. M.M. Tirmizi, who appears on behalf of the witnesses, who have submitted the applications in the trial court, has taken this Court through various aspects of the case and submitted that all the witnesses have narrated the incident in their own perspective. He has brought to the notice of the Court that as per the depositions of other witnesses, Zahira was not present at the particular place where incident is alleged to have taken place and, therefore, at this juncture, deposition of Zahira would not be helpful to the prosecution and it can only be evaluated only while deciding the trial and according to him, no illegality has been committed by the trial court in the impugned order and hence, he also urged for dismissal of these applications.

This Court has minutely gone through the impugned order passed the trial court along with the evidence of witnesses recorded during the course of trial as well as the judgments relied on by the learned Counsel for the respective parties. There cannot any dispute regarding the principles laid down in the judgments cited by the learned advocate for the parties. Keeping in mind the principles laid down therein, this Court proceeds further.

It was found by the trial court that present case is not an ordinary case of riot or arsenal but one of the cases which has occurred in the aftermath of Godhra carnage in which three persons were burnt to death and houses of several persons were put on fire. It is required to be noted that in this case, 55 witnesses have already been examined by the trial court including Investigating Officer and after evaluating the entire evidence of witnesses and other aspects, the trial court has passed the order. At this juncture, it is too early to come to any conclusion that because of some contradiction in the evidence of witnesses, conviction is not likely to be imposed on the present applicants. All other aspects requiring appreciation of evidence including the aspect as to whether evidence of Zahira would be of helpful to any side or not can only be evaluated at the end of trial. As stated above, this Court, at this stage, cannot appreciate the evidence appearing on record in great detail. In view of the above, as the facts the present case are totally different from the facts of the cases cited by the learned advocate for the applicants, applicants would not be entitled to any benefit out of those judgments cited by their learned advocate.

A submission was also made by learned advocate, Mr. B.S. Patel, for the applicants that in the case Dahyabhai Tribhuvandas Patel (supra), contradictions were not proved while in the present case, contradictions are proved through the depositions of Investigating Officer and, therefore, the ratio laid down in the said case will not be applicable to the facts of the present cases.

There is no substance in this argument also as trial court has discussed at great length the evidence on record and gave elaborate reasons as to why names of the accused were not disclosed at the earlier stage but were involved thereafter. It was observed by the trial court that as other persons have not committed any overact but were simply present in the mob, allegations against those persons were dismissed and they were not arraigned as an accused. As far as this part of observations of trial court is concerned, neither the State nor the SIT has taken it further by challenging the same and, therefore, this Court is not expressing any opinion on these observations.

It is pertinent to note that it was contended in the applications that names of applicants which have been disclosed in the evidence are suggestive of the fact that as the applicants had not agreed to part with the money, just to bring pressure and teach lesson, names of applicants had been disclosed in the evidence. However, no such submission has been made during the course of arguments.

It was observed by the trial court in para 16 of the judgment that the Hon''ble Apex Court, considering the aspects of fair trial and to ensure free deposition of witnesses, appointed SIT, issued guidelines and directions which was indicative of the fact that investigation conducted at the initial stage was not of that quality so as to bring all the accused to books. It was further observed that considering the incident which had occurred in 2002, the witnesses, who are victims of incident, must have been scared, petrified and frightened to state anything before the investigating agency or to depose before the Court and even before the S.I.T. sensing danger or the consequences of their statements at the back of their minds and, therefore, it could be for those reasons that no statement was made implicating the persons as accused. It was therefore held by the court below that naming the proposed accused now cannot be said to be an improvement or unnatural act of the witnesses, but the witnesses might have mustered courage to depose before the Court and, therefore, submission raised by the learned advocate for the defence relying on improvement and the contradictions were not sustained. It was also further observed that in order to see that no culprits escape from the trial and no innocent persons are wrongly arrayed by the Court, it became the duty of the Court u/s 319 of the Code to pass the impugned order.

If any application is submitted by any witness or the prosecution or by any person to meet with the justice on feeling that names of persons whose names were not disclosed in the charge sheet and who are the real culprits are required to be prosecuted then Court can even suo motu take necessary steps for initiating action against them.

In a similar fact situation, this Court in Dahyabhai Tribhuvandas Patel (supra) has held in paras 12 and 13 as under:

Thus, the above directions have significant bearing on the role of SIT in further investigation of crime. Even if what is recorded in FIR and charge sheets filed subsequent thereto are seen, it appears that it was not a case of ordinary riot, but in the aftermath of Godhra incident, mob in the town of Visnagar had indulged in arsoning and looting houses of a particular community and eleven persons were brutally killed. That issuance of directions by the Apex Court in the above case of National Human Rights Commission (supra), is indicative of the fact that local investigation had failed to bring the culprits on book. The witnesses were scared, petrified and frightened to state anything before the investigating agency or to depose before the Court. Only after constitution of SIT and a Special Court, some of the witnesses including the complainant have mustered courage and started stating certain facts about the incidents in question before the SIT. However, still sense of lurking danger about the consequences of their statements before the investigating agency or deposition before the Court was at the back of their mind and for sometime petrified by their suffering in the past and apprehensive of backlash, even before SIT officers, no statement was made implicating the Appellant accused. The above conduct of the complainant and other witnesses cannot be said to be unnatural or can be termed as contradictory to or improvement over earlier statement. On further investigation, the then Investigating Officer, Police Inspector - Mr. M.K. Patel was also added as an accused and two different charge sheets were filed and four other persons were added as an accused. However, before the SIT none of the witnesses stated anything about the Appellants herein and according to SIT, since no reliable material or evidence was disclosed, they were not arraigned as accused persons. It is not in dispute that the SIT consists of persons of State Police Force and for the purpose of further investigation, they have to take assistance from the local police also. In the above circumstances, failure or unwillingness on the part of witnesses to make a statement before the officer of the SIT cannot be said to be lacuna. When the witnesses mustered courage and found themselves secured after the order passed in the case of National Human Rights Commission (supra), they had deposed before the Special Court presided by the judicial officer appointed by the High Court as per directions of the Apex Court, disclosing the role of the Appellant accused in instigating the mob who had indulged in arsoning, looting and murdering people of a particular community. The learned Judge has gone through the deposition of eight witnesses and considering the same in light of the provisions of Section 319 of the Code and has passed a reasoned order. The above peculiar facts and circumstances of this case and deposition of the witnesses during the course of trial can certainly be said to be an evidence and when the learned Trial Judge has exercised a sound judicial discretion, this Court while exercising powers under provisions of Section 482 of the Code is in agreement with the order impugned passed by the learned Judge and the impugned order cannot be said to be in any manner contrary to the law laid down by the Apex Court in the decisions relied on and referred to by the learned Counsels for the parties.

Considering the peculiar facts and circumstances of the case and exercising powers u/s 319 of the Code and directions issued in the case of National Human Rights Commission (supra), this Court finds that nature of evidence appearing to the learned Judge for exercising his sound judicial discretion for invoking powers u/s 319 of the Code cannot be said to be illegal and therefore, no interference is called for in exercise of powers u/s 482 of the Code of the Criminal Procedure, 1973 by this Court.

Applying the above ratio to the facts of the present case, on going through the evidence of witnesses and after considering the entire evidence on record, this Court at this stage cannot come to any conclusion whether any contradictions are proved by the Investigating Officer or not especially when trial court has come to the conclusion invoking powers u/s 319 Code of Criminal Procedure that present applicants are required to be prosecuted and issued summons.

It is a settled legal position that u/s 482 of Cr.P.C., the statutory power should be exercised by the Court sparingly and in the rarest of rare cases when it is found that there is abuse of process of law or any patent illegality having committed by the trial court. As discussed above, in this case, the trial court has exercised its discretion u/s 319 Code of Criminal Procedure after considering the evidence on record and upon affording full opportunity of hearing to the learned advocates appearing for the respective parties. There is no abuse of process of law or any illegality as having committed by the trial court and hence, in the opinion of this Court, inherent power should not be exercised u/s 482 of Code of Criminal Procedure The applicants will get all the opportunities to place their defense during the course of trial. Thus, both the applications are required to be dismissed.

Both the applications are dismissed. Notices discharged.

Observations by this Court in this judgment being made for the purpose of deciding these applications will not prejudice the parties in trial.

Office shall keep a copy of this judgment in each matter.