Harsukhbhai Mohanbhai Kaneriya vs State of Gujarat

Z.K. Saiyed, J.(Oral) - The original respondent of Sessions Case No.86 of 2010 has filed this Revision Application against the order dated 29.1.2016 passed below Ex.65 by the learned Sessions Judge, Surat, wherein present petitioner i.e. husband of the deceased is ordered to be joined as accused No.3.

Heard Ms. K.M. Shah, learned advocate for the petitioner and Mr.Rakesh Patel, learned APP for respondent - State.

Ms. K.M. Shah, learned advocate for the petitioner has contended that respondent No.2 herein has filed FIR C.R. No.I201 of 2006 at Kapodra Police Station for the offence under Sections 306, 498A and 114 of the Indian Penal Code against Mohanbhai Vashrambhai Kaneriya and Hemaben Vashrambhai Kaneriya. It is contended that upon receipt of the copy of the complaint, it was found that name of the original accused i.e. husband of deceased was not written by Investigating Officer and, therefore, he gave one application No.363 of 2006 on 26.6.2006 to Police Commissioner, Surat, but the Investigating Officer did not join Harsukhbhai as accused in the case.

Ms. Shah has contended that it is the case of the complainant that he has also made one application Ex.33 before the learned Additional Sessions Judge, Surat, on 21.3.2014 to arraign the present petitioner as an accused but as the question of law was involved the same was withdrawn with a liberty to file another application. It is contended that examination-in-chief and cross-examination of the original complainant the respondent No.2 was recorded at Ex.31 as prosecution witness No.4. It is contended that present respondent No.2 � original complainant has presented application Ex.65 after reproducing his entire evidence under Section 319 of the Criminal Procedure Code and prayed to join Harsukhbhai Mohanbhai Kaneriya as accused in the present case. It is contended that learned Sessions Judge, Surat, vide order dated 29.1.2016 allowed application Ex.65 by ordering the present petitioner to be join as accused No.3 and to issue summons against him.

Ms.Shah has drawn attention of the Court to Section 319 of the Criminal Procedure Code and contended that person can be joined as accused at any stage of the trial but there must be direct evidence regarding his/her role in the offence with specific allegation and specific evidence regarding ingredient of the offence. It is contended that against father-in-law and mother-in-law allegations are made but in the complaint no role of the present petitioner � husband is disclosed by the complainant and investigation was carried out at length. Even it is not the case of the complainant that in further statement of the present respondent No.2 role of the present petitioner was disclosed. It is contended that inquiry was made and further investigation was carried out but against present petitioner nothing was found or recovered to show that he has committed the offence in question as abettor, provocator or instigator and, therefore, he was not joined as accused in the charge-sheet. Lastly she has prayed to allow present revision application.

Heard Mr.Ritesh Patel, learned APP for the respondent � State. He has strongly opposed present application. He has prayed to dismiss revision application.

I have heard the learned advocates of both the sides at length and in great detail. I have also gone through papers produced before me and the judgment and order passed by the learned trial Judge.

I have perused contents of the complaint, in which present respondent No.2 has not disclosed anything against the present petitioner to establish him as a abettor or real culprit for the offence punishable under Sections 306, 498A and 114 of the Indian Penal Code. When oral evidence of the complainant was recorded, at that time, respondent No.2 has cited present petitioner as accused. The conduct of the respondent No.2 shows that it is an afterthought. The name of the present petitioner was not disclosed before the Investigating Agency and learned Judge has not considered the said issue and, therefore, in my opinion judgment and order of the learned Judge requires to be quashed and set aside.

Present Criminal Revision Application is allowed. The judgment and order dated 29.1.2016 passed in Sessions Case No.86 of 2010 below Ex.65 by the learned Sessions Judge, Surat, is hereby quashed and set aside.

Record and proceedings, if any, be sent back to the trial Court concerned, forthwith.