VINODBHAI @ VALJIBHAI BHAGVANBHAI RABARI vs STATE OF GUJARAT

RULE. Learned APP Mr.Manan Mehta waives service of notice of Rule for the respondent - State.

Heard learned advocate Ashish M.Dagli appearing with Mr.Aamir S. Pathan, learned advocate for the petitioner and learned APP Mr.Manan Mehta for respondent No.1 - State of Gujarat. Perused the record.

The Petitioner has challenged the judgment and order dated 21.8.2017 by the 18th (Ad?hoc) Additional Sessions Judge, Vadodara @ Savli in Criminal Revision Application No.4 of 2016 whereby while allowing such Revision Petition preferred by the prosecuting agency, the Sessions Court has reversed and thereby quashed and set aside the order dated 23.7.2012 by the learned Judicial Magistrate First Class, Savli below Exh.20 in Criminal Case No.1910 of 2010. Thereby, the Sessions Court has rejected the order of discharging the present petitioner from the charges levelled against him in such criminal case which are under Sections 379, 511 and 120 of Indian Penal Code read with Sections 3 and 7 of the Damages of the Public Properties Act so also under section 15 of the Indian Petroleum Pipeline Act.

The law is well settled so far as provision to discharge any accused under Section 239 of Code of Criminal Procedure, 1973 (hereinafter referred as `Code'') is concerned. The application under Section 239 of the Code by present petitioner at Exh.20 in Criminal Case is at Annexure `B''. The perusal of such application which is in detail makes it clear that practically petitioner has averted the discussion of all papers of chargesheet so as to emphasize that there is no iota of evidence or any prima facie evidence against him in the chargesheet so as to frame charges against him for the offences as alleged. So far as factual details are concerned, it is undisputed fact that there is no allegation in chargesheet that petitioner was ever present at the place of theft of petroleum product from the pipeline by which petroleum product is being transmitted from one place to another place. It is also undisputed fact that no incriminating material of any nature whatsoever including stolen property or any benefit against such stolen property including money i.e. sale proceed of stolen property or any other such substance was found from the petitioner. Thereby, in absence of any direct evidence either regarding involvement in the offence of theft of petroleum product or regarding dealing with the stolen property, the only option which remains with the prosecution is to book the petitioner for such offences is either for conspiracy or for extending any help to the main accused. Unfortunately, there is no evidence to confirm any such activity and therefore, after scrutinizing the available record and relying upon legal pronouncement referred by the petitioner, the learned Judicial Magistrate First Class (For short `JMFC'')has allowed the application of the petitioner and discharging the petitioner from the charges levelled against him by order dated 23.7.2012. If we peruse such order, the learned JMFC has also discussed all material evidence and provision of law so as to arrive at the conclusion that there is no iota of evidence against the petitioner to continue with the proceeding against him as alleged and, therefore, relying upon decisions recorded in such judgments decided to discharge the petitioner. On scrutiny of such record, practically, I could not find out any irregularity or illegality in any manner whatsoever.

However, the Investigating Agency has challenged such order in Criminal Revision Application No.4 of 2016 before the Sessions Court. On perusal of impugned judgment dated 21.8.2017 by the Sessions Court, it becomes clear that Sessions Court has relied upon the judicial pronouncements only, which confirms that accused cannot be discharged and mainly relying upon provision of Section 120 of IPC observed that ingredients of the offences of Criminal conspiracy being an agreement between persons who are alleged to conspire for doing an illegal act or for doing any act by illegal means can be proved only after recording evidence. However, Sessions Court has though observed that an offence of conspiracy cannot be deemed to have been established on mere suspicions, surmises or conjectures which are not supported by cogent and acceptable evidence, came to the conclusion that when name of the petitioner is disclosed by co?accused, he could not be discharged.

Therefore, even Sessions Court could not point out that what is the prima facie evidence against the petitioner except the statement of co? accused to confirm his involvement in commission of offence as alleged. The Sessions Court has committed an error in deciding Revision Application against the petitioner, for the simple reason that by all means, statement of the accused cannot be considered as an evidence against the petitioner to consider him an accused because it would never be proved before the Court in accordance with law and that too beyond reasonable doubt. It is undisputed fact that statement of accused even if it is signed by the accused has no evidentiary value. It is also undisputed fact that Investigating Agency may add name of any person in the statement of the co?accused when such statement is not signed by accused person but by the Investigating Officer only, but thereafter they have to find out the evidence so as to club such person with the commission of crime. Otherwise, Investigating Agency may add name of anyone in the statement of co?accused and may harass any such other person so as to face trial without any fault on his part.

So far as submissions by the learned APP is concerned, he is also mainly relying upon the statement of co? accused. Therefore, if we peruse the entire record, it becomes clear that even in FIR, the Manager of Indian Oil Corporation could not confirm that how and who has committed theft but he lodged a complaint on next day of incident only upon receipt of intimation and order by his Chief Manager to verify the place from where pipeline from Vadodara to Ratlam is passing and where there is information that there is break in the pipeline and leakage at that place which is agricultural field in the village of which petitioner is resident. The FIR initially disclosed about the leakage of petroleum only and an attempt to commit theft. However, there is no disclosure

that actually what quantity of petroleum has been stolen and how and by whom. Even statement of all other witnesses do not confirm the same. Whereas, for joining the petitioner as an accused, the Investigating Agency is relying upon statement of co?accused namely; Mr.Natvarbhai @ Natu Pujaram Prajapati wherein it is alleged in the name of such witness against the petitioner that all the accused had met at Vadodara Circuit House where such meeting was possible because of the help of the petitioner and entire plan was made in the guest house where petitioner has conveyed that field in his village from where pipeline is going is safe to commit theft of petroleum product because he is having Power of Attorney to manage the affairs of such field whose owner is residing at Vadodara. However, the Investigating Agency has failed to record the statement of concerned staff or officer of the government guest house at Vadodara so as to ascertain that whether any room was booked by present petitioner as Sarpanch on given date or not and that whether any such gathering or meeting was held as recorded in the statement of co?accused

namely; Natvarbhai. Similarly there is contradictory version with reference to field of Indrad village from where there is allegation that petroleum product has been stolen. Pursuant to averments by the prosecution regarding affairs of the petitioner to manage the field in question, petitioner has filed an affidavit confirming that owner of the land was taking care of the land at the relevant time and that he was taking care of the land before two years from the date of incident but not at the time of incident. I have perused the entire record, minute details of all facts and circumstance are required to be avoided to be discussed at this stage when trial is to be proceeded against other accused but when there is no prima facie evidence against the petitioner to confirm that he was part of any conspiracy, it would be unnecessary to continue the proceeding against the petitioner which may ultimately result into greater hardship to him for no valid reason.

On the contrary, if at all petitioner is having any control over the field from which there is allegation of theft of petroleum product then practically he would not conspire with other accused to commit theft because in that case practically he is trustee of the property.

At the most, if at all prosecuting agency is able to prove the involvement of the petitioner during the trial by adducing appropriate, cogent and reliable evidence beyond reasonable doubt then prosecuting agency would be free to pray for adding the petitioner as an accused at the relevant time and at that time trial Court may be allowed to decide such issue afresh without being influenced by present round of litigation where petitioner is discharged. Therefore, even if petitioner is discharged as prayed for, such discharge would not come in way either of the prosecution or the trial court to array him as an accused as and when and if there is cogent and reliable evidence beyond reasonable doubt.

I have gone through the citations referred by the petitioner. It is in support of his claim and when I am relying upon it except its reference, there is no need to make this order lengthy because otherwise also settled legal position is discussed in detail hereinafter.

[ A] Suresh Chhotalal Verma v. State of Gujarat reported in 2001(1) GLH 797

[ B] Bijal Jagabhai Bambhva v. State of Gujarat reported in 2016(1) GLW 300

[C] Ibrahim @ Ibu Kalumiya Mansuri v. State of Gujarat dated 9.7.2001

[ D] Dhanjibhai Keshbhai Parmar v. State of Gujarat dated 5.11.2015 in Criminal Misc. Application No.12353 of 2015.

In view of above contradictory statements and evidence, though there is no proof of commission of any offence, since there is no categorical and specific evidence in the chargesheet, which can even prima?facie show the involvement of the petitioner accused in commission of such offence, there is no reason to ask the petitioner to face the trial for couple of years.

Therefore, though it is certain that any accused cannot be discharged if there is any prima-facie evidence against him, it

is also certain that thereby presence of minimum and prima-facie evidence is must to frame charge and, therefore, there is provision regarding discharge of accused in Cr.P.C . that in absence of prima-facie evidence against any person, the Court may discharge such person from the alleged offences.

In support of such conclusion, reference to certain judgments of the Apex Court are necessary, which are as under:-

(1) AIR 1997 S.C. 2041: State of Maharashtra vs. Priya Sharan Maharaj ?

It is held that at the stage of framing the charge, the Court has to consider the material with a view to find out if there is ground for presuming that accused has committed an offence or that there is no sufficient ground for proceeding against him and not for the charges by arriving at the conclusion that it is not likely to lead to a conviction.

(2) AIR 2000 SC 665 = 2000 SCC(2) 57 : State of MP vs. SB Johari ?

It was held that, the Court at the stage of S.227 and S.228 is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the

accused. Only prima facie case is to be looked into. The charge can be quashed if the evidence which the prosecutor proposes to prove the guilt of the accused, even if fully accepted, it cannot show that accused committed that particular offence. Thus it is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross?examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial.

(3) 2005 SC 359: State of Orissa vs. Debendra Nath Padhi ?

The Apex Court has held that, it is seen from S.227 of the Code that in a case triable before the Court of Session, if the Court on consideration of the record of the case and the documents submitted therewith and after hearing the submission of the prosecution and the accused if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused after recording reasons for doing so.

(4) (1997) 4 SCC 393 = 1997 AIR SCW 1833: State of Maharashtra vs. Priya Sharan Maharaj ?

Referring to the case of Niranjan Singh Karam Singh Punjabi (supra) held that at the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The

Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth and even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out that whether there is any ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

(5) AIR 2007 SC 2149 = 2007 AIR SCW 3683 ? Soma Chakravarty v. State ?

It is held as under: Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible.

(6) AIR 2012 SC 1890 ? General Officer Commanding Vs.CBI

It is held as under: The cognizance has to be taken of the offence and not of the offender and that it is the duty of the investigating agency to collect and to produce cogent evidence against the accused for framing charge and Court can convict the accused only if such charges i.e. evidence is proved on record without reasonable doubt. Therefore, if there is no chance to prove a commission of offence by the accused, charge cannot be framed.

(7) AIR 2009 SC Supplimentary 1744 ? State of M.P. Vs.Sheetla Sahai

It is held as under: if the Court arrives at only opinion, there is no evidence against the accused, the Court shall not put accused to harassment by asking him to face a trial.

Thus, the law on the subject is now well settled, that at Ss.227 and 228 stage, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, shift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

However it cannot be ignored that what is to be looked in to is a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; therefore only because Apex Court has held so, it can not be said that even if in absence of suspicion, presumptive opinion of the commission of offence as alleged charge must be framed. Suffice to say that when enactment / statute provides for discharging accused, basically accused has a right to get discharge, which may be subject to fulfillment of certain criteria, that may be laid down either in the statute as well as its interpretation by the Apex Court and not otherwise. Therefore there can be order of discharge if there is no evidence with charge sheet which gives rise to even little suspicion to presume the commission of offence by the accused. Needless to say that even if there is suspicion regarding commission of offence, what is required to refuse discharge is suspicion of commission of offence by the accused against whom charge sheet is filed. Thus, even if suspicion is possible for commission of offence, and if there is no evidence to link such suspicion with the accused, there cannot be a presumption against the accused that he had committed the offence and he may entitled to get discharged from the charges levied against him under the charge sheet. Needless to say that the charges levied against the person is to be considered and not the story or history of incident which results in to the commission of offence. For more clarity, commission of offence alone is not sufficient to frame charge against any person, there must be some suspicion that offence had been committed by the said person and not by any other person., If the suspicion is to the effect that though offence has been committed, probably accused might have not committed such offence but real offender may be some one else, Court has to see that truth comes out whereby the Investigating Agency may not be permitted to put their hands down merely by filing charge sheet against any one suspect or any innocent person. In such cases trial cannot be allowed to continue only upon opinion of the investigating agency that accused had committed the offence as alleged in charge sheet. The Court has to arrive at independent opinion, after considering the available prima facie evidenced on record which is only in the form of charge sheet, not only tabular charge sheet but list of witnesses and their statement before the investigating agency (police papers). It can not be ignored that the ratio of conviction is quite low only because of the reason that though

police papers supports the charge sheet, at the time of trail witnesses does not support their statement; this happens because of the possibility that in most of the crimes against the person/body under the Penal Code, the statement of witnesses are common to the effect that accused had acted in particular manner. However when crime is pertaining to some documents or properties intellectual and real, the investigating agency has to find out the real culprit with probable cogent evidenced, rather than only oral evidence that accused had committed crime as alleged. This is the area when its Courts duty to frame independent suspicion regarding not only commission of crime but involvement or roll of the accused against whom charge sheet is filed and if there is no possibility of even little suspicion against the accused regarding commission of offence by him, there is no bar to discharge such person from the charges levied against him. In such cases it would be open for the original complainant and the investigating agency to keep such person under suspicion but to investigate further so as to find out real culprit,

else filing of charge against a person only on suspicion but without sufficient evidence against him would be a futile exercise and it will not only increase unnecessary workload but crime in the society also, since real culprits are able to secluded them from the trial.

Considering the above discussions, both on facts and on law point, it becomes clear that investigating agency, has squarely failed to properly investigate the incident so as to find out the real culprit and to collect cogent and reliable evidence so as to confirm conviction against such culprit.

I have scrutinized the prima facie evidence on record which categorically fails to prove the involvement of the accused in commission of crime and that there is no prima facie evidence against him for framing the charges, hence the revision applications deserves to be allowed, thereby allowing the application for discharge by the petitioner.

Thereby in absence of any prima? facie evidence against the petitioner, he is entitled to get the benefit of discharge from the alleged offences and, therefore, this revision application is allowed as prayed for whereby judgment and order dated 21.8.2017 by Sessions Court of Vadodara @ Savli in Criminal Revision Application No.4 of 2016 is quashed and set aside confirming the judgment and order dated 23.7.2012 by the learned Judicial Magistrate First Class, Savli below Exh.20 in Criminal Case No.1910 of 2010 discharging the present petitioner from the charges levelled against him. However, it is made clear that this order will not preclude the Investigating Agency or the Court to initiate appropriate proceeding and to add / join the petitioner as an additional accused as and when there is cogent and reliable evidence beyond reasonable doubt to prove that petitioner was part of the conspiracy as alleged. To that extent, it is made clear that observations in this judgment so also in the judgment and order dated 23.7.2012 by the learned Judicial Magistrate First Class, Savli below Exh.20 in Criminal Case No.1910 of 2010 is purely for limited purpose to deal with the issue at this stage only.

Rule is made absolute to the aforesaid extent.