DIPAKKUMAR BHAGWANDAS SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicants herein ­ original accused Nos.2 to 7 to quash and set aside the impugned order dated 24.05.2012 passed by the learned Sessions Court ­ learned 4th Additional Sessions Judge, Jamkhambalia, District Jamnagar below Exh.84 in Sessions Case No.35 of 2001 by which the learned Judge has rejected the said application submitted by the applicants which was submitted to discharge them and/or to drop the proceedings against them.

(2.) [2.0] Present case has a checkered history and number of proceedings have been initiated one after another since 199596 either by the applicants herein ­ original accused Nos.2 to 7 or by original accused No.1 due to which there is no progress in the trial with respect to the incident which has taken place in the year 1990 and even after a period of 22 years the case is at the stage of framing of the charge and therefore, before considering the present Criminal Revision Application on merits, few facts and chronological events are required to be referred to which are under: [2.1] In the year 1990 the applicants were part of a police team headed by the then ASP Shri Sanjiv Bhatt. An incident of rioting took place at Jamkhambalia and one FIR being IC.R. No.96/1990 came to be registered at Jamkhambalia Police Station for the offences punishable under Sections 147, 148, 149, 295, 395, 337, 454, 455, 452, 427, 436 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") as well as under the provisions of TADA. 133 persons came to be arrested from the place of offence including one Prabhudas Madhavji Vaishnani. That the said Prabhudas Vaishnani was remanded to the judicial custody with other accused persons. On 01.11.1990, the said Prabhudas Vaishnani complained to the jail authorities about back pain and was treated by the jail doctors and thereafter on 03.11.1990, the said Prabhudas Vaishnani was send to Government Hospital and ultimately he died on 18.11.1990 in hospital and the dead body was handed over to his brother (without any medicolegal case or postmortem). The death certificate was issued by the hospital stating that cause of death is acute renal failure with cardio respiratory arrest. An application was given for conducting post mortem and the said application was registered as FIR being C.R. No.I102/1990 at JamJodhpur Police Station against the police officials including the present petitioner for the offences under Sections 302, 323, 506(1) and 114 of the IPC for the death of said Prabhudas Vaishnani. That the said FIR was send to the CID Crime which investigated the said FIR. That after conducting the investigation, the CID Crime submitted 'C' summary report to the learned Judicial Magistrate First Class, JamKhambhaliya on 20.12.1995. That the learned JMFC rejected the 'C' summary report submitted by the Investigating Officer and ordered issuance of process against accused persons including the present petitioner for the offences punishable under Sections 302, 323, 506(1), 114 and 34 of the IPC, by order dated 20.12.1995. That the State Government challenged the aforesaid order dated 20.12.1995 before the learned Sessions Court, Jamnagar by way of Criminal Revision Application No.21/1996. That it appears that thereafter number of applications were submitted and the proceedings were initiated by other accused persons inclusive of Criminal Miscellaneous Application No.1799/1996 before this Court filed by one another coaccused and the learned Single Judge (Coram: Hon'ble Mr. D.H. Waghela, J.) in his order dated 23.01.2007 specifically observed that the judicial proceedings and provisions of the Criminal Procedure Code are prima facie, grossly abused by the petitioner and benefit thereof has also accrued to the other accused persons. That thereafter when the aforesaid Criminal Revision Application No.21/1996 filed by the State was about to be heard (which according to the petitioner was already heard), the State Government took the decision to withdraw the aforesaid Criminal Revision Application No.21/1996. It is to be noted that even before filing the aforesaid Criminal Revision Application No.21/1996 by the State Government, a Special Criminal Application No.43/1996 was already preferred before this Court challenging the order passed by the learned Magistrate dated 20.12.1995 directing to issue process against the accused persons and the same came to be withdrawn in the year 1996 itself and thereafter the aforesaid Criminal Revision Application No.21/1996 was preferred by the State Government. That thereafter during the pendency of the aforesaid Criminal Revision Application No.21/1996, the learned Magistrate committed the case to the Court of Sessions and the said case has been numbered as Sessions Case No.35/2001. That thereafter the State Government took the decision to withdraw the aforesaid Criminal Revision Application No.21/1996 in the year 2004. However, for whatever reason it could not be carried further. That thereafter despite the fact that there was no stay order by any Court, more particularly, in Criminal Revision Application No.21/1996, the trial / Sessions Case No.35/2001 was not proceeded further. That thereafter the State Government withdrew the aforesaid Criminal Revision Application No.21/1996 and the learned Sessions Court passed an order dated 15.07.2011 permitting the State to withdraw the said Criminal Revision Application No.21/1996. [2.2] That thereafter the original accused No.1 preferred Revision Application before the learned Sessions Court on 15.07.2011 challenging the original order passed by the learned Magistrate dated 28.12.1995 taking cognizance and directing to issue process against him. As there was a delay, the said original accused No.1 submitted the delay condone application in the said Revision Application. That despite the fact that original accused No.1 preferred Revision Application before the learned Sessions Court against the order passed by the learned Magistrate challenging the order dated 28.12.1995 on 15.07.2011, the said original accused No.1 approached this Court by preferring Special Criminal Application No.2101 of 2011 challenging the order passed by the learned Sessions Court dated 15.07.2011 permitting the State to withdraw Criminal Revision Application No.21 of 1996, without disclosing the fact that he had already preferred Criminal Revision Application before the learned Sessions Court challenging an order passed by the learned Magistrate dated 28.12.1995 which was impugned in the said Criminal Revision Application No.21 of 1996. That the learned advocate appearing on behalf of the original complainant pointed out the filing of the aforesaid Revision Application and suppressed all material fact before this Court at the time of hearing of aforesaid Special Criminal Application No.2101 of 2011. However, despite the same the said original accused No.1 continued to proceed with the aforesaid Special Criminal Application No.2101 of 2011 challenging the order passed by the learned Sessions Court permitting the State to withdraw the aforesaid Criminal Revision Application No.21 of 1996 and did not pursue the Criminal Revision Application and the delay condone application submitted by him before the learned Sessions Court. That the learned Single Judge of this Court by judgment and order dated 10.10.2011 dismissed the said Special Criminal Application after considering the observations made by the learned Single Judge in its order dated 23.01.2007 made in Criminal Miscellaneous Application No.1799 of 1996 with Special Criminal Application No.422 of 1996. The learned Single Judge also considered the submissions made on behalf of original accused No.1 with respect to the bar under Section 197 of the CrPC and Section 161 of the Bombay Police Act. That being aggrieved and dissatisfied with the judgment and order dated 10.10.2011 passed by the learned Single Judge in aforesaid Special Criminal Application No.2101 of 2011, the original accused No.1 approached the Hon'ble Supreme Court by way of Special Leave to Appeal (Cri.) No.8360 of 2011 and the original accused No.1 withdrew the said Special Leave to Appeal reserving the liberty in his favour to pursue the independent revision which he had filed and Hon'ble Supreme Court dismissed the said Special Leave to Appeal as withdrawn with aforesaid liberty and with further observation that he may urge all such grounds which are legally permissible to him including pointing out inaccuracy of facts, if any, in the order of the High Court. It is to be noted that till then the said accused did not further pursue his earlier Criminal Revision Application and condonation of delay application which was filed on 15.07.2011 challenging the original order passed by the learned Magistrate dated 28.12.1995 taking cognizance and directing to issue process against him. It appears that thereafter after the order passed by the Hon'ble Supreme court on 18.11.2011 in SLP (Cri.) No.8360 of 2011, the accused preferred application Exh.79 before the learned Sessions Court to differ framing of the charge till final disposal of the Criminal Revision Application and condonation of delay application and the learned Sessions Court dismissed the said application below Exh.79 by a detailed speaking reasoned order dated 09.12.2011. That the said accused thereafter preferred Special Criminal Application No.3323 of 2011 before this Court challenging the order dated 09.12.2011 passed by the learned Sessions Court below Exh.79 and this Court by detailed reasoned order dismissed the said Special Criminal Application No.3323 of 2011. It is required to be noted that in the said Special Criminal Application, the said accused pressed into service bar under Section 197 of the CrPC as well as Section 161 of the Bombay Police Act. Considering the fact that there was already a delay of more than 21 years from the date of incident and still the charge was not framed while dismissing the aforesaid Special Criminal Application, this Court directed the learned Sessions Court to complete the process of framing of charge and thereafter proceed further with the trial at the earliest and any attempt on the part of the accused persons to delay the framing of charge and/or trial should be dealt with very strictly. [2.3] It appears that thereafter the said accused again approached the Hon'ble Supreme Court by way of Special Leave to Appeal (Cri.) No.355 of 2012 challenging the judgment and order passed by this Court dated 26.12.2011 in Special Criminal Application No.3323 of 2011 and the learned advocate appearing on behalf of the said accused withdrew the said SLP (Cri.) with a liberty to him to pursue all his legal and factual issues before Appropriate Authority in accordance with law and the Hon'ble Supreme Court by order dated 24.02.2012 permitted him to withdraw the said SLP The matter does not end there. At this . stage, it is required to be noted that till then all the aforesaid proceedings were at the instance of original accused No.1. It is also required to be noted at this stage that in the meantime the present applicants had already filed one application Exh.84 before the learned Sessions Court for discharge and/or to drop the proceedings on 27.12.2011. However, they did not pursue the same for a considerable long time and waiting for the outcome of Special Criminal Application No.3323 of 2011 which came to be dismissed by this Court on 26.12.2011 as well as the outcome of the SLP before the Hon'ble Supreme Court which came to be withdrawn on 24.02.2012. The matter does not end there. That in the meantime and after this Court dismissed the Special Criminal Application No.3323 of 2011 and before the Hon'ble Supreme Court hears the SLP against the said order, original accused No.1 proceeded further with the Revision Application and delay condone application filed earlier which came to be dismissed and the delay condone application came to be rejected by the learned Sessions Court by order dated 21.02.2012. That against the order passed by the learned Sessions Court rejecting the delay condone application, the original accused No.1 preferred Special Criminal Application before this Court on 23.02.2012 and thereafter the said original accused No.1 withdrew the aforesaid SLP on 24.02.2012 which was filed against the decision of this Court in Special Criminal Application No.3323 of 2011 being Special Criminal Application No.534 of 2012 preferred by the said original accused No.1 against the order passed by the learned Sessions Court rejecting the delay condone application, which came to be allowed by the learned Single Judge by order dated 18.04.2012 directing to condone the delay and to hear the Revision Application within six weeks. [2.4] That thereafter the learned Revisional Court ­ learned 4th Additional Sessions Judge, Khambalia directed to register the Revision Application preferred by the applicants and another as Criminal Revision Application No.20 of 2012 and after giving opportunity to the learned advocate appearing on behalf of the applicants as well as the learned Public Prosecutor, the learned Revisional Court ­ learned 4th Additional Sessions Judge, Jamnagar, at Khambalia dismissed the said Revision Application by judgment and order dated 30.06.2012 which was preferred against the earlier order passed by the learned JMFC, Jamjodhpur dated 20.12.1995 directing to issue process against the accused persons. That the judgment and order passed by the learned Revisional Court ­ learned 4th Additional Sessions Judge, Jamnagar, at Khambalia came to be challenged by the applicants by way of Special Criminal Application No.2019 of 2012 as well as by the original accused No.1 Shri Sanjiv Bhatt by way of Special Criminal Application No.2086 of 2012. That at the time of hearing of aforesaid Special Criminal Applications, the learned advocate appearing on behalf of respective applicants pressed into service the bar under Section 197 CrPC as well as under Section 161 of the Bombay Police Act and also submitted that once earlier the State Government did not grant the sanction under Section 197 CrPC, thereafter it was not open for the State to review the decision. That the learned Single Judge by common judgment and order dated 20.07.2012 dismissed the aforesaid Special Criminal Applications by specifically observing that it is a classic case of abuse of process of scuttling the judicial process for decades. That being aggrieved and dissatisfied with the common judgment and order passed by the learned Single Judge in Special Criminal Application Nos.2086 of 2012 and 2019 of 2012, the applicants again approached the Hon'ble Supreme Court by way of Special Leave to Appeal (Cri.) Nos.60156016/2012 and the learned advocate appearing on behalf of the applicants withdrew the said SLPs and the Hon'ble Supreme Court by order dated 14.08.2012 permitted the learned Advocate appearing on behalf of the applicants to withdraw the said SLP. The matter does not end here. In the meantime, the discharge application submitted by the applicants below Exh.84 which was submitted on 27.12.2011 came to be dismissed by the learned Sessions Judge by impugned order dated 24.05.2012 and though the present Revision Application was preferred against the said order as far as back on 11.06.2012, the applicants did not further pursue the present Criminal Revision Application against the impugned order dated 24.05.2012 passed below Exh.84 in Sessions Case No.96 of 1990 and infact waited till the decision in Special Criminal Application No.2086 of 2012 and 2019 of 2012 and the decision of the Hon'ble Supreme Court in Special Leave to Appeal (Cri.) No.60156016/2012. It is required to be noted that though the impugned order has been passed by the learned Sessions Judge below Exh.84 rejecting the discharge application submitted by the applicants herein ­ original accused Nos.2 to 7 on 24.05.2012 and though the present Revision Application was filed before this Court on 11.06.2012, it appears that the learned advocate appearing on behalf of the applicants had not pointed out before the learned Single Judge in Special Criminal Application No.2019 of 2012 that the learned Sessions Judge has rejected the said discharge application and against which the present Revision Application is pending. [2.5] That thereafter the present Revision Application challenging the order dated 24.05.2012 passed by the learned Sessions Court below Exh.84 in Sessions Case No.96 of 1990 and in rejecting the discharge application came up for hearing before this Court on number of occasions and the same came to be adjourned either at the request of the learned advocate appearing on behalf of the applicants or due to nonavailability of the learned advocate appearing on behalf of the applicants. That the present Revision Application was taken up for further hearing on 24.08.2012 and again the learned advocate appearing on behalf of the applicants prayed for adjournment submitting that he wants to prepare the matter and therefore, despite the objection raised by the learned advocate appearing on behalf of the respondents, this Court adjourned the matter on 31.08.2012. That on 31.08.2012 when the present Revision Application was taken up for further hearing it was found that the learned advocate appearing on behalf of the applicants had filed a leave note therefore, this Court was constrained to adjourn the matter to 06.10.2012 observing that there is no stay in the matter restraining the learned trial Court from framing the charge. [2.6] It appears that in the meantime as the sessions case came up for hearing before the learned Sessions Judge for framing the charge on 18.09.2012, one another attempt was made on behalf of the applicants to delay the framing of the charge by submitting application Exh.137 submitting that the prosecution be directed to furnish the documents mentioned in the said application and thereafter only to proceed further with the trial / framing of the charge. The said application came to be rejected by the learned Sessions Court by observing that all the original documents which have been relied upon by the prosecution are already given to the accused by list Exh.83 on 27.12.2011. That one another application submitted by the original accused No.1 Shri Sanjiv Bhatt below Exh.138 requesting the Court not to frame the charge and drop the proceedings / prosecution on the grounds which are raised earlier before the learned Sessions Court/Revisional Court and even before this Court and on the grounds which were stated by the applicants herein while submitting the application Exh.84 and the said application has been submitted on 18.09.2012 and the said application is yet not pursued by him and it seems that the order in the present application is awaited and only thereafter again he will proceed further with the said application with a view to delay the process of framing of the charge. [2.7] In backdrop of the aforesaid facts and circumstances and the chronological events, present Revision Application preferred by the applicants herein ­ original accused Nos.2 to 7 challenging the impugned order dated 24.05.2012 passed below Exh.84 in Sessions Case No.96 of 1990 by which the learned trial Court/Sessions Judge rejected the said discharge application is required to be considered.

(3.) [3.0] Shri I.H. Syed, learned advocate appearing on behalf of the applicants herein ­ original accused Nos.2 to 7 has vehemently submitted that the learned trial Court/Sessions Judge has materially erred in rejecting the application Exh.84. [3.1] It is submitted that as such the State Government earlier and after considering all the relevant materials refused to grant sanction under Section 197 of the CrPC which had attained finality and therefore, there is a bar under Section 197 of the CrPC and therefore, no cognizance can be taken against the applicants herein ­ original accused Nos.2 to 7 without any valid sanction under Section 197 of the CrPC. [3.2] It is further submitted by Shri Syed, learned advocate appearing on behalf of the applicants that as such the respective police officers were discharging their official duty in good faith and acting under Sections 129, 130 and 131 of the CrPC and therefore, they should not be subjected to vexatious prosecution for the action taken by them in good faith and in discharge of their duty during communal violence. It is submitted that infact it was also the case on behalf of the State earlier that the death of the deceased was natural and Section 302 is not attracted. Therefore, it is submitted that when the State Government earlier took the conscious decision on 22.03.1995 refusing to grant sanction under Section 197 of the CrPC, the prosecution thereafter would be void ab initio and therefore, the present applicants are required to be discharged. In support of his above submissions, Shri Syed, learned advocate appearing on behalf of the applicants has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Chittaranjan Das vs. State of Orissa reported in (2011)7 SCC 167. It is submitted that as held by the Hon'ble Supreme Court in the aforesaid decision, once the sanction is refused, the accused cannot be prosecuted and the prosecution of the appellant therein shall be an abuse of process of the Court. [3.3] It is further submitted by Shri Syed, learned advocate appearing on behalf of the applicants relying upon the decision of the Hon'ble Supreme Court in the case of Naga People's Movement of Human Rights vs. Union of India reported in (1998)2 SCC 109 as well as in the case of State of Punjab & Anr. vs. Mohammed Iqbal Bhatti reported in (2009)17 SCC 92 that the order granting/rejecting the sanction is subject to judicial review before the High Court. It is submitted that in the present case the order refusing sanction is of March 1995 and the said order has not been challenged till date, has attained the finality and unless that order refusing sanction is set aside, the prosecution of the applicants cannot be allowed. It is submitted that therefore, the prosecution cannot be permitted in view of the bar under Section 197 of the CrPC. It is further submitted that even the prosecution by the State now, is malafide and contrary to the stand taken in earlier proceedings. It is submitted that in the earlier revision application before the learned Sessions Court/Revisional Court challenging the order of 1995 passed by the learned Magistrate taking cognizance against the applicants and directing to issue process against the applicants, the State Government took a specific stand that the death of the deceased was natural and there was no medicolegal case made out. Therefore, it is submitted that learned trial Court / Sessions Court has materially erred in rejecting the discharge application and not discharging the applicants and/or dropping the proceedings against them. [3.4] It is further submitted by Shri Syed, learned advocate appearing on behalf of the applicants that apart from the fact that though no medicolegal case has been made out against the applicants and there would be a bar under Section 197 of the CrPC, there is a further bar under Section 161 of the Bombay Police Act. [3.5] Shri Syed, learned advocate appearing on behalf of the applicants has heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of General Officer Commanding vs. CBI & Anr. reported in 2012(5) Scale 58 (AIR 2012 SC 1900) in support of his prayer to allow the present Revision Application and quash and set aside impugned order passed by the learned trial Court/Sessions Judge below Exh.84 and to discharge the applicants and/or to drop the proceedings against them. It is submitted that as held by the Hon'ble Supreme Court in the aforesaid decision, the powers under Section 197 is an executive power and the State has to decide whether Act is committed in discharge of official duty or not and the Court has no role to play on this subject. It is submitted that it is further held by the Hon'ble Supreme Court in the said decision that legislature has conferred "absolute power" on the statutory Authority to accord sanction or to withhold the same and the Court has no role on this subject. It is further submitted that as observed by the Hon'ble Supreme Court in the said decision sanction of criminal procedure amounts to taking cognizance. It is further submitted that Chapter XIV of the CrPC contains Section 190 and heading of the Chapter is "Conditions Requisite for Initiation of Proceedings" and Chapter XVI of the CrPC contains Sections 204 to 210 and pertains to "Commencement of Proceedings before Magistrates". Therefore, it is submitted that taking cognizance under Section 190 of the CrPC would amount to initiation of a criminal proceeding while issuance of a process under Section 204 would amount to commencement of criminal proceeding. It is submitted that the initiation and commencement of criminal proceeding is clearly distinct from institution of criminal proceeding. It is submitted that Section 190 expressly bars initiation and commencement of the proceedings after refusal of the sanction by the State Government. It is submitted that in the aforesaid decision, the Hon'ble Supreme Court was considering Section 7 of the Armed Forces (Special Powers) Act, 1990 which bars institution of prosecution. It is submitted that Section 7 of the Armed Forces Act is wider and distinct from Section 197 of the CrPC. It is submitted that however, in the aforesaid decision the Hon'ble Supreme Court has observed and held in para 11 that Section 7 of the Armed Forces Act is analogous to Section 197 of the CrPC and Section 19 of the Prevention of Corruption Act insofar as bar on initiation and commencement of a criminal proceeding is concerned. Therefore, it is submitted that the case of the applicants is squarely covered by the aforesaid decision wherein the law is laid down by the Hon'ble Supreme Court that the State Government or the competent Authority would be deciding whether the Act alleged is committed in discharge of official duty or not and would thereafter, accordingly, grant or refuse to grant sanction and that the Court has no role to play in this regard. [3.6] It is further submitted by Shri Syed, learned advocate appearing on behalf of the applicants that in view of the observations made by this Court while deciding Special Criminal Application No.3323 of 2011 that the question with respect to sanction under Section 197 of the CrPC can be raised at an appropriate stage and the same may be considered, it is requested to consider the issue/question with respect to bar under Section 197 of the CrPC and has requested to allow the present Criminal Revision Application and to quash and set aside the impugned order passed below Exh.84 and to discharge the applicants and/or to drop the proceedings against them.