AVESHHUSEN ANWARHUSEN SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Advocate Mr. Mansuri for the applicant submits that the order passed by the learned Principal Judge, Ahmedabad dtd. 10/7/2023 dismissing the application is challenged whereby the learned City Sessions Judge has not entertained the petition moved under Sec. 319 of the Code of Criminal Procedure, 1973 where the present applicant, as an accused no.13 had made a prayer to summon PSI - Mr. V.B. Vaghela, Ramol Police Station and other police officers of surveillance squad as an additional accused on the ground that they had joined hands with some of the co-accused and had created an atmosphere to commit the murder of the deceased - Amir Yasin Sheikh and thereby hatched conspiracy with the co-accused persons and have facilitated in the commission of offence.

(2.) Mr. Mansuri has relied upon the judgment in the case of Hardeep Singh v. State of Punjab & Ors ., (2014) 3 SCC 92 to submit that Sec. 319 of the Cr.P.C. can be invoked where it appears that some evidence pointing out to the complicity of some other person has been found by the Court then Sec. 319 empowers the Court to initiate the proceedings against such person. Mr. Mansuri submitted that the applicant as an accused had moved the Court to invoke the power as granted under Sec. 319 so that the persons who were shown to the Court by way of evidence of having facilitated the commission of the offence be joined as accused, then to do complete justice. Advocate Mr. Mansuri submitted that the learned City Sessions Court ought to have joined them as accused in the matter.

(3.) The present applicant is an accused in FIR no. I-36/19 registered with Maninagar Police Station for the offence punishable under Ss. 143, 144, 146, 147, 148, 149, 152 , 323, 324, 302, 332, 342 and 427 of the IPC and Sec. 3 of Prevention of Damage to the Public Property Act, 1984 and Sec. 4 of Gujarat Medicare Service Persons and Medicare Service Institutions Act, 2012 and the charge- sheet has been filed and the trial is in progress before the learned Principal City Sessions Court, Ahmedabad. There are about 3 FIRs which are alleged to be connected with the facts of the case which has been registered as I-74/19, I-75/19 and I-36/19. The incident involved in the FIR is alleged to have occurred on 21/5/2019. The first incident as stated in I-74/19 had occurred around 9.00 in I-75/19 at around 9.30 and I-36/19 at around 9.15. Learned advocate submitted that in I-36/19 wherein the present applicant is an accused, on 21/5/2019 at around 9.15, the complainant - Shahdevsinh who is a police officer received information regarding the incident of I-74/19 which took place near Janatanagar garden and the complainant along with other police officers went to the spot where he found that the injured was in 108 Ambulance and cloth was tied around his neck. Subsequently, he was ordered by PSI Vaghela to give security to the injured while he was being taken to the hospital. Such fact has come in the examination-in-chief and cross- examination of PW39 and 43. Mr. Mansuri submitted that the complainant alone without any police persons went to the hospital and as soon as the injured got off from 108 Ambulance and was climbing the stairs, a group of persons who were already present on the spot tried to attack the injured when he ran into the CT scan room and the police officer according to his statement was caught hold by one fat person so as to prevent him from getting involved in the matter. Subsequently, the injured was killed by the group of persons after which the PSI and other police officers came. Mr. Mansuri submitted that the PSI and police officers subsequently came to the place. Thus, the applicant has brought on record the fact that PSI Vaghela and other police officers had conspired to aid the accused for the commission of offence and had the police be along with the injured and could have given sufficient security at the relevant time, the murder could have been avoided.