STATE OF GUJARAT Vs. HASMUKHBHAI V PATEL

JUDGEMENT

(1.) . Kiritbhai Jashabhai Patel, brother of the deceased Pushpa Hasmukhbhai Patel addressed the Registered letter dated 17-5-1993 to two Judges of this Court, myself and my learned brother K. G. Shah, J. stating that on 26-10-1992 Hasmukhbhai-husband of Pushpaben gave stick blows to Pushpaben and they gave poison to Pushpaben and killed her. It is also stated that his sister Pushpaben was admitted in private hospital of Dr. Jayantibhai Acharya at Baroda in unconscious condition on 26-10-1992 at 9-00 a.m. and at about 6-00 p.m. she was removed to Bhailal Amin Hospital of Baroda where Dr. Jani examined her and gave oxygen. After three days Pushpaben died in the hospital. At the time of post mortem, Dr. told .that she was made to take poisonous drug after beating her. Therefore, he lodged complaint against the accused. They were arrested by the police. Except Hasmukhbhai others were released on bail by the Court. On 22-4-1993, he was down with malaria and was not able to remain present before the Court, therefore, he sent report with Doctor's certificate before the Court. The Doctor who had not examined his sister Pushpaben whose name was not shown as witness, gave evidence. On the next day, i.e., on 23-4-1993 they went to the Court for giving evidence, but the A.P.P. without considering anything examined wrong Doctor, who had neither performed the post mortem nor treated Pushpaben. When he made an application to adjourn the case for 10 days for changing A.P.P., the Court kept it on 24-5-1993 and told to give an application for bail for the accused who was in Jail. Advocate for the accused-Hasmukhbhai gave application for bail which was granted. The accused was released on bail on 23-4-1993 by the trial Court though his bail application was kept before Justice K. G. Shah of the High Court on 30-4-1993. Therefore, he prayed that the bail granted to the accused-Hasmukhbhai be cancelled, and false evidence given by the Doctor be examined. After being released on bail, accused-Hasmukhbhai was pressurising him to compromise the case. 9- In view of the aforesaid background, this Revision Application is required to be decided. Mr. A. J. Patel, learned Advocate appearing for respondent-accused, has raised first preliminary objection regarding the exercise of my suo motu power in this matter. He has pointed out that on 9-6-1993 I have taken cognizance in the matter and exercised suo motu power under Sec. 401 of Cr.P.C , which was not permissible in view of the business allotted by the learned Chief Justice. He pointed out that on 9-6-1993 I was sitting with my learned brother K. G. Shah, J. and detention matters were assigned to us and the criminal business was assigned to my learned brother N J. Pandya, J. Therefore, without going into any other questions, I should discharge the Rule issued by me and vacate the interim relief granted in this matter as I had no power to take up or deal with this case. In support of his submission, Mr. Patel has strongly relied upon three judgments of the Supreme Court: (1) State of Maharashtra v. Dr. Budhikota Subbarao, 1993 (3) SCC 71, (2) Pandurang v. Stale of Maharashtra, AIR 1987 SC 535, and (3) State of M. P. v. Dewadas, AIR 1982 SC 800 and also relied upon the judgment of the Full Bench of this Court in the case of Ashwinkumar v. State, 1988 (1) GLR 95 and the judgment of the Division Bench of Calcutta High Court in the case of Sohan La. v. State, AIR 1990 Calcutta 168. I would like to take up the last authority first. In the case of Sohan Lal (supra) the Division Bench of Calcutta High Court held that "Once the Chief Justice has determined what Judges of the Court are to sit alone or to constitute the several Division Courts and has allocated the judicial business of the Court amongst them, the power and jurisdiction to take cognizance of the respective classes or categories of cases presented in a formal way for their decision, according to such determination, is acquired. To put it negatively, the power and jurisdiction to take cognizance of and to hear specified categories or classes of cases and to adjudicate and exercise any judicial power in respect of them is derived only from the determination made by the Chief Justice in exercise of his constitutional, statutory and inherent powers and from no other source and no case which is not covered by such determination can be entertained, dealt with or decided by the Judges sitting singly or in Division Courts till such determination remains operative. Till any determination made by the Chief Justice lasts, no Judge who sits singly can sit in a Division Bench nor can a Division Bench be split up and one or both of the Judges constituting such Bench sit singly or constitute a Division Bench with another Judge and take up any other kind of judicial business. Even cases which are required to be heard only by a particular single Judge or Division Bench, such as partheard matters, review cases, etc., cannot be heard, unless the Judge concerned is sitting singly or the same Division Bench has assembled and has been taking up judicial business under the extant determination. Such reconstitution of Benches can take place only if the Chief Justice specially determines accordingly. The cardinal position is that before jurisdiction over the subjectmatter is exercised, the case must be legally brought before the concerned Court for its hearing and determination and that a judgment pronounced by a Court without investment of jurisdiction is void." Relying upon this judgment, Mr. Patel submitted that the exercise of my suo motu jurisdiction in this matter on 9-6-1993 was bad and, therefore, this petition should be dismissed. I fully agree with the principle laid down by the Calcutta High Court. Same view is taken by this Court and the Supreme Court. Therefore, I will not discuss those judgments cited by Mr. Patel In fact I myself have condemned the practice of the Advocates in getting their matter placed before the Judges of their choice, who were not allotted such business and rejected M.C.A. No. 5 of 1992 in C.R A. No. 753 of 1991 on 13-2-1992. But this is not that type of case. In this case if the complainant, after filing the matter in the office of this Court, had attempted to place it before roe, I would have refused to touch his matter. To take up the matter, which is filed in the office, of a baseness which is not assigned to a Judge by the learned Chief Justice is altogether a different thing, than taking up the matter by a Judge in his suo motu powers. Every Judge of this Court functions as a High Court. Therefore, in my opinion, in such type of cases any Judge of this Court can exercise his suo motu powers, irrespective of the fact whether such business is assigned to him or not, if he is prima facie satisfied. Mr. Patel was unable to point out any Rules of business or any judgment of this Court or any other Court, taking contrary view. This -is a case in which after rejection of his second bail application by the trial Court, accused filed Misc. Criminal Application No. 1417 of 1993 for bail before this Court, in which learned my brother K. G. Shah issued notice on 19-4-1993 and made it returnable on 27-4-1993. This was not brought to the notice of the learned trial Judge by the accused in the bail application Ex. 29 dated 23-4-1993 and the learned Judge in most unusual manner grained bail to the accused on the same day without hearing the learned A.P.P. On 22-4-1993 the learned Judge proceeded to record the evidence of Dr. Purandare in undue haste, when that Doctor was not at all concerned with the case nor he was summoned nor his statement was recorded by the police. In his cross-examination one important answer was elucidated in favour of the accused by his Advocate, which was sufficient to destroy the prosecution case. Dr. Jani was not available for a day only. It was the first day of the case, inspite of the application of the learned A.P.P. to adjourn the case on the ground of sickness of important witness like complainant, the learned Judge did not grant any time and compelled the A.P.P. to examine Dr. Purandare. Under the aforesaid circumstances, the complainant, who is the unfortunate brother of deceased Pushpaben, with the hope of getting justice from this Court approached me and my learned brother K. G. Shah, J. by a registered letter sending copies of the applications Exh. 26 and Exh- 29 and the orders passed by the trial Court below it with a request to take up the matter and a justice to the departed soul. After going through the contents of [he case, I was more than convinced that this Court should exercise its suo motu power in this case and, therefore, I exercised my suo motu power under Sec. 401 of Cr. P. C. on 9-6-1993, eventhough this business was not assigned to me. And, in absence of any rules or any judgments of this Court or any other Court contrary, it cannot be said that order dated 9-6-1993 passed by me was without jurisdiction. As stated earlier, going through the contents of the application and the orders passed below that, I was prima facie convinced that not only the orders passed by the learned Judge below both the applications Exh. 26 and Exh. 29 are wholly unsustainable but there is something fishy in the matter. Therefore, Records and Proceedings were called for by me and going through the Records and Proceedings of the case, many more things have come out. As stated earlier, I have recorded the statements of Dr. Purandare, Dr. Jani and now today of learned A.P.P. Mr. Vaidya and 1.0. Mr. M. N. Chauhan P.S.I, (now P.I.). 1.0. has stated that he was very much present before the Court on 22-4-1993 when the Sessions Case was fixed but without calling out the name Dr. of Purandare, he was examined by the Court of which he was not even aware. What actions are to be taken in the matter, I will decide later on. All these facts have been stated with a view to rule out the preliminary objection raised by Mr. Patel.

(2.) . Mr. Patel raised second preliminary objection that before passing adverse order against the respondent-accused, he was required to be beard by this Court under Sec. 401(2) of Cr. P. C. and without hearing the accused this Court has cancelled the order passed by the trial Court granting bail to the accused. Hence, the order dated 9-6-1993 passed by this Court should be revoked. It is true that straightway Rule was issued and the order passed by the learned Judge was stayed and the 1.0. was directed to arrest the respondent-accused, but it was an interim order and not the final order. If without hearing the respondent-accused I had allowed the Revision Application and cancelled the bail, then Mr. Patel perhaps would have been justified in making this submission. By my order dated 9-6-1993 I had only .stayed the operation of the order granting bail to the accused and consequence thereof 1.0. had to be directed to arrest the accused, by issuing rule in the matter. After, bearing the accused I would have discharged the rule and maintained the order of granting hail to the accused, if I was convinced by Mr. Patel about the legality of the order passed by learned Judge. I have fully heard Mr. Patel in this Revision Application regarding the preliminary objections and also on other submissions on merits, before setting aside the bail order passed by the trial Court in favour of the accused.

(3.) . What order should be passed about the evidence of Dr. Purandare, which has come on record at Exh. 12? Should it be de-exhibited or not ? Dr. Jani, who had examined the deceased Pushpaben, was very much available for his evidence. His evidence would be in the nature of the primary evidence and would he the best evidence, Mr. Desai, learned Advocate appearing for Dr. Purandare, has fairly stated that in the circumstances in which, namely, (1) no summons was issued against him, (2) his name was not shown in the charge-sheet, (3) deceased Pushpaben was not treated by him nor P. M. report was made by him, (4) his statement was not recorded by the police, (5) the summons was issued in the name of Dr. Jani, which was duly served upon him and who was otherwise available except on 22-4-1993, evidence of Dr. Purandare should be de-exhibited. Mr. Bukhari, learned A.P.P. has fully supported the submission made by Mr. Desai. However, Mr, Patel learned Advocate appearing to- the respondent-accused, vehemently objected about deexhibiting the evidence of Do Purandare at this stage. Though he agreed that the evidence of Dr. Purandare was in the nature of a secondary evidence. This was not a case where Dr. Jani, who examined deceased Pushpaben, had either left the country or was not available for a long time so that another Doctor, knowing his signature could have been examined to prove the certificate issued by him. In fact, the learned trial Judge proceeded with undue haste in recording the evidence of Dr. Purandare. There are contradictory statements made by Dr. Jani, Dr. Purandare, learned A.P.P. Mr. Vaidya, 1.0. Mr. Chauhan. The observations made by the learned Judge himself in his order below application Exh. 26 and Exh. 28 are contrary to what has been stated by them before this Court. Therefore in the peculiar facts and circumstances of the case, the evidence of Dr. Purandare, which has come on record as per Exh. 12, has to be dc-exhibited. Accordingly, it is ordered to be de-exhibited. The trial Court shall now proceed to issue summons against Dr. Jani, Dr. Jani, who is present before this Court today, has assured this Court that he will remain present before the Court and depose as and when he is summoned by the trial Court. From the record of the case it also appears that alongwith one important witness Mahmoodmiya Malek- Executive Magistrate Exh. 24, two other punch witnesses have been examined. The learned Judge should have at least given one opportunity to the prosecution to keep Dr. Jani present before him, particularly when Dr. Acharya, who had first examined the deceased Pushpaben, was himself not available due to sickness and other important witnesses like complainant and others were also not present. It is also made clear that Certificate Exh. 13, which has been exhibited in the evidence of Dr. Purandare, shall have to be again brought on record in the evidence of Dr. Jani and exhibited again.