SURESHBHAI JAYANTILAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this Revision Application under Section 397 of the Code of Criminal Procedurer 1973 (hereinafter referred to as 'the Code'), the petitioner-orig. accused No.4 (hereinafter referred to as 'the accused') has challenged the legality and validity of the order dated 7th January, 2004, passed by the learned Additional City Sessions Judge, Ahmedabad, and the framing of the charge against the accused in Sessions Case No.278 of 2003. 1(i) The accused persons facing trial in the Sessions Case have been charged for the offences punishable under Sections 302, 114 and 120(B) of the Indian Penal Code r/w. Section 135 of the Bombay Police Act. All the accused have been chargesheeted after investigation of the crime registered with Saher Kotda Police Station vide C.R. No.1-128 of 2003. The accused after his arrest was in Judicial custody for some period but at present he is on bail and this Court vide order dated 21st November, 2003, has enlarged the accused on bail, after discussing the case of the prosecution against the present petitioner in brief after filing of the chargesheet. In the list of events, tendered to the Court, it is averred that the petitioner-accused has filed an application for quashing the complaim/FIR by way of filing application under Section 482 of the Code being Criminal Misc. Application No.10067 of 2003 and on the day of filing of the present Revision Application, the said quashing petition was pending. A copy of the quashing petition, of course, is not available on record. Pending the petition filed under Section 482 of the Code, the case came to be committed to the Court of Sessions and then listed before the Ld.Additional City Sessions Judge for framing of charge. After hearing an application filed by one of the co-accused praying discharge, the Ld.Additional City Sessions Judge rejecting the said application decided for framing of charge and framed the charge. 1(ii) It is contended that the petitioneraccused was under impression that he would also get the similar opportunity to pray for his discharge and, therefore, the Ld.Presiding Judge would not take up the matter for framing of charge. The advocate of the present petitioneraccused was not present during these proceedings i.e. hearing of discharge application filed by the co-accused, etc. and the grievance of the petitioner-accused before the Court, is that after disposal of the application filed by the co-accused, the Ld.Presiding Judge took up the matter immediately for framing of the charge and thereby framed the charge. The present petitioner as per the charge framed, is facing serious charge as to involvement in a criminal conspiracy and thereby, committing offence punishable under Section 302 r/w. Section 120(B) of the Indian Penal Code.

(2.) As par the case of the prosecution, one Gautambhai K. Shah, a person residing in neighbouring area of the petitioner- accused, has been killed on 28th April, 2003 and the FIR for the said incident has been lodged by one Nilesh Jasvantlal Mehta, on early hours of 29th April, 2003 at about 00- 40 hrs. In para:3 of the present Revision Application, the petitioner-accused has narrated the details of the FIR in his own language and to appreciate the contentions raised by the Ld.Counsel appearing for the petitioner-accused, it would be beneficial to reproduce the facts disclosed by the first informant before the police, which are reproduced in the memo of the petition as under :

(3.) (i) Undisputedly, three further statements of the first informant have been recorded by the police. The first further statement is recorded immediately after recovery of cellular phone and its number from the injured/deceased. The second statement is recorded after recovery of clothes by the first informant and the third statement is recorded when certain photographs from police record were show to the first informant to identify, if possible, the person-assailants. An album of history- sheeters was shown from where the first informant identified one of the co-accused Bhavesh G Bowler i.e. orig. accused No.1 and Dharmendra @ Dharmo i.e. orig. accused No.2. 3(ii) It is the case of the prosecution that the person who met-first to Gautambhai (deceased) and offered a pouch of water was the accused No.l. The police has collected evidence and also recorded the statement of first informant on 4th May, 2003 that the cellular phone of the deceased having No.9825381810 was getting frequent calls from cellular phone having No.9825463568 (hereinafter referred to as '3568') and it is the say of the prosecution that the said telephone number is (registered in the name) of co-accused Bhavesh i.e. orig. accused No.1. The police has also investigated as to how this telephone subscriber's number was received by the accused No.1. Undisputedly, the said numbered cellular phone has been recovered from the accused No.l and the Ld.counsel appearing for the petitioner- accused has not disputed seriously this part of the evidence collected by the police. On the contrary, in response to the query raised by the Court, it is submitted that merely because the petitioneraccused was getting telephone calls on his cellular phone, he cannot be linked with the serious crime of murder and/or also should not be blamed or held responsible for committing offence of criminal conspiracy. Mr.B.M. Mangukiya, Ld. counsel appearing for the petitioner has posed a question and submitted that this very person i.e. accused No.1, has called lumber of persons on the fateful day, but as to why the police has implicated the petitioner with accused No.l and involved him in such an offence. Mr.Mangukiya has also attempted to submit before the Court that because of political status and influence in the area; especially Khadiya and other part of wall-city of Ahmedabad, he has been planted as an accused with an ulterior motive by some persons having influence in the Government without naming any leader, and further submitted that one or more of them having birth in the ministry. Mr.Mangukiya has also tried to demonstrate the political influence and the stature of the present petitioner in the public life and also in the business field.