CHANDRAKANT SHANTILAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY this petition, exclusively under Article 227 of the Constitution, petitioner, the original complainant in Criminal Case No.439 of 1995 pending in the Court of learned J.M.F.C., Godhra, has challenged the order dated 10.02.1998 of learned Additional Sessions Judge in Criminal Revision Application No.4 of 1998 by which the order dated 01.10.1996 of learned J.M.F.C. below application Exh.565 was quashed. The said order below application Exh.565 was to the effect that the person named as one of the witnesses in the chargesheet, namely Shri Manubhai N. Naik, who is respondent No.2 herein, was arrayed as an accused under the provisions of Section 319 of the Code of Criminal Procedure (for short the 'Code'). The grounds on which respondent No.2 was summoned as an accused person by the trial court were that he was named in F.I.R. as an accused person but dropped in the chargesheet without filing by the investigation officer of a report under Section 169 of the Code and, at the time of hearing of the application Exh.565, his advocate had not remained present.

(2.) THAT order dated 01.10.1996 of learned J.M.F.C., Godhra was challenged by way of filing Criminal Revision Application by the newly joined accused person, respondent No.2 herein, and after finding the case to be an exceptional one, extensively referring to the material on record, the learned Additional Sessions Judge found it to be illegal and improper to convert the important witness into an accused person at the stage of trial where it was. Therefore, by the impugned order, the aforesaid order of learned J.M.F.C. was set aside on 10.02.1998.

(3.) WITH the above backdrop of relevant facts, learned counsel for the petitioner mainly argued that learned Sessions Judge had no authority and jurisdiction, under the provisions of Section 397 of the Code, to re -appreciate the evidence and material on record to arrive at a finding different from the one arrived at by the trial court. He, however, fairly conceded that the order below application Exh.565 of the trial court did not refer to any evidence or material in detail and what material weighed with the Court was not clear from the order dated 01.10.1996. He also conceded that the material which was available before the trial court and which was supposed to have been called and perused by the Sessions Court was not produced before this Court. He however, relied upon the judgment of the Supreme Court in Pathumma and another V/s. Muhammad [(1986)2 SCC 585] wherein it was observed that the High Court, in its revisional jurisdiction, was not justified in substituting its own views for those of the learned Magistrate on a question of fact. Learned counsel also relied upon the judgment of the Supreme Court in Duli Chand V/s. Delhi Administration [AIR 1975 SC 1960] wherein the Magistrate and the Additional Sessions Judge had arrived, on assessment of the evidence, at a concurrent finding of fact, the High Court even though justified in refusing to re -appreciate the evidence, reviewed the same in order to satisfy itself and the Supreme Court refused to interfere in an appeal under Article 136 of the Constitution. While refusing to re -appreciate the evidence for the purpose of examining whether the finding of fact concurrently arrived at by the High Court and the subordinate Courts was correct, the Supreme Court observed that it is only in rare and exceptional cases where there is some manifest illegality or grave and serious miscarriage of justice that that Court would interfere with such finding of fact.