MAHENDRA HARJIVAN LUHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition raises a somewhat unusual and peculiar situation arising from the decision of this Bench in Criminal Appeal No. 256 of 1985 (reported in 7999 (2) GLR 1086); allowing the acquittal appeal preferred against the judgment and order dated 14-11-1984 passed by the learned Additional Sessions Judge. Rajkot in Sessions Case No. 34 of 1984. acquitting the respondent of the charges of robbery, murder and receiving .stolen properly. The case of the petitioner Mahendra Harjivan Luhar is that he has been wrongly put behind bars though he was not the real accused in the Sessions Case and the respondent No. 5 Ratilal, his younger brother had been tried for the offences, under his name. According to the petitioner, he is the eldest amongst five brothers and the names of his other brothers are Himmat, Ratilal, Narsi and Ganesh. It is stated in the petition that on 12-6-1984, Rajkot Police had arrested the petitioner's brother Ratilal the respondent No. 5 herein, in connection with the offences punishable under Sees. 302, 459. 397 and 411 of the Indian Penal Code and it was the respondent No. 5 who was taken in custody during the trial of Sessions Case No. 34 of 1984 in the Sessions Court at Rajkot. It is the case of the petitioner that the petitioner's brother Ratilal who was tried in the name of Mahendra was acquitted on 14-1 1-1984 and released from jail on that day. Thereafter, the Government had preferred acquittal appeal being Criminal Appeal No. 256 of 1985. in which the accused was convicted on 23-7-1998 and when the accused was to be heard on the question of sentence. the police had wrongly produced the petitioner before the High Court on 31-7-1998. though he was not the real culprit. He has stated in the petition that this Court had asked him as to whether he had put his signature on the notice of acquittal appeal and warrant, which were issued by this Court. He has stated that as he was shocked on being arrested and produced before the Court on 31-7-1998, he was not in a proper state of mind. It is stated that the petitioner was not, at that time, in a position to understand the gravity of the situation and he was not in a position to say that he was not the real culprit. It is stated that after he was sent to jail, his brother Narsi had made representations to the jail authority that the petitioner was not the real culprit, and that his brother Ratilal the respondent No. 5 was the real culprit, against whom the offence was registered and who was tried by the Sessions Court. It is alleged that the petitioner is totally innocent and he has been languishing in jail in violation of his fundamental rights guaranteed by Arts. 19 and 21 of the Constitution. It is contended that if the evidence of identification marks and finger prints of Ratilal taken during the investigation and trial were compared, then it would be clear that the respondent Ratilal alias Mahendra alias Narendra was kept in jail custody during the trial and he was the person who had worked at Dhangadhra as a labourer in Raval Industries from 12-4-1984 to 14-11-1984. It is submitted that the fact that his younger brother Ratilal (respondent No. 5) was the accused who was behind the bars during the trial can be ascertained from the record of Rajkot jail. It is stated that the jail authorities had produced Ratilal during the trial on various dates, which can also be ascertained. The petitioner has, on these facts, sought his immediate release invoking the jurisdiction of this Court under Art. 226 of the Constitution, seeking a direction to take his brother Ratilal the respondent No. 5 who was said to be ready and willing to go behind the bars in custody. Though a compensation of Rs. 1 lac was claimed in the petition, at the hearing that claim was given up and the prayer contained in prayer clause 11(D) was deleted on 22-1-1999 and an additional prayer was made to recall the judgment and order made by this Court in Criminal Appeal No. 256 of 1985.

(2.) . This petition was initially placed before the learned single Judge on 4-9-1998 and at the request of the petitioner's Counsel, the same was adjourned to 23rd Sept. 1998. Thereafter, it appears from the record that the learned single Judge made an order on 23-9-1998, directing the respondent No. 3 to look into the matter and to file necessary report on the returnable date. i.e., 13-10-1998. Thereafter, the learned single Judge made an order on 18-11-1998 recording that in the midst of the arguments, the learned Advocate for the petitioner had requested for an adjournment. It appears that thereafter the matter was placed before the Division Bench and the First Court comprising Hon'ble the Chief Justice and Justice M. S. Shah made an order on 9-12-1998 for placing this petition before this Bench. Accordingly, this Bench was specially constituted and on 22-1-1999 the parties. appeared and the learned Counsel for the petitioner made necessary amendments in the appeal memo.

(3.) . We had, having regard to the gravity of the matter, requested the learned Additional Advocate General to appear in the matter on 19-12-1998 when the matter was first listed before us, and requested him to instruct the Department to find out the true facts as to whether the petitioner was not the accused who was tried in the Sessions Case and acquitted and against whom the purported order in the acquittal appeal was made by this Court. On 22-1-1999, Ratilal the respondent No. 5 had also remained present in the Court and had engaged his Advocate Mr. Sudanshu S. Patel. An affidavit, a copy of which was placed on record which is said to have been made by Ratilal was relied upon by the petitioner to show that Ratilal was the real culprit, and the original affidavit which was placed on record was admitted before us by Ratilal - respondent No. 5 as having been sworn by him. Ratilal the respondent No. 5 has therein stated that he was the person who was in fact tried. The learned Additional Advocate General stated that a report would be placed on record on the question as to whether the respondent No. 5 - Ratilal who was also present in Court was the real person against whom the trial was held and whether the petitioner who was produced at the time of hearing on the question, of sentence was his elder brother. We directed the matter to be posted for hearing today and had ordered the jail authorities to produce the petitioner before us. The petitioner is present and is represented through his learned Counsel, and the respondent No. 5 is also present and represented through his learned Counsel. The original record of Criminal Appeal No. 256 of 1985 has also been'placed along with the main petition as per our directions contained in the order dated 22-1-1999.