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2011 DIGILAW 273 (GUJ)

Sursinh Bhimsinh Parmar v. State of Gujarat

2011-04-01

SONIA GOKANI

body2011
Judgment Sonia Gokani, J.—Both these revision applications under Sections 397 read with 401 of Code of Criminal Procedure are preferred by the original accused Nos. 3, 4 and 5 respectively challenging the order of learned Addl. Chief Judicial Magistrate passed on the applications of discharge being Exh.12 and Exh.10 respectively in Criminal Case No. 1349 of 2007, urging this Court to quash and set aside the impugned order and to discharge all the applicants from the criminal case mentioned herein before. It also sought to stay the further proceedings of Criminal Case No. 1349 of 2007 pending before learned Chief Judicial Magistrate, Deesa. 2. It would be required to briefly recapitulate the fact of said Criminal Case No. 1349 of 2007 so as to grasp controversy raised before this Court. 3. Present applicants one Jiviben G. Patel and Purshotam G.Patel (respectively accused Nos. 1 and 2 in the original proceedings) are the resident of village: Kant of Deesa Taluka. Both accused Nos. 1 and 2 are the original land owners who sold their land, as per the case of prosecution, bearing Survey No. 79/1 to one Shri Mukeshbhai Gadhvi, MLA, Danta vide registered sale deed dated 13th June, 2006 bearing Index No. 2861 by registering the said deed in the Sub-Registrar Office. Said sale-deed was witnessed by 2 witnesses, namely, Shakid Shaikh and Mali Somaji. One FIR came to be lodged before the Deesa Police Station bearing C.R.No.I-121/06 for the offence punishable under Sections 406, 420 and 114 of Indian Penal Code adding the offence under Sections 467 and 471 before the Court. Though, the present applicants-original accused have not been shown as accused in the FIR, on due investigation they were found arraigned as an accused in the charge-sheet placed before the Court. It is the case of the prosecution that original land owners, after getting the land converted into Non Agricultural land sub-plotted them and transferred by way of sale to the proposed society by registered sale deed dated 2.6.1984 as also to one Shri Vijaykumar Ramniklal. It is the case of the prosecution that original land owners, after getting the land converted into Non Agricultural land sub-plotted them and transferred by way of sale to the proposed society by registered sale deed dated 2.6.1984 as also to one Shri Vijaykumar Ramniklal. It is further alleged that thereafter for getting further economic benefits in unjust and illegal way, an attempt was made by hatching the conspiracy to sell the sub-plots, which were already once sold and thus, original land owners are alleged to have done criminal breach of trust and hatched a conspiracy in collusion with present applicants, Shambhaji Manaji Thakore and Kalyan Manaji Thakore. Both these applicants preferred an application vide Exh.12 whereas petitioner Sursinh Bhimsinh Parmar of Criminal Revision No. 699 of 2007 made an application vide Exh.10 of discharge. After hearing both the sides and adverting the contentions, learned Chief Judicial Magistrate by its common order dated 8th October, 2007, rejected both these applications Exh.10 and 12, thereby rejecting the request of discharge by giving detailed reasoning’s. Impugned order is in challenge before this Court. 4. This Court has heard at length, the Learned Advocate, Mr. Mehul Rathod, for all the three petitioners who has strenuously submitted that this is a pure case of discharge when the names of the present applicants do not appear in the FIR and even otherwise, roles attributed to them is of identifying the thumb impression of Jiviben in a notice issued under Section 135-D of the Land Revenue Code and nothing more. He also further pointed out from some of the statements recorded during investigation, the names of these applicants appear and what at the best can be attributed to these applicants is their having made inquiries from the original plot holders regarding their willingness to sale properties but that could surely not result into arraigning them as accused when otherwise, neither there is an overt role played by any of the applicants nor the same is attributed in the papers and prosecution. He further emphasized that prosecution’s case even if is accepted in toto, taken at its best, then also, no case is being made out to charge the present applicants. 5. As against that, learned APP, Mr. He further emphasized that prosecution’s case even if is accepted in toto, taken at its best, then also, no case is being made out to charge the present applicants. 5. As against that, learned APP, Mr. K.P. Raval, has urged this Court from papers and charge-sheet that the witnesses who have spoken about the roles of the accused must be taken into consideration at this stage, as this is not the stage for appreciating the evidence presented by the prosecuting agency. He has further emphasized that there being no illegality or impropriety in the order passed by the learned Chief Judicial Magistrate that these revision applications require dismissal. 6. As the law on discharge is very well laid down. It would be unnecessary for this Court to reiterate the entire case law on the subject. It would be sufficient to reproduce only the relevant portion in context of discharge. In the case of P. Vijayan vs. State of Kerala and Another reported in (2010) 2 SCC 398 : 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 14. The scope and ambit of Section 227 was again considered in Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijjaya, in Para 6 this Court held that: (SCC pp. 83-84) “6.....Can he marshal the evidence found on the records of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In State of Bihar vs. Ramesh Singh this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial”. 7. Section 239 of Criminal Procedure Code reproduce as follows: “239. When accused shall be discharged.—If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing”. 8. An application for the discharge when is moved before the Court, it has not to weigh in balance or evaluate the material and the documents brought before it by the prosecuting agency, as the same being potential evidence may or may not result into proving the guilt of the accused. It would be sufficient for the Court to find out that there is evidence for it to frame the charges against the accused. Absence of names of the present applicant in the FIR also, would not ipso-facto strengthen the case of discharge as essentially need of investigation is to find out as to who all can be attributed an alleged commission of crime. Absence of names of the present applicant in the FIR also, would not ipso-facto strengthen the case of discharge as essentially need of investigation is to find out as to who all can be attributed an alleged commission of crime. It emerges that during the course of the investigation, names of the present applicants have been added. 9. The case of prosecution is that the land, which was sold by way of registered sale-deed, was conspired to be once again sold to other parties for unjust benefit and in illegal manner in collusion with one another. This conspiracy was hatched at the time when the notice under Section 135-D under the Land Revenue Code was issued by the Talati concerned as entry was to be mutated in the record of such a transfer of land. Prosecution further states that this non mutation has made original owners greedy who with the help of the present applicants who were allegedly working as land brokers, hatched this conspiracy. 10. On perusal of the statements of different witnesses, it prima-facie emerges from the record that they have named all the three applicants of having approached them for selling of the impugned land as also by extending other excuses admittedly to get land. One of the applicants is also alleged to have identified one of the land owners Jiviben when she put a thumb impression on a notice received from the revenue authority under Section 165 of Bombay Land Revenue Code. They have colluded to sell the land second time to the witness- Mukeshbhai Gadhvi in spite of such glaring facts of previous sale. 11. In the event of any application for discharge being moved before the learned Magistrate in a trial of warrant case, he has to discharge the accused, after availing opportunities to both the sides if from the police report and documents, he is of the opinion that the charges against the accused are groundless, by noting down the reasons for discharge. 12. In these criminal revisions, this Court will have to consider as to whether any impropriety or illegality is committed in the order passed by the learned Chief Judicial Magistrate. 12. In these criminal revisions, this Court will have to consider as to whether any impropriety or illegality is committed in the order passed by the learned Chief Judicial Magistrate. Not only from his order but also from the report of the police and the documents produced along with the same, this Court would not be in a position to interfere with the order by stating the same to be either perverse or not having been based on the facts on record or having been passed by not having appreciated the legal provision as were otherwise required to. Learned Judge, in brief, reasoned out as to why the charges against the accused cannot be said to be groundless and did not entertain the application of discharge. From the legal provision as also the role attributed in the documents of the prosecution to each of the applicants, this Court is of the opinion that there being no ingredients of absence of suspicious grounds or insufficiency of evidence and therefore the order does not warrant any interference from this Court. 13. At the cost of repetition, it is required to be pointed out that case of the prosecution when presented before the Court at the time of entertaining the application of discharge it is not to be considered that the same may not result into conviction nor would that be the stage to conclude as to whether the same would result into acquittal. If the material and documents are such where the Court finds that the charge against the accused would be groundless, he can be discharged. But, in the event of sufficiency of evidence disclosing suspicious circumstances against accused, the application for discharge cannot be entertained. In this premise, with sufficient evidences pointed at suspicious circumstances against present petitioners, the Court has no reason not to sustain the said order of rejection of application of discharge. 14. Resultantly, both these criminal revision applications deserve dismissal and hence are dismissed. Ad-interim relief if any stands vacated. Rule accordingly stands discharged.