ORDER : 1. By way of the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), the petitioner has prayed for quashing and setting aside the order dated 30.03.2017 passed below Exh.12 in CBI Criminal Misc. Application No. 141 of 2015 in CBI Sessions Case No. 1 of 2013 and all other consequential orders discharging qua the petitioner. 2. Mr. Virat Popat, learned advocate for the petitioner submits that the prosecution is to the effect that one Shabbir Jamal Mehtar filed Special Criminal Application No. 963 of 2007 before this Court and in the proceedings, direction was issued for registration of FIR, and to, carry out the investigation in connection with the alleged encounter of Sadiq Jamal-brother of the petitioner. The investigation culminated into chargesheet, which alleges that the encounter of Sadiq Jamal Mehtar was a pre-planned conspiracy and stage managed. 2.1 Advocate Mr.Popat submits that the allegations are to the effect that the person viz. Tarunkumar Amrutlal Barot named as accused No. 8 in the chargesheet, alongwith other staff took the custody of the deceased from Mumbai on 02.01.2003 and confined the deceased in Bungalow No. 15, Duffinala, Shahibaug, Ahmedabad till 12.01.2003; in the intervening night of 12.01.2003, it is alleged that the deceased-Sadiq Jamal Mehtar was killed in stage managed encounter. 2.2 Referring to the chargesheet, Advocate Mr.Popat submitted that the only role attributed to the present petitioner is of being with other PSI and PI and P.C. on 12.01.2003 in the alleged part of preplanned conspiracy and all had discussed the modalities of elimination of Sadik Jamal in a stage managed encounter at Sai Baba Complex area, Galaxy Cinema, Naroda, Ahmedabad. 2.3 Advocate Mr.Popat submits that the persons, who were alleged to have led together are discharged by the orders of the trial Court, and even the accused, who having graver role than of the present petitioner have been discharged. 2.3 Advocate Mr.Popat submits that the persons, who were alleged to have led together are discharged by the orders of the trial Court, and even the accused, who having graver role than of the present petitioner have been discharged. The only observation which the learned trial Court Judge made while rejecting the application of discharging the present petitioner, to the contention raised that no role has been attributed to the present petitioner at the time of commission of offence, except that he was present there only as a team member, is that, unless the presence of the petitioner, no team could be formulated and that there is a charge of criminal conspiracy, and the petitioner presence as a team member is required to be looked into at the time of framing of charge and the probative value of the materials on record cannot be ignored. 2.4 Advocate Mr.Popat submits that since all other accused, who were also to be considered as the team member are discharged from the case, there would not be any question of any team, to constitute an offence of criminal conspiracy. 3. Countering the arguments, Mr.R.C.Kodekar, learned Special Public Prosecutor for respondent No. 1-CBI submitted that in Para 9 of the chargesheet, role of the present petitioner has been laid down, who was a member of the team in a pre-planned conspiracy on 12.01.2003. 3.1 Referring to the Affidavit of the Police Inspector, CBI, Mr.Kodekar submitted that the revision application challenging the order dated 30.03.2017 passed by the Special Judge, CBI, Court, Ahmedabad in CBI Criminal Misc. Application No. 141 of 2015 in CBI Sessions Case No. 1 of 2013 was rejected, and the chargesheet was filed on 21.12.2012 against eight accused. 3.2 Mr.Kodekar submits that it is the case of the prosecution that the complainant-J.G.Parmar in his complaint dated 13.01.2003 stated that on 12.01.2003 an information was received by Crime Branch, Ahmedabad that Sadik Jamal was to come near Jai Ambe Traders, Sai Baba Complex, Galaxy Cinema, Naroda, Ahmedabad to meet his associate at about 23.30 hours. The Crime Branch Officers kept a watch near the said place and at about 1.15 hours on 13.01.2003, when efforts were made to apprehend Sadik Jamal, he opened fire on the police party. The Crime Branch Officers kept a watch near the said place and at about 1.15 hours on 13.01.2003, when efforts were made to apprehend Sadik Jamal, he opened fire on the police party. The police Officers namely J.G.Parmar and I.A.Saiyed, then fired five to six rounds from their respective service revolvers in self defence, and as a result of their firing, Sadik Jamal got injured, thereafter was admitted to Civil Hospital, Ahmedabad, where he was declared dead by the Doctor. 3.3 Advocate Mr.R.C.Kodekar submits that the FIR C.R.No. I-3 of 2003 was registered before DCB Police Station against Sadik Jamal and others; the investigation of the case was carried out by the officials of DCB P.S and after conclusion of the investigation, ‘A Summary’ report was filed by DCB PS in the Court of Metropolitan Magistrate, and the said report was accepted by the learned Court on 12.01.2005. 3.4 Advocate Mr.Kodekar states that Sabbir Jamal Mehetar, brother of the deceased, filed a Special Criminal Application No. 963 of 2007 before this Court praying for investigation by CBI or any other agency, and, by order dated 16.06.2011, CBI was directed to take up the investigation relating to the killing of Sadik Jamal on 13.01.2003 by police officers/officials of Crime Branch, Ahmedabad. 3.5 Thus, Mr.Kodekar submits the pursuant to the directions of this Hon’ble Court, CBI registered an FIR vide case RC-3(S)/2011-SC-III, New Delhi on 15.07.2011, conducted the investigation, after conclusion of the investigation, CBI filed chargesheet against eight persons including the present petitioner for the offence punishable under Sections 120-B read with sections 341, 342, 343, 302 and 203 of the Indian Penal Code. 3.6 Mr.Kodekar submits that the petitioner had never disputed the FIR, with regard to his presence at the place of encounter and participating in the encounter. The complaint of Shri J.G.Parmar and IC. R.No. 3 of 2003 of DCB Police Station are important documentary evidence in the chargesheet filed by the CBI. 3.7 Mr.Kodekar submits that witness-Devjibhai Jograna (PW-36) had reached at the place of occurrence at around 3.00-3.15 a.m. while encounter took place at around 1.15 a.m. the witness had stated about the persons, who were present there, when he reached the place of occurrence and further Mr.Kodekar stated that the FSL report corroborated that the firing on Sadik Jamal was from the close range. 3.8 Mr.Kodekar contents that the motive for committing a crime cannot be conspicuously found and as per the settled position of law, many man join a conspiracy by ‘words’ or by ‘deeds’, and to support that submissions, Mr.Kodekar has relied on the judgment of Firozuddin Basheeruddin and Others vs. State of Kerala, (2001) 7 SCC 596 . Further stated that Section 161 of the Gujarat Police Act and Section 197 of the Criminal Procedure Code, would not be applicable in the case, as is not an official act under their service, as being a case of fake encounter. It is further stated that during the course of investigation, sufficient evidence were collected to establish that the alleged encounter was fake, and that the role of each accused cannot be bifurcated at this stage in case of criminal conspiracy punishable under Section 120B of the Indian Penal Code. 3.9 As per Advocate Mr.Kodekar, the settled position of law is that at the stage of framing of charge under Section 228 of the Criminal Procedure Code, while considering the discharge application filed under Section 227 of the Criminal Procedure Code, it is not for the Magistrate or a Judge concerned to analyze all the materials on record, nor would have to decide the pros and cons, reliability or acceptability of the materials and it is only during the stage of framing of charge by evaluating the evidentiary value of the material produced, final decision would have to be made and thus, supporting the observations made by the Special Judge, CBI in order below Ex.12 in CBI Criminal Misc. Application No. 141 of 2015 in CBI Sessions Case No. 1 of 2013, submitted that the learned trial Judge has rightly rejected the discharge application. 4. Countering the arguments, Advocate Mr.Popat submits that the person Devjibhai Jogarana, who has been named as PW-36 had reached at the place of occurrence at around 3.00-3.15 a.m., has not named the present petitioner; while others who have been named by him, have been discharged by the Court and those orders have not been challenged and since they have been discharged, there would not be any case, now to draw for criminal conspiracy. Therefore, on the basis of parity, he urges before this Court to allow the petition. 5. Therefore, on the basis of parity, he urges before this Court to allow the petition. 5. The accused discharged by the Court below are as under: (i) Jaysinh Gulabsinh - accused No. 1 fired on the deceased; abated, since deceased. (ii) Ganshyamsinh Hathisinh Gohil-Accused No. 5, discharge granted by order dated 20.12.2022 passed below at Ex.221 (iii) Ajaypalsingh Siyaram Yadav-Accused No. 6, discharge granted by order dated 24.11.2020 passed below at Ex.192 & 195. (iv) Chhatrasinh Manubha Chudasama-Accused No. 7, discharge by order dated 20.02.2021 passed below at Ex.209 & 211. (v) Tarunkumar Amrutlal Barot-Accused No. 8, discharged by order dated 20.02.2021 passed below at Ex.209 & 211. 6. The case of the petitioner is that at the initial stage, there was ‘A Summary’ report by DCB Police Station; since no case was found against all the accused, the said report was accepted, which was never challenged by any of the agency or any other person. Further, there is no role attributed to the present petitioner of having brought the deceased from Mumbai to Ahmedabad. It is also stated that author of the complaint, before the DCP G.J.Parmar was made an accused No. 1, the matter stood abated against him because of his death. The case against him was that the deceased Sadiq Jamal had fired on the police, therefore, retaliation led to encounter in defence of the police official. It is stated by Mr.Popat that there were inputs, from the higher officials, of the deceased being a threat to the integrity and sovereignty of the Nation. In support his submission, Mr.Popat has relied on the following: (a) statement of Mr.Anupam Gehlot, the then Superintendent of Police, Bhavnagar to indicate that the deceased was trained militant, the inputs were received from the reliable sources. (b) On record it had come that the deceased was staying with one Tariq Parvin and was working as associate of Dawood Ibrahim. (c) SIB also opined deceased being a trained militant. (d) That the person alongwith whom deceased stayed in Dubai, disclosed before the Intelligence Bureau, that deceased used pseudonyms. (e) Deceased has visited Khokhra Maninagar BJP Office, to assassinate the then Chief Minister. 7. It is also stated that the first version of the incident was given by Mr.J.G.Parmar that the deceased had opened fire upon the police party which resulted into retaliatory firing, and therefore, deceased sustained injuries. (e) Deceased has visited Khokhra Maninagar BJP Office, to assassinate the then Chief Minister. 7. It is also stated that the first version of the incident was given by Mr.J.G.Parmar that the deceased had opened fire upon the police party which resulted into retaliatory firing, and therefore, deceased sustained injuries. It is also submitted that FSL conclusively established that the deceased hands were covered with gunpowder residues. It is also submitted that the deceased being threat to the nation had opened fire upon the police party. It is also urged that the petitioner had no personal enmity or motive to eliminate the deceased and there is nothing in the chargesheet to indicate that the present petitioner was aware about the conspiracy by the co-accused in respect of alleged case of eliminating the deceased-Sadiq Jamal. It is submitted that being a member of the team, to apprehend the accused for the purpose of interrogation, does not render him liable for the offence. Further stated that incident has occurred on 13.01.2003 and brother of the deceased had come up with a case on 10.05.2007 that it was stage managed encounter. Thus Advocate Mr.Popat has placed reliance on Section 161 of the Gujarat Police Act, to contend that in respect of any wrong by the police officer purported, to have been done under colour or in excess of any such duty or authority, shall have to be brought to notice within one year from the date of the alleged act, and further stated, that sanction under section 197 of the Criminal Procedure Code has not been received to prosecute the petitioner. 8. Advocate Mr.Popat has relied on the judgment in the case of N.K. Patel vs. State of Gujarat, (2000) 3 GLH 230, this Court has observed as under: “40. ...The sub-section imposed a ban on the Court from entertaining a prosecution for an offence falling within the purview of subsection and so committed by a police officer, if the prosecution was instituted more than one year after the date of the act complaint off. The only exception to the said ban is, if the complainant gets sanction from the State Government to prosecute the police officers, aforesaid period of one year would be enlarged to two years. The only exception to the said ban is, if the complainant gets sanction from the State Government to prosecute the police officers, aforesaid period of one year would be enlarged to two years. Offence falling within the purview of sub-section relate to those acts done “under the colour or in excess of any duty or authority as the aforesaid.” The sub-section then widens the net little further bringing within its swift those offences committed though any act done which are “of the character aforesaid.” The character “aforesaid” in sub-section is evidently with reference to what is mentioned in section 159 and 160 of the said enactment. Those provision afford an absolute immunity to public servant from any penalty or liability to pay damages in respect of any, act done in good faith. In pursuance of or intended pursuance of “any duty imposed or any authority conferred on him by any provision of this Act or any other law for the time being in force or any Rule, order or direction made or given thereunder.” Such absolute immunity is not afforded in respect of any offence or wrong alleged to have been done by such public servant, if it was done “under colour or excess of any such duty or authority as aforesaid.” Nonetheless the said statute has fixed a time limit for initiation of prosecution proceedings in such cases against the public servant. If prosecution proceedings were not initiated within such time limit, they cannot be commenced thereafter. That similar ratio has been laid down by the Hon'ble Apex Court in the case of Viipaxappa vs. State of Mysore, AIR 1963 SC 849 .” 9. Advocate Mr.Popat has also relied on the judgment of Om Prakash vs. State of Jharkhand, (2012) 12 SCC 72 , the Hon’ble Supreme has observed in Para 29 which is as under: “29....Unless unimpeachable evidence is on record to establish that their action is indefensible, mala-fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. Plea regarding sanction can be raised at the inception.” 10. Advocate Mr.Popat has further relied on the judgment of State of Himachal Pradesh vs. M.P. Gupta, (2004) 3 SCC 349 , wherein this Court has observed in Para 17, which reads thus: “17. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. Plea regarding sanction can be raised at the inception.” 10. Advocate Mr.Popat has further relied on the judgment of State of Himachal Pradesh vs. M.P. Gupta, (2004) 3 SCC 349 , wherein this Court has observed in Para 17, which reads thus: “17. We may mention that Law Commission in its 41st Report in Para 15.123 while dealing with Section 197 as it then observed “it appears to us that the protection under section is needed as much after retirement of public servant as before retirement. The protection afforded by the said section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant cease to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by section 197 is the public interest in seeing that official act do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of expediency of prosecuting any public servant.” 11. The challenge is given to the order dated 30.03.2017 passed below at Ex.12 in CBI Criminal Misc. Application No. 141 of 2015 in CBI Sessions Case No. 01 of 2013, learned Special Judge while rejecting the application has observed in Para 24 and 25 which reads as under: 24. The purpose of Sec.227 and 228 of the Cr.P.C., is to ensure that the Court should be satisfied that the accusation made against the accused is not frivolous and that there is some material for proceeding against him, here at this stage, it is argued by the learned Advocate for the applicant that no role has been attributed to the present applicant at the time of commission of offence except he was present there only as a team member. Then under such circumstances, the question would arise that unless his presence, no team has been formulated and there is also a charge of Criminal Conspiracy, so applicant's presence as a team member is required to be looked into at the time of framing of charge and the probative value of the material on record cannot be ignored. 25. Then under such circumstances, the question would arise that unless his presence, no team has been formulated and there is also a charge of Criminal Conspiracy, so applicant's presence as a team member is required to be looked into at the time of framing of charge and the probative value of the material on record cannot be ignored. 25. In view of the above discussion, after considering the charge-sheet and the documents submitted therewith by the prosecution and also considering the arguments of the Ld. Advocates for both the parties and keeping in view the law laid down, I am of the opinion that there is sufficient prima-facie material to frame the charge against the applicant accused. Thus, the application for discharge filed by the present applicant deserves to be rejected. 12. The co-accused as referred hereinabove, have been discharged by the Court below and the said order has not been challenged by the CBI. The role of the present petitioner attributed in the chargesheet is as under: As a part of pre-planned conspiracy, on 12.01.2000 evening, PI J.G Parmar along with his other colleagues, namely, PI I.A Saiyed PI K.M. Vaghela PSI R.L Mavani PSI G.H. Gohil, PC Ajaypatsingh Siyaram Yadav and PC Chhatrasinh Manubha Chudasama discussed the modalities of elimination of Sadik Jama in a stage managed encounter at Sai Baba Complex area, Galaxy Cinema, Naroda, Ahmedabad. Accordingly, PSI G. N. Gohil visited Bungalow no. 15, Dafnala, Shahibaug, Ahmedabad at about 20.00 hrs. and then at about 22.00 hrs., he accompanied by other team members took Sadik Jamal from Bungalow no. 18 to Sai Baba Complex area, Galaxy Cinema, Naroda, Ahmedabad in the tempo traveler Police Vehicle no. P-170. At about 22.00 hrs. PI I.A Saiyed accompanied by other team members left Crime Branch office, Gaikwad Haveli, Ahmedabad in official vehicle P-137 (Regn No. GJ 1G 2/25 Ambassador car) whereas Pl J.G. Parmar accompanied by other team members left the office in a private Tata Sumo vehicle (Regn. No. GJ 10F 3855) at about 22.30 hrs, they all reached near Sai Baba Complex, Galaxy Cinema Naroda Ahmedabad. 13. The facts of the case suggests that witness Shri Devjibhai Jogarana (PW-36), who has been stated, that while encounter took place at around 1.15 a.m. he had reached at around 3.00-3.15 a.m., but he has not named the present petitioner. No. GJ 10F 3855) at about 22.30 hrs, they all reached near Sai Baba Complex, Galaxy Cinema Naroda Ahmedabad. 13. The facts of the case suggests that witness Shri Devjibhai Jogarana (PW-36), who has been stated, that while encounter took place at around 1.15 a.m. he had reached at around 3.00-3.15 a.m., but he has not named the present petitioner. PW-36 was the first to reach the place of incident, he has narrated about the other accused presence, who are now discharged but has not stated that the present petitioner was present there. Co-accused no. 4, 5, 6, 7 & 8 have been discharged. The accused nos.4, 6 & 7 have been attributed to the similar role as being team member. While accused No. 5, with graver role had been alleged to have taken the deceased from Bunglow No. 15, Shahibag to Galaxy Cinema, Naroda, which is stated to be the place of encounter. The said Order has not been challenged by the CBI. The orders had been challenged by the brother of the deceased, but, thereafter withdrawn, by the complainants, the details are as an under: Special Criminal Application No. 761 of 2022 has been withdrawn on 25.04.2022, Special Criminal Application No. 763 of 2022 on 25.04.2022 and Special Criminal Application No. 6322 of 2021 have been withdrawn on 25.04.2021. 14. In the case of Yogesh alias Sachin Jagdish Joshi vs. State of Maharashtra, (2008) 10 SCC 394 , the Hon’ble Supreme Court has observed in Para 15 and 16, which reads as under: “14. Chapter XVIII of the Code lays down the procedure for trial before the Court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is “sufficient ground” to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him. 15. 15. It is trite that the words “not sufficient ground for proceeding against the accused” appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar vs. Ramesh Singh and Prafulla Kumar Samal].” 15. In this case, the facts are placed in the chargesheet against the present petitioner, who was present alongwith other police staff. While no other further act is attributed to the present petitioner; witness who had first appeared at the scene of offence, has not named present petitioner nor has stated the presence of the present petitioner at the place of incident. There is no allegation that the applicant had taken any part in the alleged act, the meeting of police officials per se cannot be considered as any conspiracy as generally police officials are supposed to perform as team, formation of team itself would not lead to inference of any criminal conspiracy. Act so alleged does not disclose any criminal act of the concerned person; meeting of minds of two or more persons (conspirators) doing illegal act would be sine qua non for criminal conspiracy. All the acts of police, cannot be considered beyond legal duties unless under such agreement any illegal act has been committed or act by illegally means. No such act has been attributed to the present petitioner. All the acts of police, cannot be considered beyond legal duties unless under such agreement any illegal act has been committed or act by illegally means. No such act has been attributed to the present petitioner. Accused No. 4, 6 & 7, who were alleged to be team member having similar role as of the petitioner are discharged. Further all the referred co-accused have been discharged and those orders though challenged were subsequently withdrawn by the brother of the deceased. 16. In view of the above, considering the facts and circumstances of the case and the ratio laid down in the aforesaid judgments, the present application is allowed. The impugned order dated 30.03.2017 passed below Exh.12 in CBI Criminal Misc. Application No. 141 of 2015 in CBI Sessions Case No. 1 of 2013 is hereby quashed and set aside and all other consequential order is also set aside qua the present petitioner. The petitioner’s application being CBI Criminal Misc. Application No. 141 of 2015 in CBI Sessions Case No. 01 of 2013 is hereby allowed. The petitioner is hereby discharged from all the charges in connection with the CBI Sessions Case No. 01 of 2013. The petition is disposed of, accordingly.