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2023 DIGILAW 498 (GUJ)

Sanjiv Rajendra Bhatt v. State of Gujarat

2023-03-23

GITA GOPI

body2023
ORDER : 1. The petition, under Section 401 read with 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), is filed challenging the order dated 25.1.2023 passed below Exh.508 and Exh.529 i.e. the deposition of witness no.16 in Special NDPS Case no.3 of 2018 by the learned Special Judge, Banaskantha urging that the Hon’ble Judge has forbidden the petitioner to ask certain relevant questions during the cross-examination of the said witness and therefore, prayer is made to direct the learned Trial Court to recall the witness no.16 so as to enable the petitioner to further cross-examine the said witness in Special NDPS Case no.3 of 2018 pending before the learned Special Judge, Banaskantha. 2. Learned Senior Advocate Mr. K.B. Anandjiwala for the petitioner stated that the prayer is made to recall the witness no.16 only for the limited purpose of establishing a contradiction by using the previous statements of the same witness recorded earlier and to allow the petitioner–accused to ask the pending question on page no.120 of the said witness and further subsequent questions which may arise subject to the answers of the depositions of the said witness to the said question. 3. Mr. Anandjiwala, referring to the record submits, that the petitioner is accused no.2 in NDPS Case and witness no.16 - Ramanbhai Parsottamdas Patel whose examination-in-chief was recorded before the concerned Court came to be concluded on 3.1.2023 and soon the cross-examination commenced, it continued on 4.1.2023, 10.1.2023, 11.1.2023, 12.1.2023, 17.1.2023, 18.1.2023, 19.1.2023, 21.1.2023 and finally got concluded on 25.1.2023. 4. Mr. Anandjiwala submits that during the course of cross-examination of the witness, a question was put forth by the defence advocate to establish the contradiction while the learned Public Prosecutor raised an objection to the said question, and on hearing the parties to the question of law, the learned Judge disallowed the defence advocate of the petitioner to ask or contradict the said question with an observation in the deposition on 25.1.2023 that the objection raised by the Public Prosecutor is sustainable. Mr. Anandjiwala submitted that thereafter, the cross-examination further proceeded to be concluded on the same day. 5. Mr. Mr. Anandjiwala submitted that thereafter, the cross-examination further proceeded to be concluded on the same day. 5. Mr. Anandjiwala further stated that since the objection raised by the learned Public Prosecutor was confirmed, the defence advocate gave an application at Exh.529 on 25.1.2023, since they wanted to challenge the issue before this Court on the ground of involvement of question of law and therefore, prayer was made before the learned Trial Court Judge requesting for time to postpone/defer the further cross-examination of the said witness, which as per the record came to be rejected by the learned Trial Court Judge. 6. Referring to provision of Section 145 of the Evidence Act, Senior Advocate Mr. Anandjiwala submitted that the request was made to the learned Trial Court Judge to contradict witness no.16 – R.P. Patel in connection with his previous statement to establish the contradiction by producing the evidence of said witness who was a Police Sub-Inspector raiding party at the relevant point of time in connection with Prohibition CR nos. 51/1996 to 54/1996, which came to be registered at Agthala Police Station, Banaskantha at the time when the FIR in connection with the impugned matter came to be registered. Mr. Anandjiwala submits that the evidence of the said witness no.16 in connection with the aforesaid FIRs and the averments made in Paragraph 4 of the examination-in-chief in Special NDPS Case no.3 of 2018 before the learned Special Judge, Banaskantha was contradictory in nature and the said deposition was required to be considered/acknowledged by the said witness and was to be brought on record in confirmity with the provisions of Section 145 of the Evidence Act and thus, submits that for a fair trial, Exh.529 was given which was rejected on 25.1.2023 and according to Mr. Anandjiwala, the reasoning given for rejecting the application was shocking, which observed that the witness is resident of USA thus, further cross-examination was ordered to be proceeded. 7. Referring to the additional grounds raised on behalf of the petitioner, Mr. Anandjiwala, the reasoning given for rejecting the application was shocking, which observed that the witness is resident of USA thus, further cross-examination was ordered to be proceeded. 7. Referring to the additional grounds raised on behalf of the petitioner, Mr. Anandjiwala submitted that the case of the prosecution was that the petitioner had called the said witness, Police Sub-Inspector – R.P. Patel on previous day i.e. on 29.4.1996 morning at about 8.30 at his bungalow and had asked the witness to verify the information which he had received with regard to storage of opium at Sherpura Dhani, the village in jurisdiction of Agthala Police Station, and instructed him to procure the sample of the opium if it was found there. As per the prosecution case, the witness PSI – R.P. Patel informed the petitioner that he was busy with the investigation of another case and therefore, had asked the petitioner to send Malabhai. The said police constable- Malabhai, now deceased, was called by R.P. Patel at the residence of the petitioner who in turn asked Malabhai to go to Agthala and verify the information, which he had received with regard to storage of opium and had given him Rs.25,000/- in presence of the witness PSI – R.P. Patel, for collecting the sample and bringing it to Palanpur if at all found there. As per the prosecution case, witness – R.P. Patel had asked Malabhai to keep him informed after completion of his work. 8. Mr. Anandjiwala stated that as per the prosecution case, Malabhai Rabari informed the petitioner that he had verified the information and had procured sample of opium and at 6.00 p.m., Malabhai met witness–R.P. Patel at his office and thereafter, on 29.4.1996 in the evening, R.P. Patel and Malabhai both had gone to the bungalow of the petitioner and in presence of R.P. Patel, the witness had handed over the sample to the petitioner at Palanpur. The prosecution case alleges that PSI – R.P. Patel was present with Malabhai when the sample was handed over to the petitioner. 9. It is further the case of the prosecution that on 30.4.1996, subsequent to the information/instructions given to one P.I. Mr. The prosecution case alleges that PSI – R.P. Patel was present with Malabhai when the sample was handed over to the petitioner. 9. It is further the case of the prosecution that on 30.4.1996, subsequent to the information/instructions given to one P.I. Mr. I.B. Vyas who, now under the order of the Court turned to be an approver, carried out the raid at Lajwanti Hotel in the morning of 30.4.1996 and according to the prosecution case, a packet of opium weighing 1.015 kg. came to be recovered from room no.305 of hotel and thereafter, FIR came to be registered at Palanpur City Police Station vide CR no. III-216/1996. Late in the evening, the petitioner called witness PW16 – R.P. Patel and asked him to go to Deesa Sherpura Dhani with Malabhai and carry out the raid at the place visited and verified by Malabhai. The case of the prosecution that late evening of 30.4.1996, the present petitioner, called P.I. I.B. Vyas to his residence and told him to meet PW16 – R.P. Patel who had verified the information pertaining to Sherpura Dhani and asked him to carry out raids at various places, and under instructions from the petitioner, P.I. Vyas and the staff proceeded towards Deesa and met Police Sub-Inspector – R.P. Patel at one petrol pump. It is further alleged that they coordinated and carried out raids at Sherpura Dhani, wherein they recovered large quantity of opium from 4 different locations, for which 4 different FIRs came to be filed on 1.5.1996 at Agthala Police Station vide Prohibition CR nos. 51/96, 52/96, 53/96 and 54/96, wherein P.I. I.B. Vyas is the complainant in CR no. 52/96, while PW16-PSI – R.P. Patel is the complainant in CR nos.51/96, 53/96 and 54/96. 10. Mr. Anandjiwala stated that all the 4 FIRs were investigated by PW16, Police Sub-Inspector - R.P. Patel. 11. It is the case of the prosecution that the sample which came to be collected by Malabhai Rabari on 29.4.1996 was used and planted at Hotel Lajwanti, at the say of the present petitioner and a false and concocted FIR came to be filed at Palanpur City Police Station vide CR no.216/96 on 30.4.1996. 12. According to Mr. 11. It is the case of the prosecution that the sample which came to be collected by Malabhai Rabari on 29.4.1996 was used and planted at Hotel Lajwanti, at the say of the present petitioner and a false and concocted FIR came to be filed at Palanpur City Police Station vide CR no.216/96 on 30.4.1996. 12. According to Mr. Anandjiwala, a false incident on 29.4.1996 came to be framed only to implead the present petitioner as an accused and to help the actual perpetrator of the crime to escape the offence and thus, stated that to substantiate this stand, the petitioner had preferred a petition for recalling the material witness PW16-R.P. Patel who happened to be an accused in FIR registered by Sumersingh vide CR no.403/1996 registered with Kotwali Police Station, Pali, Rajasthan and also was the accused of the present case i.e. CR no.216/96. 13. The facts suggest that “A” summary report was filed before the Special Court for the offence registered vide CR no.216/96 investigated by P.I. I.B. Vyas, who is now approver to the matter. Certain orders and judgments of this Court have been referred by the learned Public Prosecutor Mr. Amin and as per the order passed in Special Criminal Application no.1079 of 1998 with Special Criminal Application no.680 of 1999 on 3.4.2018, prayer was made in Special Criminal Application no.1079 of 1998 to direct the State of Gujarat to hand over the investigation of Prohibition CR no.216/96 pending before the Palanpur Police Station to CBI and further a prayer was made to issue an appropriate writ or direction for re-investigation of the FIR registered at Kotwali Police Station, Pali bearing CR no.403/96 by the CBI or by an officer not below the rank of Director General of Police of the State of Rajasthan. 14. Thereafter, a prayer was made for recalling of the order passed in Special Criminal Application no.680 of 1999 by filing Criminal Misc. Application (Recall) no.1 of 2020, by an order dated 17.1.2020, it came to be rejected. 15. Before the High Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal Misc (Pet.) no.997 of 2020, the present petitioner had made a prayer for discontinuation of the proceedings pending before the Special Court (NDPS) and 4th Additional Sessions Judge, Palanpur, District Banaskantha, Gujarat in Special NDPS Case no.3 of 2018, which arose out of FIR no.216/1996. 15. Before the High Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal Misc (Pet.) no.997 of 2020, the present petitioner had made a prayer for discontinuation of the proceedings pending before the Special Court (NDPS) and 4th Additional Sessions Judge, Palanpur, District Banaskantha, Gujarat in Special NDPS Case no.3 of 2018, which arose out of FIR no.216/1996. The Court at Rajasthan, while rejecting the application, was of the considered opinion that Section 186 of the Cr.P.C. would be applicable only in those cases, where two or more Courts have taken cognizance of the same offence, whereas it was observed that two distinct offences were clearly made out of both complaints, one complaint which was lodged at Palanpur pertains to conspiracy and the offence related to NDPS Act by planting contraband, whereas the complaint filed by Sumer Singh Rajpurohit in Pali is in relation to the false implication in a NDPS Act arising out of a property dispute and it was further observed that in cases, which happen to be instituted within the local jurisdiction of different High Courts, then a privilege has been given to that High Court within whose jurisdiction, the proceedings first commenced, which admittedly was found to be the first complaint lodged at Palanpur City, Gujarat and subsequently, the complaint was lodged at Pali, Rajasthan by Shri Sumer Singh Rajpurohit and thus, when the proceedings commenced at PS Palanpur City, Gujarat, the relief sought by the petitioner seeking stay of the proceedings before the Court of Special Judge NDPS Cases, Palanpur was found to be without merits. Learned Public Prosecutor Mr. Amin submitted that the present petitioner, out of the property dispute, initially filed an FIR and thereafter, had filed a report under Section 169 of the Cr.P.C. against Sumer Singh and therefore, aggrieved by the false allegation, Sumer Singh had filed an FIR at Pali, Rajasthan. This court, by an order dated 3.4.2018 passed in Special Criminal Application no.1079 of 1998 with Special Criminal Application no.680 of 1999 had taken the genesis of the two FIR bearing CR no.403/1996 registered at Kotwali Police Station, Pali, Rajasthan and CR no.216/96 registered at Palanpur City Police Station, State of Gujarat into consideration and thereafter, had ordered for investigation to be conducted by the Special Investigation Team for the purpose of investigation of FIR bearing CR no.216/1996 registered with Palanpur City Police Station. 16. Mr. 16. Mr. Amin, referring to the deposition of PW16 and the order passed by the learned Trial Court, submitted that the present petition is without any merits since the observation so made by the learned Trial Court during the course of recording of the deposition had remained unchallenged as after conclusion of the cross-examination, PW17, PW18 and PW19 were examined. Mr. Amin submitted that in accordance to the direction of the Hon'ble Apex Court, the trial was required to be concluded on 31.3.2023 and thus, the learned Trial Court is mandated to follow the time bound by the order of the higher Court. This Court was also brought to notice, order dated 20.2.2023 of the Hon'ble Apex Court in petition for Special Leave to Appeal (Cri) no.2023/2023 filed by the present petitioner, which came to be dismissed with costs. 17. Mr. Amin submitted that inspite of all the progress on record, Exhs.596 and 597 were moved by the petitioner, where under Exh.597, a prayer was made under Section 319 to array PW16 as an accused along with Pravin Parmar. Mr. Amin submits that attempt is being made to derail the trial and by the order dated 25.1.2023, Exh.529 was rejected with an observation that the case is to be proceeded on day to day basis and the learned Trial Court had observed the fact that the case is to be concluded till 31.3.2023 and the learned Trial Court therefore denied to defer the recording of evidence of PW16. 18. Mr. Amin further stated that the observation in connection to Exh.338, which is stated to be the complaint of Agthala Police Station, the witness’s attention was drawn to certain contents of the complaint and thereafter, to the evidence recorded at Paragraph 4 in the chief examination and the question so raised was in fact drawing itself to the contradiction which was clear on the face of the record and self-explanatory and therefore, the petitioner, at the relevant time, had not preferred to challenge the same, but only to prolong the trial, the present petition has been filed. 19. The challenge is given to the order dated 25.1.2023 below Exh.529, where the learned Trial Court Judge had declined to defer the examination of the witness, appreciating with observation that the petitioner would have the legal right to challenge any of the orders aggrieved. 19. The challenge is given to the order dated 25.1.2023 below Exh.529, where the learned Trial Court Judge had declined to defer the examination of the witness, appreciating with observation that the petitioner would have the legal right to challenge any of the orders aggrieved. Thus, it can be considered that the said order has not violated any legal right of the petitioner. 20. The another challenge is regarding the order passed by the learned Trial Court Judge in the deposition of PW16, where objection raised by the prosecution was allowed. The said order also does not find any illegality or impropriety. Exh.338 was referred to and the contents were brought to the notice of the witness and further the deposition in Paragraph 4 of the examination-in-chief was also brought to the notice of the witness, which was questioned to be contradictory in nature. The evidentiary value of the oral evidence so recorded has to be examined by the learned Trial Court Judge during the course of the final decision of the matter. The cross-examination thereafter continued and it was concluded and later, PW17, PW18 and PW19 were examined. Enough opportunity was granted by the concerned learned Judge, even after the objection raised by the prosecution, which came to be allowed. The cross-examination is an art. The defence advocate could have brought, on his own, by way of further cross-examination any other evidence, which he had proposed to bring by way of contradiction, which could have fallen within the provisions of the Evidence Act. At present, this Court does not find any reason to interfere with the order impugned since trial is time bound to be concluded in accordance with the directions of the superior Court. The prayer for recalling the witness made before this Court cannot be granted to fill in the lacuna, as the observations with regard to Exh.338 and the deposition of the witness was brought to the notice of the witness, and it would be now for the learned Trial Court Judge to appreciate the same in accordance with the provisions of the Evidence Act. This Court does not find any merits in the application and hence, the application stands rejected.