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2024 DIGILAW 1218 (GUJ)

Ashok Shambhubhai Chovatiya v. State Of Gujarat

2024-06-11

GITA GOPI

body2024
JUDGMENT : 1. Rule. Learned advocate Mr. Kartik V. Pandya and learned APP waives service of notice of Rule on behalf of respective parties. Rule is fixed forthwith. 2. The present application has been filed under section 397 and 401 read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), challenging the order dated 15.07.2019 below Exh.42 in NDPS Special Case No.4/2015 passed by Special Judge, NDPS Court, Surat. 3. Mr. Narendra L.Jain, learned advocate for the applicant submitted that five persons came to be arrested in the year 2015 by the complainant and its officers, who were detained for the alleged offence under the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as “NDPS Act”). After the investigation, the original complainant i.e. respondent no.2 herein, had preferred to file a complaint under sections 36A(1)(iv) of the Narcotic Drug and Psychotropic Substances Act,1985 (as amended). 3.1 Advocate Mr. Jain stated that initially all the relevant documents including certain material documents were not made available to the applicant and the co-accused, therefore, the applicant, vide Exh.42, on 15.07.2019, made a prayer seeking direction against the prosecution to open the case in terms of section 226 of the Criminal Procedure Code (for short ‘Cr.PC.) Mr. Jain submitted that the application came to be rejected and aggrieved by the same the applicant is before this Revision Court. 3.2 Referring to the judgment in the case of Manishaben Gajjugiri Goswami Vs. State of Gujarat, reported in 2022 (1) GLR 133 , and the judgment in case of Navinchandra Vishanuprasad Shah Vs. State of Gujarat & Anr., reported in 2014 (2) GLR 1129 , Advocate Mr. Jain submitted that the charges cannot be framed mechanically and the Court is required to follow the procedure as laid down under section 226 of Cr.P.C., so that the accused would be made aware of the case against him. 3.3 Advocate Mr. State of Gujarat & Anr., reported in 2014 (2) GLR 1129 , Advocate Mr. Jain submitted that the charges cannot be framed mechanically and the Court is required to follow the procedure as laid down under section 226 of Cr.P.C., so that the accused would be made aware of the case against him. 3.3 Advocate Mr. Jain stated that opening of the case by the prosecution is not a frivolous exercise, but it is to safeguard the interest of both the sides, and the section itself mandates that when the accused appears or is brought before the Court in pursuance of the commitment of the case under section 209, the prosecutor is required to open his case by describing the charge brought against the accused, and by stating by what evidence he proposes to prove the guilt of the accused. Advocate Mr. Jain submitted that the provision would give a clarity to the Court before framing of the charge so that the facts of the case becomes clear to the Court as well as the accused right to defend would be ensured, as he would get to know the information with regard to the case as well as, could have the knowledge of the evidence, which are proposed to be produced to prove against him. 3.4 Advocate Mr. Jain has referred to the judgment of Hon’ble Apex Court in Criminal Trials Guidelines Regarding Inadequacies And Deficiencies, IN RE Vs. State of Andhra Pradesh And Others, reported in (2021) 10 SCC 598 , to state that the courts are now required to follow directions as laid down; and further submitted that right of the accused to properly defend himself/herself can be ensured by having access to all statements, documents and material objects under sections 207/208 Cr.P.C. 3.5 Referring to para-11 of the said judgment, Advocate Mr. Jain submitted that the accused are required to be furnished with list of documents and statements, which the prosecution relies on and are kept in the dark about other material, and even material which may be in possession of the police, exculpatory in nature, assisting the accused, so that the accused may have the fair trial. Mr. Jain further stated that the Hon’ble Supreme Court has observed that the Courts in all criminal trial should hold a preliminary hearing observing the procedure under section 294 Cr.P.C. 4. Mr. Mr. Jain further stated that the Hon’ble Supreme Court has observed that the Courts in all criminal trial should hold a preliminary hearing observing the procedure under section 294 Cr.P.C. 4. Mr. Kartik V.Pandya, learned advocate for Narcotic Control Bureau submitted that the prosecution in compliance of the procedural aspect as proposed under section 226 of the Cr.P.C. had already produced a draft charge before the Court and, therefore, the very production of the draft charge would clarify the case of the prosecution. 4.1 Advocate Mr. Pandya further stated that the prosecution would certainly produce a list of documents, where the accused would be allowed to refer the same, to keep it open for the accused to admit or deny the documents as produced by the list so that the course of action could be known to the prosecution, and further hinted that section 226 of the Cr.P.C. does not specify the method of opening of the case. 5. In Manishaben Gajjugiri Goswami (supra), the grievance was raised by the applicant that the learned Sessions Judge had framed the charge without hearing, and there was non-compliance of provision of sections 226 and 227 of the Cr.P.C. A grievance was also raised that large majority of the Sessions Judge do not comply the provisions laid down under section 226 and 227 of the Cr.P.C. in its letter and spirit. 5.1 The Court, in the referred judgment, by reading sections 226 and 227 of the Cr.P.C. had made it clear that the case before the Sessions Court has to begin with opening of case by the prosecution and then followed by argument on behalf of the prosecution and accused, culminating in passing an order provided under section 227 or 228 of the Cr.P.C. i.e. either to discharge or to pass an order of framing of charge. It had been noted, while referring to catena of decisions of the Hon’ble Supreme Court, that the Court is required to evaluate materials and documents on record with a view to find out facts emerging there from taken at the face value disclosing all ingredients constituting alleged offence. The Court in the referred judgment has observed that the purpose and object of sections 226 to 228 is to ensure that the Court should be satisfied to see that the accusation made against accused is not frivolous and that there is some material for proceedings against accused. The Court in the referred judgment has observed that the purpose and object of sections 226 to 228 is to ensure that the Court should be satisfied to see that the accusation made against accused is not frivolous and that there is some material for proceedings against accused. 5.2 The Court after referring to the Hon’ble Supreme Court judgments in case of (i) Banti Alias Guddu Vs. State of M.P., reported in (2004) 1 SCC 414 , (ii) State of Karnataka Vs. L.Muniswamy and Ors., reported in (1977) 2 SCC 699 , has summarized the principle of law in following terms: “14. If we summarize the principles of law settled by the Hon’ble Supreme Court with regard to relevancy and importance of Chapter XVIII of Cr.P.C., more particularly sections 226 to 228, it is quite clear that when accused is brought before the Court on account of committal of case under section 209, the prosecutor is required to open the case by disclosing the charge brought against the accused and further has to state on what evidence he proposes to prove guilt of accused. In other words, while opening the case under section 226 of the Cr.P.C., prosecution is duty bound to disclose charge against the accused and required to state not only in brief but in fair manner about summary of evidence by which prosecution is going to prove case against the accused. Needless to say that it is principle of criminal law that accused is to be presumed innocent so long as he/she is not proved guilty by the prosecution. At the end of completion of procedure prescribed under provision of section 226 of the Cr.P.C., if the Court considers that there is no sufficient grounds for proceeding against the accused, he/she shall be discharged after recording reasons for doing so. For the sake of further clarity, it is to be remembered by the learned Sessions Court that charge sheet constitutes primary evidence constituting offence for proceedings in criminal case and the Court is required to look into relevant law viz-a-viz provisions of IPC or any other law viz-a-viz. allegations made in the charge sheet and then to consider whether any offence is committed so as to put the accused for trial. 15. allegations made in the charge sheet and then to consider whether any offence is committed so as to put the accused for trial. 15. Moreover, the object of provisions of section 226 to 228 is to ensure expeditious disposal of sessions case so that the accused is discharged if there is no case against him or tried quickly by following due procedure laid down under Chapter XVIII of the Cr.P.C. and to give verdict as to involvement or innocence of accused, as the case may be. The provision of section 226 to 228 of Cr.P.C., not only avoids harassment to accused but also waste of public time over the cases which do not disclose even prima facie case and therefore, at this stage, the learned Session Judge has to apply his judicial mind to find out as to whether prima facie any offence is made out against the accused having regard to charge sheet papers relied upon by the prosecution side.” 6. Here, in the present matter, the applicant as an accused had called upon the Court by moving Exh.42 to adopt the procedure laid down under section 226 of Cr.P.C. The impugned order appears to be very cryptic. The application moved itself was with the subject to direct the prosecution to open the case. The application made it clear to proceed the trial after following the procedures prescribed under section 226 of the Cr.P.C. The order of the learned Judge does not make any reference of the procedure, as mandated under section 226 of the Cr.P.C., while had placed all the burden on the accused to make it clear as to why the charge should not be framed. The very observation would be erroneous, since section 226 of the Cr.P.C. lays down the burden on the prosecution to open and clarify the case before the Court by describing the charge brought against the accused, and further to state before the Court what evidence the prosecution proposes to prove against the accused. 7. This Court concurs with the view of learned advocate Mr. 7. This Court concurs with the view of learned advocate Mr. Narendra L.Jain, that a mere production of draft charge would not suffice and satisfy, the object of the provisions of section 226 of the Cr.P.C., where it would be necessary for the prosecution to open the case, laying down the facts and has to, at that juncture, state before the Court the evidences which the prosecution propose to produce with an intention to prove the guilt of the accused. The prosecution is duty bound to disclose the charge, mere production of draft charge will not fulfill the purpose, as the prosecution would have to state the case not in brief but fairly, by summarily explaining the evidence, by which prosecution is going to prove the case against the accused. Thus, it is at this stage under section 226, before framing of the charge, the prosecution has to clarify the case against the accused and also to clarify before the Court about the evidence, which they propose to produce, which shall include oral as well as documentary evidence. 7.1 At times, it has been noted that prosecution may not examine all the witnesses, who have been cited in the charge-sheet by the police. Thus, it becomes necessary for the prosecution to open it before the Court prior to framing of the charge by the Court, the list of the witnesses, to indicate the witnesses to be examined during the trial as well as documents to be relied upon. Court prior to framing charge is required to evaluate the material and documents on record with a view to find out facts, which discloses the existence of all the ingredients constituting the alleged offence. Such procedure is not a mere formality, but is mandatory, and the Court is also required to note such proceedings in the Rojnama. Only after following the provision of section 226 of Cr.P.C., the accused may exercise option of moving discharge application under section 227 of the Cr.P.C. If not, the Court can proceed to frame the charge under section 228 of the Cr.P.C. 8. The Hon’ble Apex Court in para-11 of the Criminal Trials Guidelines Regarding Inadequacies And Deficiencies, IN RE (supra), noted as under: “11. The Hon’ble Apex Court in para-11 of the Criminal Trials Guidelines Regarding Inadequacies And Deficiencies, IN RE (supra), noted as under: “11. The amici Curiae pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, CrPC, the Magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr.PC for their production during the trial, in the interests of justice.” 9. During the process of trial, situation may arise to examine a witness or witnesses other than, those noted in the list produced by Public Prosecutor under section 226 Cr.P.C., then it would be always open for the Public Prosecutor to make an application during the trial and on hearing the prosecution and accused, the trial Court shall pass necessary order. It is further essential to note that non-observance of section 309 of Cr.P.C. have affected the valuable right of the accused, and incarceration due to delay in trial violates Article 21 of the Indian Constitution. Proper exercise adopted by prosecution, as mandated under section 226 Cr.P.C. can help in curbing the delay. Lack of sensitivity and sincerity of the Public Prosecutors to follow the procedure under section 309 Cr.P.C. have led to delay. The courts are mandated to follow section 309 Cr.P.c., examining witnesses on day-to-day basis. If the prosecution would open the case, along with briefly summarizing the evidence disclosing the witnesses to be examined then, that would help the court as well as accused to be ready with the trial, which could be conducted fairly and efficaciously. 11. The courts are mandated to follow section 309 Cr.P.c., examining witnesses on day-to-day basis. If the prosecution would open the case, along with briefly summarizing the evidence disclosing the witnesses to be examined then, that would help the court as well as accused to be ready with the trial, which could be conducted fairly and efficaciously. 11. In Criminal Trials Guidelines Regarding Inadequacies And Deficiencies, IN RE (supra), it has been observed that courts in all criminal trials should hold a preliminary hearing at the beginning of the trial i.e. after summoning of the accused, which may take place immediately after framing of the charge, wherein the court should consider the total number of witnesses, and classify them as eyewitness, material witness, formal witness, who would be asked to produce documents etc. It has been held that, at that stage, the court should consider whether the parties are in a position to admit any document, including report of experts, or any document that may be produced by the accused, or relied on by her or him, and, if so, the exercise of admission/denial may be carried out under section 294 CrPC, for which a specific date may be fixed, and then schedule of recording of witnesses be fixed by giving consecutive dates, and each date, so fixed, should be scheduled for a specific number of witnesses. Further, held that the witnesses concerned may be bound down to appear for 2-3 consecutive dates, in case their depositions are not concluded, and also in case any witness does not appear, or cannot be examined, the Court shall indicate a fixed date for such purpose, and thereafter recording of deposition of witnesses shall be taken up, after the scheduling exercise is complete. 12. In view of the above, the application is allowed. The impugned order dated 15.07.2019 below Exh.42 below Exh.42 in NDPS Special Case No.4/2015 passed by Special Judge, NDPS Court, Surat is quashed and set aside. The prosecution is directed to follow the provision of section 226 of Cr.P.C. to open the case, before the charges are framed by the Court. The same exercise be completed within a period of one month from today. 13. Further, in view of reasons given herein above, the State shall direct the learned Public Prosecutors of all the trial Courts to follow the judgment in Manishaben Gajjugiri Goswami Vs. The same exercise be completed within a period of one month from today. 13. Further, in view of reasons given herein above, the State shall direct the learned Public Prosecutors of all the trial Courts to follow the judgment in Manishaben Gajjugiri Goswami Vs. State of Gujarat, reported in 2022 (1) GLR 133 .