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Gujarat High Court

Vithalbhai vs Central on 30 January, 2008
Bench: J.R.Vora And Shah, M.R. Shah

CR.MA/15506/2007 15/ 17 JUDGMENT

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 15506 of 2007

In

CRIMINAL
APPEAL No. 1324 of 2007

With

CRIMINAL
MISC.APPLICATION No. 534 of 2008

In

CRIMINAL
APPEAL No. 17 of 2008

With
CRIMINAL
MISC.APPLICATION No. 535 of 2008

In

CRIMINAL
APPEAL No. 18 of 2008

For
Approval and Signature:

HONOURABLE
MR.JUSTICE J.R.VORA

HONOURABLE
MR.JUSTICE M.R. SHAH
==================================================
=======

Whether
Reporters of Local Papers may be
allowed to see the judgment ?

To be
referred to the Reporter or not ?
3

Whether
their Lordships wish to see the
fair copy of the judgment ?

Whether
this case involves a substantial
question of law as to the
 interpretation of the constitution
of India, 1950 or any order
made thereunder ?

Whether
it is to be circulated to the civil
judge?

==================================================
=======

VITHALBHAI
D PANDYA - Applicant(s)
Versus

CENTRAL
BUREAU OF INVESTIGATION & 2 - Respondent(s)

==================================================
=======

Appearance
:
MR
YV BRAHMBHATT for
Applicant(s) : 1,PARTY-IN-PERSON for Applicant(s)
: 1,
MR HARIN P
RAVAL for Respondent(s) : 1,
PUBLIC PROSECUTOR for Respondent(s) :
2,
None for Respondent(s) :
3,
==================================================
=======

CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA

and

HONOURABLE
MR.JUSTICE M.R. SHAH

Date
: 30/01/2008
ORAL
JUDGMENT

(Per : HONOURABLE MR.JUSTICE M.R. SHAH)

1. Criminal Misc. Application No.15506 of 2007 is filed by the

applicant third party in Criminal Appeal No. 1324 of 2007 to
condone delay of 188 days in preferring the criminal appeal
under Section 34 of the POTA, 2002 against the final judgment and
order passed by the Special Court (POTA) dated 25.06.2007 in
POTA Case No. 10 of 2003.

Criminal Misc. Application No.535 of 2008 is filed by the very

applicant third party in Criminal Appeal No.18 of 2008 to condone
delay of 352 days in preferring the criminal appeal under Section
34 of the POTA, 2002 against the order dated 18.12.2006 passed by
the Special Court (POTA) below Exh. 855 in POTA Case No.10 of
2003.

Criminal Misc. Application No.534 of 2008 is also filed by the very

applicant third party in Criminal Appeal No.17 of 2008 to condone
delay of 254 days in preferring the criminal appeal under Section
34 of the POTA, 2002 against the order dated 26.03.2007 passed by
the Special Court (POTA) below Exh. 898 in POTA Case No.10 of
2003.

2. That on 26th March, 2003 one Shri Haren Pandya, Ex-Home

Minister for the State of Gujarat while going for his morning walk at
Law Garden, Ahmedabad City was shot at while parking his car near
Law Garden and when removed to the hospital, Shri Pandya was
found to have scummed to the said injuries and was declared dead.
On the basis of the complaint lodged by Shri Janak Singh Khusal
Singh Parmar, FIR being 1st C.R.No.272 of 2003 was registered at
Ellisbride Police Station on 26.03.2003 i.e. on the very same day
and initial investigation for two days remained with Ellisbridge
Police Station. With the consent accorded by the Government of
Gujarat and the consent of the Government of India, the case was
transferred to Central Bureau of Investigation respondent No.1
herein and as per practice of C.B.I., same was re-registered as
RC.2(S)/2003-SIU.I/SIU.II/CBI/ New Delhi on dated 28.03.2003.

3. In another incident of 11th March, 2003, one Shri Jagdish Tiwari,

a VHP leader of Ahmedabad was fired upon. He was admitted to the
hospital for treatment and one bullet was recovered from his body.
He lodged complaint with 1st P.I., Bapunagar Police Station being
FIR - 1st C.R.No.101/2003 for the offences punishable
under Sections 307, 34 of the Indian Penal Code andSection
25(1)(a)(b) of the Arms Act. Subsequently, with the consent
accorded by the State Government vide notification dated
28.04.2003 and Government of India vide Cabinet Secretariat dated
29.05.2003, the said case was also transferred to C.B.I. and same
was re-registered as RC.5(S)/2003 SIU.I/CBI/ New Delhi on
02.06.2003.

4. Two separate cases registered by the local police station relating

to the life of attempt of Shri Jagdish Tiwari and murder of Shri
Haren Pandya were re-registered with C.B.I. From the evidence
collected during the investigation from the said two cases allegedly
revealed that the attempt on the life of Jagdish Tiwari and murder
of Haren Pandya were not isolated incidents but part of the same
transaction and in pursuance of a well designed conspiracy, they
were done. During the course of investigation when it was revealed
to the Investigating Officer that the conspiracy to attempt to murder
of Shri Jagdish Tiwari allegedly disclosed a larger conspiracy to
strike terror amongst the people or any section of people in Gujarat
by using bombs or explosive substances or firearms as retaliation to
the indiscriminate murders and atrocities caused on the innocent
Muslims in Gujarat, the provisions of Prevention of Terrorism Act,
2002 (for short 'POTA') was invoked in the case and on 11.06.2003
an intimation was given to the concerned Court for adding sections
of POTA in the existing sections of the FIR. Likewise, in the case of
murder of Haren Pandya also, intimation was given by the
Investigating Officer of adding the provisions of POTA in the FIR to
the court of learned Chief Judicial Magistrate and learned Principal
Judge, City Civil Court, Ahmedabad on 02.06.2003.

5. As both the incidents were alleged to be part of the same

transaction and having well designed conspiracy, one charge-sheet
for both the incidents came to be submitted by the C.B.I. against the
accused persons. All the accused against whom charge-sheet came
to be filed by the C.B.I. were put to trial by the learned Special Judge
(POTA) Court, Ahmedabad.

6. It appears that after the charge-sheet came to be filed

investigation was over and the accused persons against whom
charge-sheet came to be filed were tried by the learned Special
(POTA) Court, the applicant herein third party and father of the
deceased Harin Pandya submitted one application below Exh.855
inter-alia urging further probe of C.B.I. in the alleged murder of
Harin Pandya to get the truth of the matter with the allegation of
C.B.I. not having investigated on the crucial aspects of this alleged
murder, giving instances of averred version of the P.A. of late Shri
Harin Pandya and non-finding of pocket diary, shoes and wallet of
the deceased and also on the ground that some needed crucial
witnesses have not been examined by the prosecution. The said
application came to be dismissed by the learned Special (POTA)
Court vide order dated 18.12.2006.

7. That thereafter trial of the aforesaid POTA case came to be

proceeded further and again the applicant herein third party
father of the deceased of Harin Pandya submitted another
application dated 27.03.2007 below Exh.898 in Special POTA Case
No.10 of 2003 almost on the similar ground mentioned in the
earlier application below Exh.855 and reiterated his request for
further investigation and interrogating the persons named in the
application so as to reach the truth of the matter for this being case
of political murder. It was alleged that murder of late Harin Pandya
was political murder and at the instance of respondent No.3 herein
and after re-investigation respondent No.3 be arraigned as accused.
Said application below Exh.898 also came to be rejected by the
learned Special (POTA) Court vide order dated 26.03.2007. It
appears that thereafter nothing was done by the applicant third
party and trial came to be proceeded further and the said trial ended
in conviction and the learned Special Judge (POTA) Court by
judgment and order dated 25.06.2007 convicted the accused
persons for the offences punishable under the POTA 2002 as well as
under Sections 302, 120-B of the Indian Penal Code and other
relevant provisions for which they were tried. That thereafter, after
POTA case came to be disposed of finally and ended in conviction,
the applicant herein third party has preferred the aforesaid three
appeal challenging the order dated 18.12.2006 passed below
Exh.855; order dated 26.03.2007 passed below Exh.898 and final
judgment and order dated 25.06.2007 passed in POTA Case No.10
of 2003. As in all the aforesaid appeals, there is delay, present three
applications are filed joining following respondents :

1. Central Bureau of Investigation, Block IV, C.G.O. Complex, Lodhi

Road, New Delhi 110003

2. State of Gujarat, Notice to be served through The Chief Secretary,

Gujarat State, Sachivalaya, Gandhinagar

3. Shri Narendrabhai Modi, Chief Minister, Gujarat State,

Sachivalaya, Gandhinagar

8. Before further considering the applications on merits, we are of

the prima-facie opinion that respondent No.3 is not required to be
heard at this stage; has no locus and is not required to be continued
as party respondent in the present proceedings at this stage.
Therefore, we called upon Mr.Barot, learned Senior Advocate to
make submissions with respect to continuing respondent No.3 as
party respondent in the present proceedings and whether he is
required to be heard at this stage and whether he has any locus at
this stage.

9. Mr.Barot, learned Senior Advocate appearing on behalf of the

applicant has submitted that according to the petitioner respondent
No.3 is main accused on whose behest, to take political revenge
deceased Haren Pandya son of the applicant has been murdered. It
is also submitted by him that though some important witnesses
were available such as wife of deceased Haren Pandya they were not
examined by the investigating agency deliberately and that certain
important documentary evidence has not been considered by the
investigating agency C.B.I. and real accused persons are not
booked and/or against real accused there is no investigation at all.
According to Mr.Barot, as there is prima facie case against
respondent No.3 for arraying him as an accused, before passing any
order for re-investigation and/or proceeding against him as an
accused, he is required to be heard and therefore, presence of
accused no.3 is required and it will be appropriate that accused no.3
is heard even at this stage.

10. Mr.Harin Raval, learned Special Public Prosecutor appearing on

behalf of C.B.I. - Investigating Agency has submitted that looking to
the scheme of Code of Criminal Procedure, respondent No.3 has no
locus at this stage and therefore, respondent No.3 could not have
been arrayed in the present proceedings. It is submitted that the
prayer of the applicant before the learned trial Court and even
before this Court is for re-investigation against respondent No.3
making allegations that respondent No.3 is an accused and he is
required to be prosecuted. It is submitted that looking to the scheme
of provisions of the Code of Criminal Procedure till an appropriate
charge-sheet is filed after investigation / re-investigation and/or
cognizance is taken by the learned Magistrate, accused has no locus
and is not required to be heard. It is submitted that therefore,
respondent No.3 is not required to be heard at this stage and is to be
deleted. To continue respondent No.3 in the present proceedings
will be contrary to the scheme of Code of Criminal Procedure.

11. Mr.Kamal Trivedi, learned Advocate General has submitted that

he appears on behalf of respondent No.3 as he has been served with
advance copies of the present applications and the appeals. He has
raised preliminary objections against continuing respondent No.3 in
the present proceedings. It is submitted by him that the applications
before the learned trial Court were for re-investigation and
examination of certain witnesses and such applications were given
after substantial evidence were recorded. It is submitted that even
respondent No.3 was not party to the proceedings before the
learned trial Court and respondent No.3 has been arrayed in the
present proceedings with mala-fide intention; he could not have
been arrayed as an accused in the present proceedings, therefore, he
has to be deleted. Mr.Kamal Trivedi, learned Advocate General has
submitted that as per Rule 32A of the High Court Rules and Form-B
even it was the duty of the Office to raise objections joining
respondent No.3 in the present proceedings as even as per Rule 32A
and Form -B only those persons who were there in the trial Court
can be joined in the present proceedings before this Court and as
names of the parties did not tally, therefore, Office was required to
take objections. Mr.Trivedi, has taken us to various provisions of the
POTA more particularly Sections 2(a)(i), 29 and 49 of the POTA Act.
He has also taken us to various provisions under the Code of
Criminal Procedure more particularly Section 2(d), Section
2(r) and Section 173 of the Cr.P.C. Relying upon aforesaid
provisions of the POTA and Code of Criminal Procedure, he has
requested to delete name of respondent No.3 from the present
proceedings. He has also relied upon the decision of the Hon'ble
Supreme Court in the case of Rambhai Nathabhai Gadhvi and Ors.
v/s. State of Gujarat reported in (1997) 7 SCC 744 by further
submitting that till cognizance is taken by the Court / Magistrate
there is no question of hearing the accused.
12. Heard the learned Advocates appearing on behalf of the
respective parties.

13. At the outset, it is required to be noted that as per this Court

respondent No.3 has no locus at this stage and he is not required to
be heard, therefore, this Court is not required to hear learned
Advocate General appearing on behalf of respondent No.3 and more
particularly even as this Court has not issued notice upon
respondent No.3. However, as learned Advocate General has been
served with advance copies of the present applications and has
made submissions, we have noted his submissions recorded herein
above and recording the submissions of the learned Advocate
General may not construed that we have heard respondent No.3
and/or respondent No.3 has any locus as for the reasons stated
herein after respondent No.3 is not required to be heard at this
stage and has no locus, he is required to be deleted at this stage from
the present proceedings.

14. It is required to be noted that what is challenged in the present

proceedings are appeals under Section 34 of the POTA challenging
the order dated 18.12.2006 passed below Exh.855 and order dated
26.03.2007 passed below Exh.898 rejecting the applications of the
applicant which were given for re-investigation and examination of
certain witnesses by making allegations that his son has been
murdered for taking political revenge and against real accused there
is no proper investigation and are not booked; with further
allegation that on behest of respondent No.3 his son has been
murdered. It is also required to be noted and it appears that the
applications were given by the applicant after substantial evidence
was recorded by the learned trial Court. Therefore, respondent No.3
can be said to be alleged prospective accused as per the applicant.
Now looking to the various provisions and the scheme of Code of
Criminal Procedure till an appropriate report / charge-sheet is filed
against the accused after investigation / re-investigation and/or
Magistrate takes cognizance there is no provision in the Code of
Criminal Procedure to hear the accused. Mr.Barot, learned Senior
Advocate appearing on behalf of the applicant has failed to satisfy
this Court and/or has failed to show any provision underthe Code of
Criminal Procedure by which the Court is required to hear the
accused before the charge-sheet is filed and/or cognizance is taken
by the learned Magistrate. His only contention is that there is
sufficient material / evidence against accused no.3 and he is
required to be prosecuted as an accused and there is merits in the
applications.

15. It is to be noted that respondent No.3 was not party before the
learned trial Court and till charge-sheet is filed after investigation /
re-investigation he has no locus. As stated herein above, the
applications of the applicant were for re-investigation and
examination of certain witnesses making allegations against
respondent No.3 and to array him as an accused. Assuming that
such applications are / were allowed then consequence would be to
re-investigate the case and after charge-sheet if Investigating
Agency finds some material against some persons, charge-sheet is
required to be filed and thereafter, they are to be prosecuted as an
accused and till that stage that persons / accused has no locus. We
fail to appreciate why and for what purpose respondent No.3 is
joined in the present proceedings which is only at the stage of
considering the applications of the applicant for re-investigation.
According to us at this stage respondent No.3 has no locus and is
not required to be heard and he could not have been joined as party
respondent to the present proceedings being alleged prospective
accused as according to us considering various provisions and
scheme of Code of Criminal Procedure he is not be heard. Therefore,
we do not think that respondent No.3 is to be continued in the
present proceedings and is required to be heard at this stage. Even
considering the decision of the Hon'ble Supreme Court in the case of
Rambhai (supra) till cognizance is taken there is no question of
hearing the accused. As stated above, even as per the C.B.I. -
Investigating agency respondent No.3 could not have been arrayed
as accused in the present proceedings and is not required to be
heard at this stage. Even at the stage of Section 319 of the Code of
Criminal Procedure till cognizance is taken by the learned trial
Court and/or any charge-sheet is filed accused is not required to be
heard.

16. Under the circumstances and for the reasons stated above, we
direct to delete respondent No.3 from the present proceedings i.e. in
all the three applications as he is not required to be heard at this
stage and he could not have been arrayed / joined as party
respondent in the present proceedings. It is made clear that we have
not expressed any opinion on merits while considering to delete
respondent No.3 from the present proceedings in favour of any of
the parties and respondent No.3 is ordered to be deleted from the
present proceedings as according to us he has no locus at this stage;
he is not required to be heard at this stage and he could not have
been joined as respondent No.3 in the present proceedings. Now the
applications for condonation of delay will be heard on its own merits
after deleting respondent No.3 in the present proceedings.

[J.R.Vora,J.] [M.R.Shah,J.] satish