MOHD. HABIB S/O AYUB JAIS SHEIKH....Applicant(s)V/SSTATE OF GUJARAT....Respondent(s)
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPLICATION NO. 415 of 2013
APPROVAL AND SIGNATURE:
Reporters of Local Papers may be allowed to see the judgment ?
be referred to the Reporter or not ?
their Lordships wish to see the fair copy of the judgment ?
this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
it is to be circulated to the civil judge ?
MOHD. HABIB S/O AYUB JAIS SHEIKH....Applicant(s)
S M VATSA, ADVOCATE for the Applicant(s) No. 1
ld. Sp.P.P for the Respondent(s) No. 1
Date : 17/10 /2013
ld.Special Public Prosecutor Mr.J.M.Panchal and learned advocate Mr.S.M.Vatsa appearing for the applicant.
has preferred this revision for getting him discharge from the Sessions Case No. 38 of 2009. For the purpose, petitioner has challenged the order dated 23rd January, 2013 passed below Exh. 678, 679 and 680 by the Designated Judge of serial bomb blast of SIT, Ahmedabad.
of factual details may lead to further arguments and allegation that considering the nature of crime the legal proceeding does not lead to the judicial decision. There is no substance in such allegation since every matter has to be decided in accordance with law and available evidence. Considering the fact that otherwise also while deciding such application regarding discharge of an accused, Court shall not churn the entire prima facie evidence, as if it has to decide the entire trial at such preliminary stage and fact that the discussion of such factual details may prejudice either side during the trial, the nature of crime and history of incident is avoided to be reproduced here. However, it cannot be ignored and it is necessary to disclose in any such judicial orders that the trial of Sessions case No. 38 of 2009 against several accused is because of some terrorist activities in the City of Ahmedabad on 26th July, 2008, when several bomb blast were created between the short span of 6.50 p.m. to 7.45 p.m. in crowded places viz. Civil and L.G.Hospital where victims from general public would not be able to move fast, so that there must be maximum casualty. Thereby in couple of minutes there were 54 death of human beings and 240 persons were injured in the serial bomb blast created, arranged and managed or supported by the accused.
is not disputed that present applicant was not arrested or caught red handed from the site of incident arraigned with any specific material. However, he has been arrested and arried as an accused with other accused, who were found with some cogent evidence against them. Because, it has been revealed during investigation that there was a big conspiracy amongst several terrorist group within the country and present petitioner is member of such terrorist group and he has involved himself in the larger conspiracy of creating havoc by planting serial bomb in crowdy area of big cities of nation. The arrest of petitioner and inclusion as an accused in the given case is because of specific information revealed during the investigation that petitioner has involved himself in crime by supporting the actual offenders who had physically planted the bomb at given place. It goes without saying that such cases of serial bomb blast cannot be committed or performed by one or two persons without help of larger conspiracy and support of other persons, at least for bringing the explosive material, manufacturing bomb, transporting it from one place to another place, planting it and getting it blasted and thereafter to hide from the place of incident and then to run away at safe place, so as to continue similar not only illegal, but anti national and unhuminitory activities.
advocate Mr.S.M.Vatsa appearing for the applicant has argued at length. The sum and substance of his arguments is to the effect that there is mis-identity issue inasmuch as present applicant is no where involved in any such crime, but he is being arrested and sent to custody only because of his name, which is similar to the name of one of the member of some terrorist group and that practically he was not involved in the commission of crime.
substantiate his submission, applicant has relied upon the statement of co-accused Imran Ibrahim Shaikh recorded by Naroda Police Station in First FIR No. 400/08. It is submitted that in such statement reference of co-accused are there, but so far as the present applicant is concerned, accused-Imran Ibrahim has never disclosed his name as conspirator and co-accused and what is stated by such Ibrahim was only to the effect that there was reference of Jahir, Tokir and Falahi of U.P. It is submitted that however, there are several Falahi in area. To substantiate such arguments, ld. advocate Mr.Vatsa is relying upon the list of members of organization mainly Students Islamic Movement of India [for short SIMI] . Applicant has produced photocopy of list of members of such organization [Pg.155 to 167 at Annexure E]. Though, applicant has termed such list of photocopy of such relevant investigation papers in relation to SIMI, when applicant relying upon such list to show that his name is not there in such list. It becomes clear that such organization and its members are in existence inasmuch as what is submitted by the applicant is to the effect that there are several persons with the names or surnames Falahi . It is further submitted by the applicant that as he belongs to Uttar Pradesh and in the given list of SIMI, there is special list of Uttar Pradesh Zone wherein also there are at least two persons namely Falahi and that his name is not there in such list. In addition to such arguments, it is submitted that since there is no confirmation about the involvement of the applicant in the crime and when his name was not there in the list of members of organization namely SIMI, more, particularly when his name was not clearly disclosed by the co-accused in his statement under Section 164 before the Investigating Officer, which is produced on record at Exh. D , he cannot be considered as an accused . It is submitted that this is a clear cut case of not only investigation but history also by the trial Court in not considering such fact that practically petitioner is no where involved in such activities.
sum and substance of the arguments is limited to the extent that according to applicant, he has been arrested and connected with crime only because of his name Falahi . Though, there is no cogent evidence regarding his involvement either in the crime or conspiracy of the crime.
against that ld. Special Public Prosecutor Mr.J.M.Panchal has described the nature of incident confirming that accused are charge-sheeted under Unlawful Activity Prevention Act, 1967, since the activities are not only harsh and cruel, but it is anti national and terrorist activities and hence, it is submitted that in such cases when there is evidence regarding larger conspiracy, it cannot be said that at such stage there is no evidence against the applicant . It is further submitted that presence of applicant in training camp at Wagmor, Kerala is confirmed during investigation and applicant being member of SIMI which is banned since September, 2001, has acted with members of All Indian Mujahideen Terrorist Group for blasting bombs in crowdy area of the city wherein 54 persons had died. It is further submitted that practically charges are framed against the accused in March, 2013 and till date 217 witnesses have already examined and since trial is ongoing on day-to-day basis on priority in Jail premise as per direction of the Hon ble Apex Court and when charge-sheet is filed long back in the year 2008 showing present applicant as an accused No. 48 and when he was absconded at the material time and when found thereafter and when his application for discharge has been dismissed long back i.e. 23rd January, 2013, now, there is no reason to roll back the situation and trial by allowing discharge application without offering reasonable opportunities to the prosecution to prove its case.
against that learned advocate for the applicant has tried to explain that how the applicant has been identified as such by relevant panchnama and how, he has been involved in such case. However, discussion on such prima facie evidence at this stage, would result into opinion in some form on either side, whereas law specifically prevents the Court to churn such evidence and arrive at any specific conclusion at such stage except from scrutinizing that whether there is prima facie evidence against applicant/accused or not ? Therefore, discussion on police paper of charge-sheet and other evidence has been avoided
ld. Special Public Prosecutor has reconfirmed that practically the name of present applicant as disclosed in the charge-sheet and as disclosed by the applicant himself in cause title of the present Revision Application makes it clear and confirmed that he is same person and with same name is crop up during the investigation, there is no question of mis-identity by the Investigating Agency for which applicant can be discharged, as prayed for, by the applicant . There is substance in such arguments, though applicant has tried to show some documents like membership list of SIMI, Electoral roll, photo copy of passport, photocopy of mark-sheet, election card, identity card etc. However, all such documents confirmed that applicant is Mohd. Habib s/o . Abdul Jais Shaikh and if such name is disclosed to the Investigating Agency during investigation with same address as that of present applicant, prima facie, it is to be believed that he is the applicant only who is required to be tried for the offence.
far as the evidence regarding conspiracy is concerned, it is clear that there may be less possibility of direct documentary or physical evidence to prove conspiracy which can be proved by only circumstantial evidence by proof of complete chain of events and conspiracy, which can be proved only after the complete evidence is allowed to be adduced and recorded by the trial Court.
Special Public Prosecutor also relied upon the warrant of arrest issued by the Metropolitan Court on 14th November, 2008, wherein also the correct name and address of the applicant has been disclosed and pursuant to such arrest warrant, if concerned police station of Uttar Pradesh has arrested present applicant as such, then there is no reason for investigating agency to disbelieve or to reconfirm the identity of the applicant as such.
advocate for the petitioner has relied upon as many as 10 judgements of the Apex Court on different grounds which are listed as under :-
Revision Application No. 540 of 2013, date of judgement 11.9.2013 (Gujarat High Court)
227 & 228 of Cr.P.C
Singh Karam Singh Punjabi V. Jitendra Bhimraj Baijaya (1990) 4 SCC 76
227 & 228 of Cr.P.C
(NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru, 2005 (11) SCC 600
120B of the IPC
8 Evidence Act
of Maharashtra Vs. Som Nath Thappa (1996) 4 SCC 659
120B of IPC
227 & 228 of Cr.P.C
of U.P. Vs. Sanjay Singh (1994) Supp. 2 SCC 707
120B of the IPC
of Karnataka Vs. L.Muniswamy (1977) 2 SCC 699
120B of the IPC
227 and 228 of Cr.P.C
Kurmi and Jogia Hajam Vs. State of Bihar, AIR 1964 SC 1184
164 of Cr.P.C
of a Co-accused
Singh & Other Vs. State of Punjab (1994) 3 SCC 569
Akhtar @ Mota Vs. State of U.P. (2003) 5 SCC 499
history given in disclosure statement made u/s. 27 Evidence Act.
Singh Vs. State (Delhi Administration) AIR 1988 SC 1883
far as Sr.No. 1, 2 and 4 & 6 are concerned, they are with reference to Sections 227 and 228 of Cr.P.C for which detailed discussion has recorded herein and the same are not dealt with separately.
so far as the case of Navjot Sandhu (Supra) is concerned, petitioner has submitted that for connecting person as an accused under Section 120B of IPC, what is required is clear chain of circumstances to confirm the involvement of any person and in absence of specific evidence against particular person, he cannot be convicted only under Section 120B of IPC and thereby one accused has been acquitted by the Apex Court in the case of Parliament attack, wherein also the allegation are under Prevention of Terrorist Act and it was considered as terrorist activities. However, only because Supreme Court has acquitted one accused in such case, it cannot be taken as a rule or law to discharge all accused, it cannot be ignored that acquittal in reported case was after full-fledged trial and there were no order to discharge him.
far as the case of Sanjay Sigh (Supra) is concerned, practically, there was no evidence against Sanjay Singh except the fact that he was known to the accused person. Apex Court considered that only association of a criminal person is not adequate to prove conspiracy by such person in absence of any evidence. Since, Apex Court was convinced from the available record that Sanjay Singh was not involved in conspiracy, in absence of material on record to indicate tacit understanding amongst the accused. The discharge was confirmed. However, only because in a given case, discharge was confirmed, it cannot be said that in all the cases, all the accused are entitled to be discharge on parity. It is settled legal position that all the previous decisions are to be considered not only in accordance with law but also in reference to the facts and material on such case.
Haricharan Kurmi s case (Supra)
before the Apex Court was regarding statement of the co-accused which simply confirmed that the confession of co-accused person cannot be treated as substantive evidence in criminal trial . There is no scope of applying principle of moral conviction on grave suspicion. However, it is the case after full-fledged trial and acquittal after trial would not held that the petitioner is entitled to get the discharge at this stage.
Salim Akhtar s case (Supra), the Hon ble Apex Court has considered the effect of Section 27 of the Evidence Act . However, though it is pertaining to photograph, practically, it was for the confirmation of recovery of pistol and therefore, Apex Court has held that considering the facts and circumstances of the case disclosure statement of recovery of articles is not admissible in evidence. However, this is also final judgement after full-fledged trial. It simply confirms the certain position, considering the facts and circumstances of the case and, therefore, it cannot be treated as rule of thumb for each case irrespective of other evidence.
in the case of Kartar Singh (Supra), the issue was regarding identification through photographs . However, if we perused the judgement, it becomes clear that identification of a person on the basis of photograph was deal with in such reported case with reference to Terrorist and Disruptive Activities (Prevention) Act (for short TADA ) that was to with reference to constitutionality of such provision . But it nowhere confirms that irrespective of any cogent evidence, identification of photograph cannot be confirmed. Ultimate decision with reference to photograph in such reported case, wherein judgement also only after full-fledged judgement and with constitutionality of Section 20(7 )of TADA Act. However, even by such disclosure, it cannot be said that photograph cannot be treated as evidence in any manner. Thereby there is sufficient evidence to prove certain things through photograph and if photograph is proved on record, it cannot be ignored.
far as the case of Salim Akhtar (Supra) is concerned, it is pertaining to recovery of material and confirms how to deal with such recovered material wherein, it is held that his pistole is not sealed on the spot neither its number was disclosed in the recovery memo which certainly raised doubt regarding factum of recovery. Therefore in the present case, when there is no question of recovery of any material from the present applicant, only because in given case benefit was extended to the terrorist in absence of proper evidence regarding recovery, it cannot be said that in all such cases, accused shall be discharged. It is also evident that this all reported cases are after full-fledged trial and not at such stage of discharge before trial when an opportunity to the prosecution to prove their case was yet to be provided.
in the case of Kehar Singh (Supra) the issue was regarding abscondment, wherein absence of panch witnesses regarding abscondment of a person allegations of absconding was not believed as trustworthy . In the present case charges against the present applicant are not for his abscondment at the time of filing of charge-sheet . It is mainly for the conspiracy in commission of main offence of serial bomb blast in the city area and to that extent since these cited cases is also after full-fledged trial, it does not help the applicant to get discharge from the case.
other submissions were advanced before me by the petitioner.
against that ld. Special Public Prosecutor has relied upon the following cases:-
Pal Singh Vs. State of NCT of Delhi and another [(2002) 5 SCC 234]
Narvekar Vs. Vijaya Satardekar and others [(2009) 1 SCC (Cri) 721]
Kumar Chopra Vs. State (NCT of Delhi ) [(2009) 16 SCC 605]
Vs. State of Kerala and another [(2010)2 SCC 398]
Bureau of Investigation, Hyderabad Vs. K.Narayana Rao [2012(3) GLH 373]
the case of Devender Pal Singh (Supra) Bench of three judges of Apex Court has considered the conspiracy in terrorist activities and confirmed the sentence, even in absence of direct evidence against the accused. The only issue was with reference to the corroboration of evidence, when conviction is based solely on confessional statement of co-accused. It was held that confessional statement of the accused was relied upon for the purpose of conviction and no further corroboration is necessary, if it relates to the accused himself. As a matter of prudence, same corroboration is necessary, if confession is to be used against the co-accused. Therefore, unless there is full-fledged trial, it cannot be confirmed at such preliminary stage that there is no evidence in corroboration of the confessional statement of co-accused, so as to discharge the petitioner .
the case of Rukmini Narvekar (Supra) it was held that there is no scope for the accused to produce any evidence in support of submission made on his behalf at the stage of framing of charges. Only such material as indicated under Section 227 of Cr.P.C can be taken into consideration by the Magistrate at such stage. Such principle is well settled since long and it is well explained in the case of Debendra Nath Padhi [2005(1) SCC 568] which is by the larger Bench [three Judges] and therefore, ld. Sp.Public Prosecutor has submitted that documentary evidence relied upon by the applicant as filed with revision memo, which are discussed hereinabove, cannot be taken into consideration at this stage.
the case of Chitresh Kumr Chopra (Supra), Apex Court has considered the instigation as abatement and it was held that at the stage of framing of charges, Court is required to evaluate material and documents on record only to find out the facts emerging therefrom which can be taken at their face value so as to disclose existence of all ingredients constituting the alleged offence or not. For this limited purpose, the Court may sift the evidence but the available material has to be considered only with a view to find out if there is ground for presuming that accused has committed an offence or not, but not for the purpose of arrived at definite conclusion. It is made clear that on the basis of material on record, if the Court can come to the conclusion that commission of offence is probable conclusion, he case of framing of charges exist.
the case of P.Vijayan (Supra) while dealing with the Section 227 of Cr.P.C with regard to discharge of accused the Apex Court has held that trial Court is empowered to discharge the accused and trial Judge has not to see whether the trial will end in conviction or acquittal. It is further stated that Judge has to exercise his judicial mind to the facts of the case in order to determine that whether a case for trial has been made out by the prosecution or not. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or enter into weighing and balancing of evidence and probabilities which is the function of the Court, only after the trial starts. This is well settled legal proposition on the subject and hence, this Court has avoided to churn the entire evidence so as to give any decisive conclusion regarding manner of involvement in commission of offence by any particular accused in any specific manner.
the case of K Narayan Rao (Supra) Apex Court has considered the criminal conspiracy and held that if there is link or evidence to connect any person with the other conspirators for causing loss to others, undoubtedly, the prosecuting authorities are entitled to proceed under criminal prosecution .
decisions of the Apex Court also needs to be considered for determination, decision and conclusion on the issue on hand. AIR
1987 SC 773 : State Of Himachal Pradesh Vs. Krishan Lal Pardhan
1990 SC 1869 : Niranjan Singh K.S. Punjabi v. Jitendra Bhimraj Bijjaya,
1996 SC 1744 : State of Maharashtra and Ors. v. Som Nath Thapa and Ors.,
1997 SC 2041 : State of Maharashtra vs. Priya Sharan Maharaj, AIR
2000 SC 665 : State of MP vs. SB Johari , AIR
2000 SC 2583 : State of M.P. v. Mohanlal Soni, AIR
2001 SC 1507 : Om Wati vs. State, AIR
2005 SC 359 : State of Orissa vs. Debendra Nath Padhi, AIR
2007 SC 2149 : Soma Chakravarty v. State AIR
2010 SC 663 : P. Vijayan v. State of Kerala and Anr., AIR
2011 SC 1103 : R.S. Mishra v. State of Orissa AIR
2013 SC633 : Ajay Kumar Parmar v. State of Rajasthan
of each case are not separately discussed, but gist of all such cases are to the effect that the law on the subject is now well-settle that while considering the discharge application, the Court is required to evaluate the material and documents on record for limited purpose i.e. to find out that whether facts emerged from such material even if taken on their face value, is enough in disclosing the existence of all the ingredients to constitute the alleged offences. The Court may, for this limited purpose, sift the evidence as it cannot be expected at such initial stage to accept entire prosecution story as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. The question whether there was mens rea
and knowledge or negligence is not an abstract question of law but is a matter of evidence and cannot be considered at this stage. However I have gone through the record of the case and I am of the opinion that there is sufficient evidence on record to prove the case of the prosecution, where as explanation by the accused is not trust worthy, since not supported by the evidence less prima facie proof.
is certain that there must be a very strong suspicion to form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and thereby prima-facie sufficient ground to sustain the charge, for framing the charges so as to start the trial against the accused persons. It is also well settled that while framing the charge or while considering the request for discharge, inquiry must necessarily be limited to decide if the facts emerged from such material constitute the offence for which the accused could be charged. At such stage, the Court may peruse the record for that limited purpose, but it is not required to marshal the evidence with a view to decide the reliability thereof. Thereby the Court has to consider the material at such stage only with a view to find out if there is a ground for presuming that accused has committed an offence or that there is no ground to prosecute him. Thereby, the Court has to sift the evidence, as it cannot be expected even at initial stage to accept all the prosecution story as gospel truth and even if it is opposed to common sense or the broad probabilities of the case, the Court has to consider the material with a view to find out that whether there is any ground to presume that the accused has committed the offence or that there is no ground for proceeding against him.
is settled legal position that at such stage the Court has not to evaluate available prima facie evidence on record so as to confirm or decide particular thing but presence of prima facie evidence is sufficient to frame charge. Therefore, though applicant has tried to disclose and interpret certain evidence in pleading, except issue which is necessary to decide present application, other evidence has not been disclosed. However, I have gone through the entire pleadings and record and did not find any substance in the Revision Application.
it cannot be ignored that what is to be looked into is a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged ; therefore only because Apex Court has held so, it cannot be said that even if in absence of suspicion, presumptive opinion of the commission of offence as alleged is must and charge must be framed. Suffice to say that when enactment / statute provides for discharging accused, basically accused has a right to get discharge, which may be subject to fulfillment of certain criteria, that may be laid down either in the statute as well as its interpretation by the Apex Court and not otherwise. Therefore there can be order of discharge if there is no evidence with charge sheet which gives rise to even little suspicion to presume the commission of offence by the accused. Needless to say that even if there is suspicion regarding commission of offence, what is required to refuse discharge is suspicion of commission of offence by the accused against whom charge sheet is filed. Thus even if suspicion is possible for commission of offence, and if there is no evidence to link such suspicion with the accused, there cannot be a presumption against the accused that he had committed the offence and he may entitled to get discharged from the charges levied against him under the charge sheet. Needless to say that the charges levied against the person is to be considered and not the story or history of incident which results in to the commission of offence. For more clarity, commission of offence alone is not sufficient to frame charge against any person, there must be some suspicion that offence had been committed by the said person and not by any other person., If the suspicion is to the effect that though offence has been committed, probably accused might have not committed such offence but real offender may be some one else, Court has to see that truth comes out whereby the Investigating Agency may not be permitted to put their hands down mealy by filing charge sheet against any one suspect or any innocent person. In such cases trial cannot be allowed to continue only upon opinion of the investigating agency that accused had committed the offence as alleged in charge sheet. The Court has to arrive at independent opinion, after considering the available prima facie evidence on record which is only in the form of charge sheet, not only tabular charge sheet but list of witnesses and their statement before the investigating agency (police papers). It cannot be ignored that the ratio of conviction is quite low only because of the reason that though police papers supports the charge sheet, at the time of trail witnesses does not support their statement; this happens because of the possibility that in most of the crimes against the person/body under the Penal Code, the statement of witnesses are common to the effect that accused had acted in particular manner. However when crime is pertaining to some documents or properties intellectual and real, the investigating agency has to find out the real culprit with probable cogent evidenced, rather than only oral evidence that accused had committed crime as alleged. This is the area when its Courts duty to frame independent suspicion regarding not only commission of crime but involvement or roll of the accused against whom charge sheet is filed and if there is no possibility of even little suspicion against the accused regarding commission of offence by him, there is no bar to discharge such person from the charges levied against him,. In such cases it would be open for the original complainant and the investigating agency to keep such person under suspicion but to investigate further so as to find out real culprit, else filing of charge against a person only on suspicion but without sufficient evidence against him would be a futile exercise and it will not only increase unnecessary workload but crime in the society also, since real culprits are able to secluded them from the trial.
AIR 2013 SC633, Ajay Kumar Parmar v. State of Rajasthan, it is held that the court should not pass an order of acquittal by resorting to a course of not taking cognizance, where prima facie case is made out by the Investigating Agency. More so, it is the duty of the court to safeguard the right and interests of the victim, who does not participate in discharge proceedings. At the stage of application of Section 227, the court has to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. Thus, appreciation of evidence at this stage is not permissible..
have called for the papers of charge-sheet. I have scrutinized the prima facie evidence on record which categorically proves the involvement of the accused in commission of crime and that there is prima facie evidence against him for framing the charges as levied in the charge sheet.
it is made clear that any discussed in this judgment should not be treated as expression of view or evaluation of evidence on merits or decision on charges by the prosecution or defence by the applicant. Thereby present conclusions of the Sessions Court as well as this Court are confined only for disposal of the discharge application filed under Section 227 of the Code. It is for the prosecution to establish its charge and the Trial Judge is at liberty to analyze and to arrive at an appropriate conclusion, one way or the other, in accordance with law. Thereby Trial Judge is free to dispose of the case uninfluenced by any of the observations made in this judgment.
view of the above facts and circumstances, I do not find any merit in the application. There is a strong prima facie evidence about commission of the offence and involvement of the applicant as alleged in the charge sheet. Hence, the present application has no merits and deserves to be dismissed
the revision application is dismissed. Rule is discharged.