IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO.490 of 2013 With CRIMINAL REVISION APPLICATION NO. 613 of 2013 With CRIMINAL REVISION APPLICATION NO. 614 of 2013 With CRIMINAL REVISION APPLICATION NO. 616 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? Whether this case in!ol!es a substantial "uestion of law as to the interpretation of the #onstitution of $ndia% 1&'( or any order made thereunder ? ' Whether it is to be circulated to the ci!il judge ? ================================================================ DILIPBHAI JIVABHAI KATARIYA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MR ND NANAVATI, SR.ADVOCATE with MR BM MANGUKIYA, ADVOCATE for the Applicant(s) No. 1 MS BELA A PRAJAPATI, ADVOCATE for the Applicant(s) No. 1 MR HL JANI, PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ #)R*+, HONOURABLE MR.JUSTICE S.G.SHAH Page 1 of 14 R/CR.RA/490/2013 CAV JUDGMENT Date : 8/09/2014 COMMON CAV JUDGMENT All these four applications are on the same issue and against same impugned order and, therefore, are heard together and disposed of by this common judgment. 2. Practically, for all the applicants only one set of arguments have been advanced by learned senior counsel Mr.N.D.Nanavati. Whereas, for private respondents, since four revision applications are there, different senior counsels have ithout overlapping their submissions submitted different issues and learned Public Prosecutor Mr.!.".#ani has argued on behalf of the $tate. %he impugned order in all the revision applications is dated 2&.&'.2&() belo *+h., in -riminal Appeal No.22 of 2&() by $essions #udge, Porbandar. $uch application as filed by appellant being original accused No.. in such appeal, u/s.),0 of the -r.P.-. to stay his conviction in -riminal -ase No.((21, of 2&&2 and -riminal -ase No.((' of 2&&, confirmed by the -hief #udicial Magistrate, Porbandar. %he appellant before the $essions -ourt is challenging such conviction and, therefore, hen sentence is stayed by granting bail, the appellant has also prayed for staying the order of conviction. ). At the outset, learned senior counsel Mr.N.D.Nanavati has fairly concealed and admitted that, in fact, though the impugned order is order hereby conviction of the respondent No.2 herein has been stayed, their grievance is not on merits of such order inasmuch as even in absence of an application at *+h., and impugned order, practically, pursuant to the provisions of $ection ),0 of -r.P.-., hen -riminal Appeal is preferred in time and considering provision of $ub3$ection 4.5 of $ection , of the 6epresentation of the Peoples Act, pursuant to the judgment of !on7ble $upreme -ourt, declaring such $ub3$ection as vires prospectively ith effect from (&.'.2&() only in the case of Lily Thomas Vs. Union of India Page 2 of 14 R/CR.RA/490/2013 CAV JUDGMENT in Writ Petition (Civil) No.490 of 00!" the conviction of respondent No.2 is automatically stayed and, therefore, irrespective of application at *+h., and impugned order and even after challenge of such impugned order in this revision application, the benefit available to respondent No.2 cannot come to an end hereby he is protected as per provision of $ub3$ection 4.5 of $ection , of 6epresentation of the Peoples Act. .. %hough the fact are 8non to all, it ould be appropriate to recollect that respondent No.2 is at present sitting M.".A and Minister of the $tate of 9ujarat. !oever, pursuant to :;6 No.,) of 2&&2 dated 1.(&.2&&2 u/ss...', )'0 and ((. of the ;P-, a chargesheet as filed against him and in -riminal -ase No.((' of 2&&, initiated from such :;6 and chargesheet, ultimately, he as convicted by the -.#.M., Porbandar. ;n her judgment dated (1.2.2&(), -.#.M., Porbandar had convicted respondent No.2 herein ith three other accused and aarded imprisonment of three years and penalty of 6s.1&&&/3 for committing the offence u/s. )'0 of the ;P-. %he hue and cry of the petitioners are therefore to the effect that only because respondent No.2 is sitting M.".A and Minister of the $tate, though he has committed an offence as aforesaid, and though he is convicted by the competent -ourt, the $essions -ourt has openly helped accused No.2 in staying his conviction by alloing his application at *+h., and that $tate being prosecuting agency instead of opposing such application, openly supported the accused in getting his application alloed before the $essions -ourt. ;t is further alleged that same attitude has been continued in the present revision application hen $tate is instead of supporting petitioners, supports respondent No.2 . 1. !oever, unfortunately, hen learned senior counsel Mr.N.D.Nanavati has fairly admitted that there ould be no change in circumstance or adverse effect to the respondent No.2 irrespective of impugned order or this revision, considering the fact that pursuant to $ub3 Page 3 of 14 R/CR.RA/490/2013 CAV JUDGMENT $ection 4.5 of $ection , of the 6epresentation of the Peoples Act, hen conviction of respondent No.2 does not dis<ualify him to be a member of legislative assembly and thereby he can continue on the post of Minister= no, practically, this marathon e+ercise by all the four petitioners in all these revision applications are nothing but an attempt to ma8e a mountain of a molehill and to get cheap publicity so as to continuously argue in public forum that $tate 9overnment has continued the person as a minister and M.".A though he is convicted by the competent -ourt. 2. %herefore, practically, no this issue and argument both on the point of lo#$s standi of the petitioners as ell as suspension of sentence, has become academic in nature and, practically, may not re<uire to be discussed at length, since there is nothing adverse and thereby illegal or arbitrary or there is no perverseness in the impugned order. %hereby, simple order in all these revision applications ould be nothing, but its rejection. '. !oever, unfortunately and disturbingly, the entire submission by the petitioners and target is judicial process and judiciary at large, more particularly, Presiding >fficer of the $essions -ourt, ho has passed the impugned order as ell as the $tate machinery in general and in particular the Public Prosecutor before the $essions -ourt and before this -ourt. As aforesaid, practically, hen impugned order is otherise not illegal or perverse, then as argued by learned senior counsel Mr.N.D.Nanavati,it is challenged only because of alleged irregularity on the part of the $essions -ourt as ell as Public Prosecutor by petitioners ho are otherise not party before the $essions -ourt in the appeal here such impugned order is passed. %herefore, respondents are right in objecting to entertain such revision on the issue of lo#$s standi of the petitioners. %hough much is argued on the issue by both the sides and though both the sides have cited so many cases, ultimately, it is nothing but futile e+ercise by petitioners inasmuch as if at all as argued by them, Page 4 of 14 R/CR.RA/490/2013 CAV JUDGMENT they ant to emphasi?e on the practice folloed by the $essions -ourt and the $tate as prosecuting agency through their prosecutors, they ould have preferred appropriate litigation, may be P;", if la and rule so permit. %herefore, ; do not see any reason to interfere in the impugned order in any manner. !oever, for coming to such conclusion and to anser the issues raised by the petitioners, there is no option but to verify certain details and to determine the relevant issues. ,. @nfortunately, on factual aspect also, the basic facts are certainly against the petitioners, ho are not only re<uired to be condemned, but needs to be arned from initiating any such litigation in future either for personal vengeance or for political benefit or for cheap publicity or for some ulterior motive, ; have reason to say so considering the factual details.
0. ;f e peruse the original :;6 dated 1.(&.2&&2, it becomes clear that such :;6 is filed by one @meshbhai ;sharbhai Ahavsar as Asst.Manager of $aurashtra -hemicals "td., Porbandar. ;n his complaint, he has specifically stated that he is serving as Assistant Manager in $aurashtra -hemicals "td. since (( years and that his company has ac<uired certain sites in Aoriya area of Porbandar %alu8a on lease, hich is admeasuring in all )(& acres and that they are paying rent to the 9overnment and their company has to e+tract limestone from such land, but they have not started to e+tract limestone and have yet not assigned the contract for such e+traction. ;t is further stated that on 1.(&.2&&2, they came to 8no, hen they inspected the land, that some limestone have been stolen by e+traction from such land and on in<uiry from the persons available at the place, they came to 8no that respondent No.2 and one other person against hom chargesheet and criminal case has been initiated, are illegally e+tracting limestone for last five years and sending such limestone to %A%A company. ;t is his say that ho much limestone has been stolen and of ho much amount, ould be disclosed after ma8ing Page 5 of 14 R/CR.RA/490/2013 CAV JUDGMENT survey. %herefore, he has lodged a complaint against such persons for stealing limestone from the land, hich as leased to them. !oever, so far as 2& acres land is concerned, it is his case that it as obtained by his company from one "a+manbhai Aagat. %hough the statement is not clear and vague, as it transpires that initially the lease as in the name of "a+manbhai Aagat, and in (00., probably, it as sub3leased to $aurashtra -hemicals "td. %he bare perusal and reading of complaint ma8es it very much clear that complaint is basically u/s.)'0 regarding e+traction and theft of limestone from the property hich is leased in favour of $aurashtra -hemicals "td. and, therefore, it is a private complaint by a private person for his property ith allegation that it has been stolen and that too ith such a vague statement in the complaint that such e+traction or8 as continued or carried out for last five years. >ne more surprising statement is to the effect that complainant as aare about the fact that such allegedly stolen limestone as going to %A%A factory, then, practically, it is a dispute beteen to business houses, namely, $aurashtra -hemicals "td. And %ata :actory in surrounding area and more particularly even after getting the lease, if $aurashtra -hemicals "td. has never bothered either to secure the boundaries of lease property or to e+tract the re<uisite material being limestone from the land, practically, this is nothing, but a dispute beteen to limited companies. %hough during investigation, police has tried to find out the ay and means and method of transporting limestone through the land in <uestion to %ata -hemicals "td., Mithapur, it seems that police has not bothered to in<uire from %ata -hemicals "td. and to join anybody from such company as accused hen they have accepted or purchased such limestone from some person. No doubt, all such scrutiny and observation are not re<uired at this stage hen -riminal Appeal is pending before the competent -ourt, its reference is necessary for the simple reason to understand that this is not a case against the public property for hich petitioners are ma8ing hue and cry that a person, ho has committed theft Page 6 of 14 R/CR.RA/490/2013 CAV JUDGMENT of public property, is being supported by the -ourt and the $tate machinery. Needless to say that if respondent No.2 has committed even a small offence or even a theft of small amount, if there is sufficient evidence against him, he ould certainly be convicted and to that e+tent, the la ill ta8e its on course. (&. !oever, in vie of such bac8ground, the real <uestion is about the lo#$s standi of the present petitioners, ho are nohere connected either ith limestone or ith the complaint or ith the property in any manner hatsoever. !oever, as submitted and argued at bar, it seems that they are either supported or sponsored by some political party or some political rival of respondent No.2. ;t is submitted by respondent No.2 that because the candidate of other parties have lost the elections and hen respondent No.2 as selected as minister, the rival group is trying to harass/disturb and create a media trial and publicity against him by such litigation. ;t seems that there is some substance in such submission. !oever, at present, e do not have to decide such issues and, therefore, confirming that the issue regarding lo#$s standi of present petitioner is also one of the basic issue in this revision application, it is made clear that hatever is observed herein above on factual aspect are only for a limited purpose to decide the of such issue of lo#$s standi and it shall in no ay affect the pending appeal against conviction and that trial -ourt is certainly free to decide the appeal purely on its on merits in accordance ith la i.e. relying upon the material available on record. ((. :or above discussion and observation, it ould be appropriate to refer and recollect certain material and pleadings from the record. ;t is to be recollected here that all the respondents are in no ay connected either ith the complainant or even ith the respondent No.2 since none of them are residing at Porbandar, but most of them are residing in Ahmedabad. Whereas, one Dilipbhai #ivabhai Batariya, the petitioner in -riminal 6evision Application No..0& of 2&() is residing at Amreli. ;t is Page 7 of 14 R/CR.RA/490/2013 CAV JUDGMENT therefore relevant to recollect the averments in pleading of such revision applications herein though all the petitioners are practically same in verbatim, barring personal details, in paragraph 2) of the applications all the petitioners have stated that since the respondent No.2 is a poerful person having political patronage, it is possible that respondent No.2 may harass Dilipbhai #ivabhait Batariya to stop pursuing the case against the respondent No.2 and that Mr.Dilipbhai #ivabhai Batariya may also meet ith the same fate of Mr.Ahagubhai Devani and that Mr.Dilipbhai #ivabhai Batariya may also be forced to bac8 out and stop pursuing the case against respondent No.2 and, therefore, petitioner has filed the present -riminal 6evision Application. !oever, unfortunately, none of these applications have clarified and disclosed that ho they are concerned ith Dilipbhai #ivabhai Batariya, ho is residing at Amreli and rest of the petitioners are residing in Ahmedabad. (2. %herefore, it is certain that in fact present revision applications are not against the $tate, Public Prosecutor as ell as the concerned $essions -ourt only, but it is mainly to help Dilipbhai #ivabhai Batariya. ;f at all, there is some disturbance beteen Dilipbhai #ivabhai Batariya and respondent No.2, it can be ta8en care of in appropriate proceedings against respondent No.2 including proper complaint, but in any case, such litigations are not arranted and it certainly re<uires to be condemned to that e+tent. No, it is certain that present petitioners do not have a lo#$s standi. %herefore, several citations hich are referred by both the sides are though listed herein belo, they are not re<uired to be discussed in detail inasmuch as hen it has been certain and clear that the present petitioners have no lo#$s standi. !oever, on perusal of all such judgments, it becomes clear that even on facts and legal merits, the citations referred by the respondents are more irrelevant to the present case than the citations referred by the petitioners and, therefore, relying upon the citations referred by the respondents, no it becomes clear that Page 8 of 14 R/CR.RA/490/2013 CAV JUDGMENT there is no lo#$s standi to the petitioners in filing such a petition. Aut, so far as present petitions are concerned, it becomes clear and obvious that petitioners do not have lo#$s standi, more particularly, hen complaint is a private complaint u/s.)'0 of the ;P- for hich complainant is very much there to agitate and initiate any such issue. *ven at the cost of repetition, it is to be recollected that by filing such petitions, practically, petitioners are trying to get political mileage hen such issue is repeatedly being raised that particular 9overnment is continuing the M.".A as a Minister though he is convicted by the -ourt. Needless to say that irrespective the present legal position after the judgment in "ily %homas 4supra5 hen present respondent is not affected by such judgment, there is no reason to find fault ith the impugned order only because of the position of respondent No.2. (). Petitioners have relied upon folloing decisionsC3 (. 42&&051 $-- ',' 3 $anjay Dutt Ds. $tate of Maharashtra through -A; Aombay. 2. 4(0,.52 $-- 1&& 3 A.6. Antulay Ds. 6.$.. Naya8. ). 4(0,'5 ( $-- 2,, 3 $heonandan Pasan v. $tate of. Aihar E >rs. .. -riminal Appeal No.(1(1 of 2&(. 4Arising out of $.".P. 4-riminal5 No.121. of 2&(. -6"MP No.,(0( of 2&(.5 F $hyam Narain Pandey Ds. $tate of @.P. (.. As against that respondents are relying upon folloing decisionsC3 (. A;6 (022 $- 0(( F %ha8ur 6am Ds. $tate of Aihar. 2. A;6 (0,, $- 022 F @smanbhai Daoodbhai Memon Ds. $tate of 9ujarat. ). 42&(&5(2 $-- 100 F National -ommission of Women Ds. $tate of Delhi. .. 42&&.5) $-- ).0 F Asho8 Bumar Pandey Ds. $tate of W.A. 1. 4(00,5' $-- ('' F Panchhi and >rs. Ds. $tate of @.P. 2. 4(0025. $-- 21) F $imranjit $ingh Mann Ds. @nion of ;ndia E Anr. '. 4(0025. $-- 222 F Baramjeet $ingh Ds. @nion of ;ndia. Page 9 of 14 R/CR.RA/490/2013 CAV JUDGMENT ,. 4(00(5) $-- '12 F #anata Dal Ds. !.$.-hodhary E >rs. 0. 42&()5' $-- ',0 F Mohit Alias $onu E Anr. Ds. $tate of @ttar Pradesh E Anr. (&. 4(0''5. $-- ()' F Amar Nath E >rs. Ds. $tate of !aryana E Anr. ((. 42&&252 $-- 2() F 6ajiv 6anjan $ingh G"alan7 4D;;;5 Ds. @nion of ;ndia E >rs. (2. 42&&&5( $-- 2'2 F #ogendra Naha8 E >rs. Ds. $tate of >rissa E >rs. (). 42&()52 $-- )0, F Bishore $amrite Ds. $tate of @.P. E >rs. (.. A;6 (0,, $- 022 F @smanbhai Daoodbhai Memon E >rs. Ds. $tate of 9ujarat. (1. "earned Public Prosecutor has relied upon folloing citationsC3 (. 42&(&5(2 $-- 100 F National -ommission for Women Ds. $tate of Delhi. 2. A;6 (00) $- 2,& 3 $imranjit $ingh Mann v. @nion of ;ndia. ). A;6 2&&( $- (')0 3 Dinoy Bumar v. $tate of @.P. .. A;6 2&(( $- (1,, 3 Milind $hripad -handur8ar v. Balim M. Bhan and Anr. 1. #udgment in the case of -riminal Misc.Application No.(&.12 of 2&(. ith -riminal Appeal No.0(& of 2&() of 9ujarat !igh -ourt dated (.(&.2&(). (2. !oever, as aforesaid, those citations on the issue of lo#$s standi are not re<uired to be e+plained in detail since on factual details itself, there is a clarity that petitioners do not have lo#$s standi to file such a revision application. ('. %herefore, there is no no necessity to discuss the further arguments and allegation regarding practice being folloed by the $essions -ourt or by the Public Prosecutor. %o avoid a controversy in future, if e consider the provision of $ection ),0 regarding suspension of sentence pending appeal and releasing the appeal on bail, respondents are right hen they argue that there is no need to hear the Public Prosecutor in such a case before passing any order u/s.),0 and, therefore, Page 10 of 14 R/CR.RA/490/2013 CAV JUDGMENT entire set of allegations by the petitioners regarding Public Prosecutor before the $essions -ourt is unsustainable. :or the purpose, it ould be appropriate to recollect the provision of $ub3$ection 4(5 of $ection ),0, hich reads as underC3 389. Suspension of sentence pending the appeal; release of appellant on bail. 4(5 Pending any appeal by a convicted person, the Appellate -ourt may, for reasons to be recorded by it in riting, order that the e+ecution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his on bond. Provided that the Appellate -ourt shall, before releasing on bail or on his on bond a convicted person ho is convicted of an offence punishable ith death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for shoing cause in riting against such releaseC Provided further that in cases here a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. (,. %he bare reading of the proviso to $ub3section 4(5, hich is inserted .e.f. 2).2.2&&2, ma8es it clear that no it is mandatory to give opportunity to the Public Prosecutor for shoing cause before releasing on bail a convict person, ho is convicted of offence punishable ith death or imprisonment for life or imprisonment for a term not less than (& years. When such proviso is added, there is reason to believe that it is not compulsory for the -ourt to call upon the Public Prosecutor hile releasing the person on bail if sentence is for less than (& years, more particularly, hen the second proviso confirms that in case hen a convict person is released on bail, it shall be open for the Public Prosecutor to file an application for the cancellation of bail. ;t is obvious that $ection ),0 is dealing ith the suspension of sentence as ell as releasing the appellant on bail and, therefore, such condition ould be applicable in both the cases. $uch observation is necessary at this stage only because of the repeated arguments by the petitioners, referring the Page 11 of 14 R/CR.RA/490/2013 CAV JUDGMENT impugned judgment that Public Prosecutor has not argued anything before the trial -ourt to oppose such an application. $urprisingly, hen petitioners have already admitted that even otherise application at *+h., is not necessary and that respondent No.2 is otherise getting benefit of suspension of his sentence because of provision of $ub3section 4.5 of $ection , of 6epresentation of Peoples Act, there is no reason for the prosecutor before the trial -ourt to oppose such an application. !oever, it cannot be ignored that the trial -ourt has recorded in one sentence that he has heard learned D.9.P for the respondent F $tate and perused the record of the loer -ourt. %herefore, it cannot be said that District 9overnment Pleader has not opposed the application, hich otherise cannot be opposed as recorded herein above. %herefore, such an argument and attempt to loer don the morale of the $essions -ourt is seems to be nothing but an attempt to commit the contempt of -ourt, more particularly coupled ith such arguments hen petitioners have alleged against the attitude of the concerned #udicial >fficer ith concerned District 9overnment Pleader and also tried to get the -riminal Appeal transferred from the -ourt of concerned #udicial >fficer. (0. ; have perused the impugned order and ; do not find any illegality, irregularity, arbitrariness or perverseness in such an order, though learned senior counsel Mr.N.D.Nanavati tried to emphasi?e that $essions #udge has ta8en @3turn after e+plaining the provision of la in paragraph ., but alloed the application. @nfortunately, this is nothing but an attempt to ta8e advantage of approbate and reprobate both i.e. on one hand, hen it is categorically and fairly admitted that irrespective of application and order at *+h., and impugned order, the respondent No.2 certainly gets the benefit of $ub3section . of $ection , of 6epresentation of Peoples Act and thereby his position ould not change even in absence of such application and on the other hand, petitioners find fault ith the impugned order and more particularly language of such order hen Page 12 of 14 R/CR.RA/490/2013 CAV JUDGMENT submission by learned D.9.P are not reproduced. $uch practice is certainly re<uired to be condemned. 6espondents have also pointed out that in fact, as per the settled legal position of criminal jurisprudence, anyone if ants to add something against the accused in any criminal trial, including complainant, they have the right to submit their vies through the Public Prosecutor and 8noing it fully ell, atleast one of the petitioner, namely, Dilipbhai #ivabhai Batariya has filed an application at *+h.2 in the same -riminal Appeal No.22 of 2&() see8ing permission to submit his case in an application for bail and suspension of sentence by the respondent No.2 being appellant and original accused of the matter. ;t is also evident on record that by order dated 2.'.2&(), $essions -ourt has hile dismissing the application, directed said Dilipbhai #ivabhai Batariya to submit his submission through the 9overnment Pleader. %herefore, it is submitted that hen such order is not challenged, it becomes final and hen a chance is given to petitioners to submit their grievance, if any, no, they have no reason to allege against the $essions -ourt or prosecutor. 2&. ;t is also evident from the record that petitioner has gone to the e+tent by filing an application at *+h.2( before the $essions -ourt so as to pressuri?e the $essions -ourt to rescue itself from the case and thereby to see that the criminal appeal could not be decided at the earliest hen they prayed to postpone the hearing of the criminal appeal on the ground that they have filed an application for transfer of the appeal from the -ourt and in present revision applications though there is not stay against the proceedings of criminal appeal or by any competent -ourt. $uch application as dealt ith by the $essions -ourt in detail and rejected it by order dated ....2&(.. Petitioners have also filed another application at *+h.)) in the appeal, disclosing that they have no faith in the -ourt and, therefore, they ould see8 transfer of the case. %he $essions -ourt has no option but to 8eep the matter in abeyance for (1 days hen it as alleged Page 13 of 14 R/CR.RA/490/2013 CAV JUDGMENT that application is filed against the concerned #udge before the !igh -ourt ma8ing allegation against him, but ith direction that applicants shall produce relevant evidence as alleged by them in their application before the -ourt ithin ) days and arned the applicants to remain in their limit hile ma8ing such submissions. Practically, perusal of the record calls for scrutiny of all these applications and criminal appeal pending before the $essions -ourt, Porbandar so as to verify that hether contempt proceedings can be initiated against the petitioners or not. 2(. ;n any case, perusal of entire record certainly ma8es it clear that these applications are nothing but an abuse of judicial process. 22. ;n vie of above facts and circumstances, ; do not see any substance in these revision applications and, hence, same deserve to be dismissed. 2). :or the foregoing reasons, all -riminal 6evision Applications are dismissed. (S.G.SHAH, J.) binoy Page 14 of 14