Sie sind auf Seite 1von 14

R/CR.RA/490/2013

CAV JUDGMENT

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 ?

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

5 Whether it is to be circulated to the civil judge ?

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

DILIPBHAI JIVABHAI KATARIYA Versus

Applicant(s)

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

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

CORAM: 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 without overlapping their submissions submitted different issues and learned Public Prosecutor Mr.H.L.Jani has argued on behalf of the State. The impugned order in all the revision applications is dated 20.07.2013 below Exh.8 in Criminal Appeal No.22 of 2013 by Sessions Judge, Porbandar. Such application was filed by appellant being original accused No.4 in such appeal, u/s.389 of the Cr.P.C. to stay his conviction in Criminal Case No.11258 of 2006 and Criminal Case No.117 of 2008 confirmed by the Chief Judicial Magistrate, Porbandar. The appellant before the Sessions Court is challenging such conviction and, therefore, when sentence is stayed by granting bail, the appellant has also prayed for staying the order of conviction.

3. At the outset, learned senior counsel Mr.N.D.Nanavati has fairly

concealed and admitted that, in fact, though the impugned order is order whereby 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 Exh.8 and impugned order, practically, pursuant to the provisions of Section 389 of Cr.P.C., when Criminal Appeal is preferred in time and considering provision of Sub-Section (4) of Section 8 of the Representation of the Peoples Act, pursuant to the judgment of Hon’ble Supreme Court, declaring such Sub-Section as vires prospectively with effect from 10.7.2013 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 2005; the conviction of respondent No.2 is automatically stayed and, therefore, irrespective of application at Exh.8 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 whereby he is protected as per provision of Sub-Section (4) of Section 8 of Representation of the Peoples Act.

4. Though the fact are known to all, it would be appropriate to

recollect that respondent No.2 is at present sitting M.L.A and Minister of the State of Gujarat. However, pursuant to FIR No.83 of 2006 dated 5.10.2006 u/ss.447, 379 and 114 of the IPC, a chargesheet was filed against him and in Criminal Case No.117 of 2008 initiated from such FIR and chargesheet, ultimately, he was convicted by the C.J.M., Porbandar. In her judgment dated 15.6.2013, C.J.M., Porbandar had convicted respondent No.2 herein with three other accused and awarded imprisonment of three years and penalty of Rs.5000/- for committing the offence u/s. 379 of the IPC. The hue and cry of the petitioners are therefore to the effect that only because respondent No.2 is sitting M.L.A and Minister of the State, though he has committed an offence as aforesaid, and though he is convicted by the competent Court, the Sessions Court has openly helped accused No.2 in staying his conviction by allowing his application at Exh.8 and that State being prosecuting agency instead of opposing such application, openly supported the accused in getting his application allowed before the Sessions Court. It is further alleged that same attitude has been continued in the present revision application when State is instead of supporting petitioners, supports respondent No.2 .

5. However, unfortunately, when learned senior counsel Mr.N.D.Nanavati has fairly admitted that there would 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 Sub-

Page 3 of

14

R/CR.RA/490/2013

CAV JUDGMENT

Section (4) of Section 8 of the Representation of the Peoples Act, when conviction of respondent No.2 does not disqualify him to be a member of legislative assembly and thereby he can continue on the post of Minister; now, practically, this marathon exercise by all the four petitioners in all these revision applications are nothing but an attempt to make a mountain of a molehill and to get cheap publicity so as to continuously argue in public forum that State Government has continued the person as a minister and M.L.A though he is convicted by the competent Court.

6. Therefore, practically, now this issue and argument both on the

point of locus standi of the petitioners as well as suspension of sentence, has become academic in nature and, practically, may not require to be

discussed at length, since there is nothing adverse and thereby illegal or arbitrary or there is no perverseness in the impugned order. Thereby, simple order in all these revision applications would be nothing, but its rejection.

7. However, unfortunately and disturbingly, the entire submission by

the petitioners and target is judicial process and judiciary at large, more particularly, Presiding Officer of the Sessions Court, who has passed the impugned order as well as the State machinery in general and in particular the Public Prosecutor before the Sessions Court and before this Court. As aforesaid, practically, when impugned order is otherwise 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 Sessions Court as well as Public Prosecutor by petitioners who are otherwise not party before the Sessions Court in the appeal where such impugned order is passed. Therefore, respondents are right in objecting to entertain such revision on the issue of locus standi of the petitioners. Though 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 exercise by petitioners inasmuch as if at all as argued by them,

Page 4 of

14

R/CR.RA/490/2013

CAV JUDGMENT

they want to emphasize on the practice followed by the Sessions Court and the State as prosecuting agency through their prosecutors, they would have preferred appropriate litigation, may be PIL, if law and rule so permit. Therefore, I do not see any reason to interfere in the impugned order in any manner. However, for coming to such conclusion and to answer the issues raised by the petitioners, there is no option but to verify certain details and to determine the relevant issues.

8. Unfortunately, on factual aspect also, the basic facts are certainly

against the petitioners, who are not only required to be condemned, but needs to be warned from initiating any such litigation in future either for personal vengeance or for political benefit or for cheap publicity or for

some ulterior motive, I have reason to say so considering the factual details.

9. If we peruse the original FIR dated 5.10.2006, it becomes clear that

such FIR is filed by one Umeshbhai Ishwarbhai Bhavsar as Asst.Manager of Saurashtra Chemicals Ltd., Porbandar. In his complaint, he has specifically stated that he is serving as Assistant Manager in Saurashtra Chemicals Ltd. since 11 years and that his company has acquired certain sites in Boriya area of Porbandar Taluka on lease, which is admeasuring in all 310 acres and that they are paying rent to the Government and their company has to extract limestone from such land, but they have not started to extract limestone and have yet not assigned the contract for such extraction. It is further stated that on 5.10.2006, they came to know, when they inspected the land, that some limestone have been stolen by extraction from such land and on inquiry from the persons available at the place, they came to know that respondent No.2 and one other person against whom chargesheet and criminal case has been initiated, are illegally extracting limestone for last five years and sending such limestone to TATA company. It is his say that how much limestone has been stolen and of how much amount, would be disclosed after making

Page 5 of

14

R/CR.RA/490/2013

CAV JUDGMENT

survey. Therefore, he has lodged a complaint against such persons for stealing limestone from the land, which was leased to them. However, so far as 60 acres land is concerned, it is his case that it was obtained by his company from one Laxmanbhai Aagat. Though the statement is not clear and vague, as it transpires that initially the lease was in the name of Laxmanbhai Aagat, and in 1994, probably, it was sub-leased to Saurashtra Chemicals Ltd. The bare perusal and reading of complaint makes it very much clear that complaint is basically u/s.379 regarding extraction and theft of limestone from the property which is leased in favour of Saurashtra Chemicals Ltd. and, therefore, it is a private complaint by a private person for his property with allegation that it has been stolen and that too with such a vague statement in the complaint that such extraction work was continued or carried out for last five years. One more surprising statement is to the effect that complainant was aware about the fact that such allegedly stolen limestone was going to TATA factory, then, practically, it is a dispute between two business houses, namely, Saurashtra Chemicals Ltd. And Tata Factory in surrounding area and more particularly even after getting the lease, if Saurashtra Chemicals Ltd. has never bothered either to secure the boundaries of lease property or to extract the requisite material being limestone from the land, practically, this is nothing, but a dispute between two limited companies. Though during investigation, police has tried to find out the way and means and method of transporting limestone through the land in question to Tata Chemicals Ltd., Mithapur, it seems that police has not bothered to inquire from Tata Chemicals Ltd. and to join anybody from such company as accused when they have accepted or purchased such limestone from some person. No doubt, all such scrutiny and observation are not required at this stage when Criminal Appeal is pending before the competent Court, its reference is necessary for the simple reason to understand that this is not a case against the public property for which petitioners are making hue and cry that a person, who has committed theft

Page 6 of

14

R/CR.RA/490/2013

CAV JUDGMENT

of public property, is being supported by the Court and the State 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 would certainly be convicted and to that extent, the law will take its own course.

10. However, in view of such background, the real question is about

the locus standi of the present petitioners, who are nowhere connected either with limestone or with the complaint or with the property in any manner whatsoever. However, 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. It is submitted by respondent No.2 that because the candidate of other parties have lost the elections and when respondent No.2 was selected as minister, the rival group is trying to harass/disturb and create a media trial and publicity against him by such litigation. It seems that there is some substance in such submission. However, at present, we do not have to decide such issues and, therefore, confirming that the issue regarding locus standi of present petitioner is also one of the basic issue in this revision application, it is made clear that whatever is observed herein above on factual aspect are only for a limited purpose to decide the of such issue of locus standi and it shall in no way affect the pending appeal against conviction and that trial Court is certainly free to decide the appeal purely on its own merits in accordance with law i.e. relying upon the material available on record.

11. For above discussion and observation, it would be appropriate to

refer and recollect certain material and pleadings from the record. It is to be recollected here that all the respondents are in no way connected either with the complainant or even with the respondent No.2 since none of them are residing at Porbandar, but most of them are residing in Ahmedabad. Whereas, one Dilipbhai Jivabhai Katariya, the petitioner in Criminal Revision Application No.490 of 2013 is residing at Amreli. It is

Page 7 of

14

R/CR.RA/490/2013

CAV JUDGMENT

therefore relevant to recollect the averments in pleading of such revision applications wherein though all the petitioners are practically same in verbatim, barring personal details, in paragraph 23 of the applications all the petitioners have stated that since the respondent No.2 is a powerful person having political patronage, it is possible that respondent No.2 may harass Dilipbhai Jivabhait Katariya to stop pursuing the case against the respondent No.2 and that Mr.Dilipbhai Jivabhai Katariya may also meet with the same fate of Mr.Bhagubhai Devani and that Mr.Dilipbhai Jivabhai Katariya may also be forced to back out and stop pursuing the case against respondent No.2 and, therefore, petitioner has filed the present Criminal Revision Application. However, unfortunately, none of these applications have clarified and disclosed that how they are concerned with Dilipbhai Jivabhai Katariya, who is residing at Amreli and rest of the petitioners are residing in Ahmedabad.

12. Therefore, it is certain that in fact present revision applications are

not against the State, Public Prosecutor as well as the concerned Sessions Court only, but it is mainly to help Dilipbhai Jivabhai Katariya. If at all, there is some disturbance between Dilipbhai Jivabhai Katariya and respondent No.2, it can be taken care of in appropriate proceedings against respondent No.2 including proper complaint, but in any case, such litigations are not warranted and it certainly requires to be condemned to that extent. Now, it is certain that present petitioners do not have a locus standi. Therefore, several citations which are referred by both the sides are though listed herein below, they are not required to be discussed in detail inasmuch as when it has been certain and clear that the present petitioners have no locus standi. However, 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, now it becomes clear that

Page 8 of

14

R/CR.RA/490/2013

CAV JUDGMENT

there is no locus standi to the petitioners in filing such a petition. But, so

far as present petitions are concerned, it becomes clear and obvious that

petitioners do not have locus standi, more particularly, when complaint is

a private complaint u/s.379 of the IPC for which complainant is very

much there to agitate and initiate any such issue. Even at the cost of

repetition, it is to be recollected that by filing such petitions, practically,

petitioners are trying to get political mileage when such issue is

repeatedly being raised that particular Government is continuing the

M.L.A as a Minister though he is convicted by the Court. Needless to say

that irrespective the present legal position after the judgment in Lily

Thomas (supra) when present respondent is not affected by such

judgment, there is no reason to find fault with the impugned order only

because of the position of respondent No.2.

13. Petitioners have relied upon following decisions:-

1. (2009)5 SCC 787 - Sanjay Dutt Vs. State of Maharashtra through CBI Bombay.

2. (1984)2 SCC 500 - A.R. Antulay Vs. R.S

3. (1987) 1 SCC 288 - Sheonandan Paswan v. State of. Bihar & Ors.

4. Criminal Appeal No.1515 of 2014 (Arising out of S.L.P. (Criminal) No.5654 of 2014 CRLMP No.8191 of 2014) – Shyam Narain Pandey Vs. State of U.P.

Nayak.

14. As against that respondents are relying upon following decisions:-

1. AIR 1966 SC 911 – Thakur Ram Vs. State of Bihar.

2. AIR 1988 SC 922 – Usmanbhai Dawoodbhai Memon Vs. State of Gujarat.

3. (2010)12 SCC 599 – National Commission of Women Vs. State of Delhi.

4. (2004)3 SCC 349 – Ashok Kumar Pandey Vs. State of W.B.

5. (1998)7 SCC 177 – Panchhi and Ors. Vs. State of U.P.

6. (1992)4 SCC 653 – Simranjit Singh Mann Vs. Union of India & Anr.

7. (1992)4 SCC 666 – Karamjeet Singh Vs. Union of India.

Page 9 of

14

R/CR.RA/490/2013

CAV JUDGMENT

8. (1991)3 SCC 756 – Janata Dal Vs. H.S.Chowdhary & Ors.

9. (2013)7 SCC 789 – Mohit Alias Sonu & Anr. Vs. State of Uttar Pradesh & Anr.

10. (1977)4 SCC 137 – Amar Nath & Ors. Vs. State of Haryana & Anr.

11. (2006)6 SCC 613 – Rajiv Ranjan Singh ‘Lalan’ (VIII) Vs. Union of India & Ors.

12. (2000)1 SCC 272 – Jogendra Nahak & Ors. Vs. State of Orissa & Ors.

13. (2013)2 SCC 398 – Kishore Samrite Vs. State of U.P. & Ors.

14. AIR 1988 SC 922 – Usmanbhai Dawoodbhai Memon & Ors. Vs. State of Gujarat.

15. Learned Public Prosecutor has relied upon following citations:-

1. (2010)12 SCC 599 – National Commission for Women Vs.

State of Delhi.

2. AIR 1993 SC 280 - Simranjit Singh Mann v. Union of India.

3. AIR 2001 SC 1739 - Vinoy Kumar v. State of U.P.

4. AIR 2011 SC 1588 - Milind Shripad Chandurkar v. Kalim M. Khan and Anr.

5. Judgment in the case of Criminal Misc.Application No.10452 of 2014 with Criminal Appeal No.910 of 2013 of Gujarat High Court dated 1.10.2013.

16. However, as aforesaid, those citations on the issue of locus standi

are not required to be explained in detail since on factual details itself,

there is a clarity that petitioners do not have locus standi to file such a

revision application.

17. Therefore, there is now no necessity to discuss the further

arguments and allegation regarding practice being followed by the

Sessions Court or by the Public Prosecutor. To avoid a controversy in

future, if we consider the provision of Section 389 regarding suspension

of sentence pending appeal and releasing the appeal on bail, respondents

are right when they argue that there is no need to hear the Public

Prosecutor in such a case before passing any order u/s.389 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 Sessions Court is unsustainable. For the purpose, it would be appropriate to recollect the provision of Sub-Section (1) of Section 389, which reads as under:-

389. Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution 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 own bond.

Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where 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.

18.

The bare reading of the proviso to Sub-section (1), which is

inserted w.e.f. 23.6.2006, makes it clear that now it is mandatory to give opportunity to the Public Prosecutor for showing cause before releasing on bail a convict person, who is convicted of offence punishable with death or imprisonment for life or imprisonment for a term not less than 10 years. When such proviso is added, there is reason to believe that it is not compulsory for the Court to call upon the Public Prosecutor while releasing the person on bail if sentence is for less than 10 years, more particularly, when the second proviso confirms that in case when a convict person is released on bail, it shall be open for the Public Prosecutor to file an application for the cancellation of bail. It is obvious that Section 389 is dealing with the suspension of sentence as well as releasing the appellant on bail and, therefore, such condition would be applicable in both the cases. Such 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 Court to oppose such an application. Surprisingly, when petitioners have already admitted that even otherwise application at Exh.8 is not necessary and that respondent No.2 is otherwise getting benefit of suspension of his sentence because of provision of Sub-section (4) of Section 8 of Representation of Peoples Act, there is no reason for the prosecutor before the trial Court to oppose such an application. However, it cannot be ignored that the trial Court has recorded in one sentence that he has heard learned D.G.P for the respondent – State and perused the record of the lower Court. Therefore, it cannot be said that District Government Pleader has not opposed the application, which otherwise cannot be opposed as recorded herein above. Therefore, such an argument and attempt to lower down the morale of the Sessions Court is seems to be nothing but an attempt to commit the contempt of Court, more particularly coupled with such arguments when petitioners have alleged against the attitude of the concerned Judicial Officer with concerned District Government Pleader and also tried to get the Criminal Appeal transferred from the Court of concerned Judicial Officer.

19. I have perused the impugned order and I do not find any illegality,

irregularity, arbitrariness or perverseness in such an order, though learned senior counsel Mr.N.D.Nanavati tried to emphasize that Sessions Judge has taken U-turn after explaining the provision of law in paragraph 4, but allowed the application. Unfortunately, this is nothing but an attempt to take advantage of approbate and reprobate both i.e. on one hand, when it is categorically and fairly admitted that irrespective of application and order at Exh.8 and impugned order, the respondent No.2 certainly gets the benefit of Sub-section 4 of Section 8 of Representation of Peoples Act and thereby his position would not change even in absence of such application and on the other hand, petitioners find fault with the impugned order and more particularly language of such order when

Page 12 of

14

R/CR.RA/490/2013

CAV JUDGMENT

submission by learned D.G.P are not reproduced. Such practice is certainly required to be condemned. Respondents have also pointed out that in fact, as per the settled legal position of criminal jurisprudence, anyone if wants to add something against the accused in any criminal trial, including complainant, they have the right to submit their views through the Public Prosecutor and knowing it fully well, atleast one of the petitioner, namely, Dilipbhai Jivabhai Katariya has filed an application at Exh.6 in the same Criminal Appeal No.22 of 2013 seeking 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. It is also evident on record that by order dated 6.7.2013, Sessions Court has while dismissing the application, directed said Dilipbhai Jivabhai Katariya to submit his submission through the Government Pleader. Therefore, it is submitted that when such order is not challenged, it becomes final and when a chance is given to petitioners to submit their grievance, if any, now, they have no reason to allege against the Sessions Court or prosecutor.

20. It is also evident from the record that petitioner has gone to the

extent by filing an application at Exh.21 before the Sessions Court so as to pressurize the Sessions Court to rescue itself from the case and thereby to see that the criminal appeal could not be decided at the earliest when 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 Court and in present revision applications though there is not stay against the proceedings of criminal appeal or by any competent Court. Such application was dealt with by the Sessions Court in detail and rejected it by order dated 4.4.2014. Petitioners have also filed another application at Exh.33 in the appeal, disclosing that they have no faith in the Court and, therefore, they would seek transfer of the case. The Sessions Court has no option but to keep the matter in abeyance for 15 days when it was alleged

Page 13 of

14

R/CR.RA/490/2013

CAV JUDGMENT

that application is filed against the concerned Judge before the High Court making allegation against him, but with direction that applicants shall produce relevant evidence as alleged by them in their application before the Court within 3 days and warned the applicants to remain in their limit while making such submissions. Practically, perusal of the record calls for scrutiny of all these applications and criminal appeal pending before the Sessions Court, Porbandar so as to verify that whether contempt proceedings can be initiated against the petitioners or not.

21. In any case, perusal of entire record certainly makes it clear that

these applications are nothing but an abuse of judicial process.

22. In view of above facts and circumstances, I do not see any

substance in these revision applications and, hence, same deserve to be dismissed.

23. For the foregoing reasons, all Criminal Revision Applications are

dismissed.

binoy

Page 14 of

14

(S.G.SHAH, J.)