1. Rule. Learned advocate Mr. Radhakishan Varde waives service of notice of rule on behalf of respondent.
2. The petitioner-original complainant has filed this petition with a prayer to quash and set aside the order dated 23.9.2010 passed by the learned Additional Sessions Judge, Deesa in Criminal Revision Application No. 60 of 2010 and further be pleased to confirm the order dated 7.8.2010 passed by the learned 3rd Additional Chief Judicial Magistrate, Deesa below application Exh. 62 in Criminal Case No. 1754 of 2009.
3. The brief facts giving rise to this petition are as under:
3.1 An offence came to be registered with Deesa City Police Station being C.R No. I - 59 of 2009 for the offences punishable under Sections 365, 387, 511, 386, 34, 120(B) and 506(2) of the Indian Penal Code and under Section 25(1)(A) of the Arms Act on 27.3.2009 alleging inter-alia that when the complainant Dipakkumar Dhirajlal Thakkar resident of Deesa Taluka was sitting at the temple of Sai Baba, the respondent-accused along with other accused came there in Alto Car bearing Registration No. GJ-1-HP-1 after hatching conspiracy and caught hold of the complainant. Thereafter on the point of revolver the accused demanded money from the complainant and also tried to kidnap him. However, on raising screams, the persons from the surrounding area assembled there and hence the accused fled away from the place of offence in their car. It is also alleged that prior to this incident also the accused had threatened the complainant and taken Rs. 50,000/- from him. Thereby the accused have committed alleged offences. Thereafter investigation was carried out and the accused came to be arrested in connection with the alleged offences.
3.2 Thereafter chargesheet came to be filed before the learned Magistrate, Deesa for the offences punishable under Sections 365, 387, 511, 386, 34, 120(B) and 506(2) of the Indian Penal Code and under Section 25(1)(A) of the Arms Act against the accused persons which came to be registered as Criminal Case No. 1754 of 2009.
3.3 However, since there is a prima facie case against the accused persons for the offences punishable under Sections 364, 394 and 398 of the IPC, which are not included at the time of filing of the chargesheet, the complainant submitted an application Exh. 62 in Criminal Case No. 1754 of 2009 for adding Sections 364, 394 and 398 of the IPC. After hearing the parties, the learned Magistrate, Deesa was pleased to allow application Exh. 62 by which Sections 364, 394 and 398 of the IPC are added in the chargesheet.
3.4 Being aggrieved and dissatisfied with the said order, the respondent-accused herein preferred Criminal Revision Application No. 60 of 2010 before the learned Additional District & Sessions Judge, Deesa under Sec. 397 of the Criminal Procedure Code.
3.5 The learned Additional Sessions Judge, Deesa was pleased to allow the Revision Application of the respondent-accused and thereby quashed and set aside the order dated 7.8.2010 passed by the learned Magistrate, Deesa below application Exh. 62 in Criminal Case No. 1754 of 2009. Hence, the petitioner-State has filed this application.
4. Learned APP Mr. L.R Pujari for the petitioner-State submitted that the impugned order dated 23.9.2010 passed by the learned Additional Sessions Judge, Deesa in Criminal Revision Application No. 60 of 2010 is bad, illegal and perverse and the same may be quashed and set aside by this Court. It is submitted that the learned Addl. Sessions Judge has not assigned any cogent and convincing reasons while allowing revision application of the respondent-accused. It is also submitted that the learned Addl. Sessions Judge has failed to consider the fact that the police authority has narrated the reasons for adding Sections 364, 394 and 398 of IPC in the chargesheet, which was rightly considered by the learned Magistrate, Deesa. However, the learned Judge has ignored the finding given by the learned Magistrate, Deesa and quashed and set aside the order passed by him. It is further submitted that the learned Addl. Sessions Judge ought to have appreciated the fact that there is prima-facie case against the accused persons for the offence under Sections 364, 394 and 398 of IPC and hence the learned Magistrate, Deesa has added the aforesaid sections in the chargesheet which was not considered by the learned Addl. Sessions Judge and therefore the learned Addl. Sessions Judge has misread the provision of Sections 364, 394 and 398 of IPC. It is further submitted that the learned Addl. Sessions Judge ought to have appreciated the fact that the learned Magistrate, Deesa has considered the nature/gravity of the offence, manner in which the offence is alleged to have taken place, role attributed etc., and thereafter added Sections 364, 394 and 398 of IPC in the chargesheet filed against him. It is, therefore, prayed that the impugned order passed by the learned Addl. Sessions Judge, Deesa may be quashed and set aside.
5. Learned advocate Mr. Radhakishan Varde appearing for the respondent-accused has submitted that the impugned order passed by the learned Addl. Sessions Judge, Deesa is legal and proper and does not require any interference of this Court. It is submitted by him that the learned Addl. Sessions Judge, Deesa has rightly considered all aspects of the matter and thereby allowed the revision application and therefore there is no illegality or perversity committed by the learned Addl. Sessions Judge, Deesa and hence this petition requires to be dismissed.
6. I have heard the learned APP Mr. L.R Pujari for the petitioner-State and learned advocate Mr. Radhakishan Varde for the respondent-accused.
7. It is an admitted fact that committal order under Section 209 was passed by the learned Magistrate, Deesa on 13.1.2010 as chargesheet was filed for the offence punishable under Section 25(1)(A) of the Arms Act. The Sessions Court passed an order to the effect that the fire-arm which was mentioned as country made revolver in the muddamal receipt and so Section 25(1)(A) of the Arms Act is not applicable in the present case, but Section 25(A) of the Arms Act is applicable and therefore the learned Magistrate has jurisdiction to conduct the trial. The learned Addl. Sessions Judge, Deesa by his impugned order has quashed and set aside the committal order and sent the chargesheet back to the trial court. Thereupon after long lapse of time, the original complainant Dipak Dhirajlal Thakkar filed an application on 23.7.2010 before the learned Magistrate, Deesa in Criminal Case No. 1754 of 2009 for adding charge under Sections 364, 394 and 398 of IPC and prayed for committing the case to the Sessions Court as the said offences are triable by the Sessions Court. The said application was not submitted by the Government Pleader. It is a matter of surprise that, though the complainant has engaged a private advocate, who was appearing in the Court, and the learned Public Prosecutor is also available in the trial court, the complainant has straightway submitted an application before the trial court and the trial court has allowed the said application and come to the conclusion that the offences under Sections 364, 394 and 398 are made out. Thereafter the complainant preferred revision application before the Sessions Court, Deesa being Criminal Revision Application No. 60 of 2010 whereby the learned Addl. Sessions Judge, Deesa has allowed the revision application by holding that, while perusing the complaint, no offence is made out under Sections 364, 394 and 398 of IPC. The said order is challenged by the petitioner-State of Gujarat by filing this special criminal application.
8. This Court has gone through the Record & Proceedings of the trial court. It is pertinent to note that once the learned Addl. Sessions Judge, Deesa passed the impugned order by quashing and setting aside the order passed by the learned Magistrate, Deesa and sent the matter to the learned Magistrate, Deesa, then the only course open for the learned Magistrate was to proceed with the matter in accordance with law as per the chargesheet filed. It is also pertinent to note that though the private advocate was engaged by the complainant and the learned Public Prosecutor was also in-charge of the case, no application was submitted either by his advocate or the learned Public Prosecutor before the trial court for adding charge under Sections 364, 394 and 398 of IPC and thereupon after a long lapse of time, the complainant submitted an application before the trial court. Under these circumstances, the trial court should not have decided said application by discussing the evidence on record as trial has yet not been commenced before the trial court.
9. It is also pertinent to note that the Investigating Officer had also not preferred any application through the learned Public Prosecutor for adding the said charge. It is a settled legal position that prima facie the Court has to conduct the criminal trial on basis of complaint and statement recorded by the police during the investigation. If, during the trial, it has come on evidence that, any offence is made out under the provisions of IPC, then, during the trial, the trial court can pass appropriate order for adding relevant section of IPC. In view of the above, the learned Addl. Sessions Judge, Deesa has rightly come to the conclusion that the learned Magistrate has committed an error in adding Section 364, 394 and 398 of IPC at this juncture. It is also rightly observed that no application was submitted by the prosecution side for further investigation under Section 173 of Criminal Procedure Code. It is also rightly observed that on basis of the chargesheet submitted by the Investigating Officer, the learned Magistrate can take cognizance of the offence. However, chargesheet is not filed for above-referred sections. It is a settled position of law that, during the trial, from the oral as well as documentary evidence, the trial court comes to the conclusion that any other offence under the provisions of IPC is made out, then the trial court has all powers to pass appropriate order for adding the sections. Therefore, in the opinion of this Court, the learned trial court has committed a grave error in allowing the said application and the impugned order passed by the learned Addl. Sessions Judge, Deesa is legal and proper and not required to be interfered with by this Court. Hence this petition is dismissed. Rule is discharged.
10. The Registry is directed to send the record & proceedings of the case to the trial court forthwith as accused is in jail since long. The trial court is directed to decide and dispose of the case as early as possible as the accused is in jail for the last about two years.