R/SCR.

A/3191/2016 JUDGMENT DATED: 23/11/2022

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 3191 of 2016

With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2022
In
R/SPECIAL CRIMINAL APPLICATION NO. 3191 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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

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 or any order made thereunder ?

==========================================================
STATE OF GUJARAT
Versus
HAFIZHUSAIN @ ADNAN @ JAID TAJJUDIN GOSMOHIDDIN MULLA
TAJUDDIN MULLA & 23 other(s)
==========================================================
Appearance:
MR MITESH AMIN, PUBLIC PROSECUTOR with MS MAITHILI MEHTA, APP
for the Applicant(s) No. 1
D.D. PATHAN(5923) for the Respondent(s) No. 1,13,14,18,19,23,6
MR KHALID G SHAIKH(3233) for the Respondent(s) No. 15,7
MR S M VATSA(6000) for the Respondent(s) No. 1,13,14,18,19,23,6
RULE SERVED for the Respondent(s) No.
10,11,12,16,17,2,20,21,22,24,3,4,5,8,9
==========================================================

CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

Date : 23/11/2022

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ORAL JUDGMENT

1. By way of present writ-application the prosecution –

State of Gujarat has invoked Article 226 and 227 of the

Constitution of India read with Section 482 of the Code of

Criminal Procedure, 1973 challenging the order dated

16.4.2016 passed by the learned Additional Sessions Judge,

Court No.15, City Sessions Court, Ahmedabad, below Ex.81

and 82 in Sessions Case No.389 of 2013 whereby, the learned

Judge has discharged the respondents - accused from the

charges levelled against them under Section 130 of the Indian

Penal Code, 1860.

2. The brief facts as stated by the writ-applicant herein for

consideration of the present dispute are stated thus :-

2.1 There were serial bomb blasts in the City of Ahmedabad

in the year 2008, wherein an FIR came to be lodged qua the

present accused with Shahibaug Police Station being C.R. No.

I-236/2008 for the offences punishable under Sections 120(B),

121 A, 124 A, 153(1) (b) (a), 302, 307, 326, 427, 435, 468,

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471 of Indian Penal Code read with Sections 3, 5, 6 , 7 of

Explosive Substance Act, also read with Sections 10, 13, 16,

18, 19, 20, 23, 38, 39 and 40 of Unlawful Activities

( Prevention ) Act, read with Sections 3, 4 of Damage to

Public Properties Act, read with Section 25 (1) (b)(a), 27 of

Arms Act, read with Sections 65, 66 of Information

Technologies Act. In that incident 56 persons lost their lives

and 240 persons were injured.

2.2 Few accused were arrested and charge-sheeted in

connection with the aforesaid offence of serial bomb blast and

the same culminated in Sessions Case No. 38 of 2009 and

others. Charges came to be framed in the said connection and

the accused were lodged at Sabarmati Central Jail,

Ahmedabad.

2.3 The accused being in jail and offenders of the offence

against the State under Section 121A and 124A, are considered

to be the enemies of the State and further they being in the

prison the Prisoners Act is also applicable to them, therefore

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any act committed by the accused which is against the

Prisoners Act, are governed by the said Act and also by other

criminal law.

2.4 It is the case of the first informant i.e. Govindbhai –

Subedar who was on duty on 10.02.2013 that while he was on

duty alongwith other officers of Sabarmati Central Jail,

Ahmedabad the first informant discovered a tunnel in Yard No.

4, barrack No.4/2 of Sabarmati Central Jail, Ahmedabad dug-

up by the accused persons in connivance with each other with

an intention to escape from the lawful custody. The

Investigation of the FIR was entrusted to Crime Branch,

Ahmedabad City by way of order dated 11.02.2013 passed by

the Commissioner of Police, Ahmedabad.

2.5 The accused were not allowed to attend the court

proceedings as they are considered to be the offenders of such

a grave crime and therefore, the government had passed an

order under Section 268 of Code of Criminal Procedure

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excluding these accused from attending the court's proceedings

and that the trial was conducted through video conference.

2.6 These accused had no other way to come out of the

prison and escape and therefore, a conspiracy was hatched to

escape from the prison by digging up a tunnel from the

premises of the jail to outside the jail campus, which is well

known as "Surangkand".

2.7 The accused were kept in different Yard No.4 and 5,

from where they had planned to escape by digging-up a tunnel

from the jail to the outside campus of the jail and had

conspired to run away in the nearby jungle.

2.8 The accused are all well educated and some of them are

having degree in Engineering and MBA and therefore they

were well conversant with many languages and techniques of

engineering. The accused no. 1 was a civil engineer, who took

the measurement of the distance from jail to outside the jail

and planned as to how long and deep the tunnel would be.

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Further all the other accused got the equipments to dig-up the

tunnel, cover it up if any jail officer visited, to distract them

etc., to understand the technique of digging up the tunnel the

accused had also got four books from the library and started

the work of digging up the tunnel which was done from

around 11.10.2012 to 11.2.2013, when during the visit of the

jail premises the officers found out that a big tunnel was being

made near the water tank behind a big tree, which was

approximately 16 ft deep and around 196 ft long, which is

outside the jail campus. An FIR being CR No.I-24/2013 was

registered with Ranip Police Station on 11.2.2013 against 14

accused persons for the offences punishable under sections 224,

120(B), 511 of IPC and under Section 45 of the Prisoners Act.

After the investigation was carried out other names of the

accused were also disclosed. The authority also prepared two

reports for adding Section 130 of IPC dated 27.2.2013 and to

add Section 42 of the Prisoners Act dated 29.4.2013. That, the

sanction was given by the concerned authority on 17.5.2013.

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2.9 After completion of the investigation in connection with

the aforesaid FIR, charge-sheet was filed against 24 accused

and the C.C No.102 of 2013 was filed at Additional Chief

Judicial Magistrate, Court No. 11, Ghee-Kanta, Ahmedabad on

18.5.2013.

2.10 The accused had approached the Sessions Court by filing

the application seeking discharge under Section 227 of Code of

Criminal Procedure praying that the accused be discharged

from the offences punishable under Section 130 of Indian Penal

Code on the ground that the accused are not State Prisoners.

The learned Sessions Court went into the technicality of the

definition of “State Prisoners” which is beyond the jurisdiction

of the concerned Court and discharged the respondents accused

from the offence punishable under Section 130 of the Indian

Penal Code by order dated 16.4.2016 passed by the learned

Additional Sessions Judge, Court no. 15, City Sessions Court,

Ahmedabad below Exh.81 and 82 in Sessions Case no. 389 of

2013 which has resulted into filing of the present petition at

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the instance of the prosecution. Paragraphs 8, 9 and 10 of the

said order dated 16.4.2016 read thus :-

“(8) Before the Court examines the merit - demerit of the

applications with the submissions of both the parties, first of
all the Court opines that there is no specific legal definition
of State Prisoners in the law. Therefore as per the citations
placed by the accused along with Annexure (E) i.e. 2002(3)
SCC Pg. 676 in the matter between Shrimant Shamrao
Suryavanshi and Another Vs. Legal Heirs of Pralhad Bhairoba
Suryavanshi and Others,Note D Para 10 and 2015(9) SCC
Page 502 in the matter between Vikramsinh @ Viki and
Others Vs. Union of India and Others, Note C Page 15 to 22.
The Hon'ble Apex Court has held that the report preceding
the legislation can legitimately be taken into consideration
while construing the provisions of an Act. Hence, the Court
has taken into consideration of Annexure (E) historical
background for the word State Prisoner in which the
provision came on the Statue Book as State Prisoner.

(9) The question which requires a thought is whether the

accused are State Prisoner as per Section 130 of IPC in the
case on hand.

(9.1) The Court has gone through Section 130 of IPC. It

especially is essential ingredients 5/9 which are (A)

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Knowledge, thata person being harbour is an offender, (B)

Assistance or attempt or harbouring to the offender to escape
from the lawful custody or an offer of or actual harbouring
of such offender by the harbourer. So, from the ingredient
word knowledge is essential in the case. If someone harbours
a person without any knowledge of whom have a State
Prisoner, he shall not be liable under Section 130 of IPC.

(9.2) Further here the word State Prisoner is also very

essential to decide the applications as prayed for. So, if we
go through Section 128 of IPC, the State Prisoner is defined
as a prisoner confined under the provisions of regulation for
confinement of State Prisoner. Such a person is arrested for
reasons of State embarrassing the due maintenance and the
alliances formed by the Indian Government with the foreign
power. Therefore if we go through Annexure (E) at Sr.No.1
Bengal Regulation III of 1818, the Court is of the opinion
that here in a case on hand the accused are not identified as
State Prisoners as per Section 128 of IPC read with Bengal
Regulation III of 1818 at Annexure (E) Page 1 to 4. Moreover
the charge of Session Case No. 38/2009 in the matter of
Serial Bomb Blast cases also not applicable to the present
case. It cannot be read as vice-a-versa for the applicability of
Section 130 of IPC.

(9.3) The Court also feels that on perusal of record and

proceedings of Session Case No. 389/2013 the Investigating

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Officer has not placed any documents or statement of

witnesses to comply the definition of State Prisoners as said
above. Even at the time of hearing the Investigating Officer
fails to do so. Therefore the Annexure (E) Sr. No. 2 Bombay
Regulation 25 of 1827 of Pg.5 to 7 helps to accused.
Therefore the Court opines that there is no sufficient evidence
or material on record to charge Section 130 of IPC against
the accused. Hence, the report of Investigating Officer for the
addition of Section 130 of IPC at a later stage of the
investigation is also deemed to be false and with misreading
of Section 130 of IPC.

(9.4) Ulterior motive behind report of Section 130 of IPC also

draw the attention against the Investigating Officer that
Police Agency by one or other pretext wants to keep the
accused behind the bar. It can be read out from the second
FIR at Annexure (D) .Why the second FIR is needed that best
reasons known to Investigating Officer but in the second FIR
the Investigating Officer has tried to fulfill the
lacunaoffirstFIR by adding a few names of Police personnels
to satisfy Section 130 of the Act. It is because if this was a
legal and just act than why the Investigating Officer has not
added the names of the Police personnels at Annexure (A). So
the procedures followed by the prosecution cast doubt on the
prosecution case and surprisingly till today despite of second
FIR at Annexure (D) Police personnels arenot arrested or the
Government has not yet proceeded with the prosecution

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sanction, accordingly. As considerable time has been passed,

the charge sheet is already filed. So by one or other way the
Investigating Officer has cleverly tried to place the present
accused under Section 130 of IPC but as above discussed
reasons Section 130 of IPC does not come into the play for
the presentcase and therefore the judgment of 1994 (3)SCC Pg
. 569 in the matter between KartarSingh Vs. State of Punjab
& Haryana does not come into play to help the prosecution
in the case, looking to the facts of the incident and
accusations. Hence, committal order is also considered as
falsity and with misreading of Section 130 of IPC, which
deserves to be set aside.

(9.5) If, at this juncture by said reasons both the applications

at Exh. :81 & 82 are allowed as per the final order than
there shall be no legal injury to the prosecution side as legal
alternative remedy at Section 323 of Cr.P.C ., remains open
for the prosecution. Hence, the submission of learned Special
P.P ., Mr. Mitesh Amin cannot be accepted.

(10) Parting with the matter both the applications at

Exh. :81 & 82 deserve to be allowed as per the final
following order. Hence, the order:

ORDER

Both the applications at Exh. :81 & 82 are allowed.

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The Investigating Officer, Crime Branch, Ahmedabad is

hereby directed and ordered to delete Section 130 of IPC
from the charge sheet of Session Case No. 389/2013,
accordingly.

The committal order of Addl. Metropolitan Magistrate,

Ahmedabad, Court No. 11 is hereby set aside.

The Registry is directed to send original charge sheet of

Session Case No. 389/2013 to Chief Metropolitan Magistrate
Court, Ahmedabad with muddamal, accordingly.

The Registry is further directed to transfer the jail warrants

of concerned accused to the Court of Chief Metropolitan
Magistrate Court, Ahmedabad, accordingly.

The order be intimated to Police Inspector, Crime Branch,

and Superintendent, Central Jail, Sabarmati, Ahmedabad.

Order portion copy be intimated to Chief Metropolitan

Magistrate Court, Ahmedabad.

The next date of the case is 30th April, 2016.

No order as to costs.

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Pronounced in the open court today on this 16th day of

April, 2016.”

3. Heard Mr. Mitesh Amin, the learned Public Prosecutor

appearing for the writ-applicant – State with Ms. Maithili

Mehta, the learned APP and Mr. Vatsa, the learned advocate

appearing with Mr. Arjun Joshi, the learned advocate

appearing for the respondents – original accused.

Submissions on behalf of the writ-applicant – State :-

4. Mr. Mitesh Amin, the learned Public Prosecutor

appearing for the writ-applicant – State submitted that the

respondents were arrested and are in jail for an FIR which was

lodged with the Shahibaug Police Station being C.R. No.I-236

of 2008 for the offences punishable under Sections 120B, 121A,

124A, 153(1)(b)(a), 302, 307, 326, 427, 435, 468 and 471 of

the Indian Penal Code read with Sections 3, 5, 6 and 7 of the

Explosive Substance Act also read with Sections 10, 13, 16, 18,

19, 20, 23, 38, 39 and 40 of the Unlawful Activities

(Prevention) Act read with Sections 3 and 4 of the Damage to

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Public Properties Act read with Sections 25(1)(b)(a) and 27 of

the Arms Act read with Sections 65 and 66 of the Information

Technologies Act. In view of aforesaid, charge-sheet came to

be filed which culminated into Criminal Case No.38 of 2009

and others. The charges were framed in connection with

aforesaid sessions case and accused were lodged at Sabarmati

Central Jail at Ahmedabad.

4.1 Mr. Amin, the learned Public Prosecutor submitted that

the present writ-application has been preferred seeking writ of

certiorari and/or any other writ order or direction in the

nature of certiorari for quashing and setting aside the order

dated 16.04.2016 passed by learned Additional Sessions Judge,

Court No. 15, Ahmedabad passed under Exh.81 and 82 in

Sessions Case No. 389 of 2013.

4.2 Mr. Amin, the learned Public Prosecutor submitted that

the present writ-application has also been preferred invoking

inherent powers for passing such orders for prevention of

abuse of process of court and to secure by meeting the end of

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justice by quashing the order dated 16.04.2016 passed by

learned Additional Sessions Judge, Court No. 15, Ahmedabad

passed under Exh.81 and 82 in Sessions Case No. 389 of 2013.

4.3 Mr. Amin, the learned Public Prosecutor submitted that

the respondents herein are ‘state prisoners’ considering the fact

that FIR bearing No I – 236/2008 was registered at Shahibaug

Police Station, Ahmedabad under the provision of Sections

120B, 121A, 124, 153(1)(b)(a), 302, 307, 326, 427, 435, 468,

471 of Indian Penal Code read with Sections 3, 5, 6 and 7 of

the Explosive Substances Act, 1883 read with Sections 10, 13,

16, 18, 19, 20, 23, 38, 39 and 40 of the Unlawful Activities

(Prevention) Act, 1967 read with Sections 3 and 4 of the

Damage to Public Property Act read with Sections 25(1)(b)(a)

and 27 of the Arms Act read with Sections 65 and 66 of

Information Technology Act. The said offence basically

pertained to serial bomb blast in the city of Ahmedabad which

took place in the year 2008 for which the abovementioned FIR

stood registered.

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4.4 Mr. Amin, the learned Public Prosecutor submitted that

considering the offence of the year 2008 bearing C. R. No. I -

236/2008, the respondents – accused were in Sabarmati Central

Jail and while the accused were in jail it was discovered that

tunnel in Yard No. 4 Barrack No. 4/2 of Sabarmati Central

Jail, Ahmedabad was digged by the accused persons in

connivance with others with an intention to escape from any

lawful custody. Hence, the said Investigation was carried out

by Crime Branch and FIR bearing No I-24/2013 was registered

under the provisions of section 224, 120B, 511 of IPC and

under Section 45 of the Prisons Act.

4.5 Mr. Amin, the learned Public Prosecutor submitted that

considering the fact that the accused were charged for the

offence under Section 121A and 124A of the Indian Penal Code

which pertains to an offence against the State under Chapter

VI read with Section 16 of the Unlawful Activities (Prevention)

Act 1967. Thus on a conjoint reading of section 121A and

124A of the Indian Penal Code, Chapter VI read with section

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15 of The Unlawful Activities (Prevention) Act 1967, the

respondents-accused would fall within the purview of ‘State

Prisoner’ or rather be considered as State Prisoners.

4.6 Mr. Amin, the learned Public Prosecutor appearing for

the applicant placed reliance on the definition of term “State

Prisoner” provided in The Chambers Dictionary (Deluxe

Edition) the same is reproduced herein which defines “State

Prisoner confined for offence against the state” which on duly

being considered with Chapter VI of Indian Penal Code read

with Section 15 of Unlawful Activities (Prevention) Act, 1967

would substantiate the contention of the applicant that the

respondents herein are state prisoners and hence they have

been accordingly charge sheeted.

4.7 Mr. Amin, the learned Public Prosecutor relied upon the

aforesaid submissions, submitted that the Court may quash and

set aside the order dated 16.04.2016 passed by learned

Additional Sessions Judge, Court No. 15, Ahmedabad passed

under Exh.81 and 82 in Sessions Case No. 389 of 2013.

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4.8 Mr. Amin, the learned Public Prosecutor in view of the

aforesaid submissions submitted that the present writ-

application has been preferred for prevention of abuse of

process of law and to secure the end of justice by quashing

the impugned order dated 16.4.2016.

Submissions on behalf of the respondents – accused Nos.1

to 24:-
5. Mr. S. M. Vatsa, the learned advocate appearing for the

respondents submitted that the present special criminal

application is not maintainable under Articles 226 and 227 of

the Constitution of India inasmuch as that no fundamental

rights of the writ-applicant State has been violated on account

of the impugned order passed by the learned City Civil &

Sessions Court, Ahmedabad discharging the accused from the

charge of offence punishable under Section 130 of the Indian

Penal Code.

5.1 Mr. Vatsa, the learned advocate submitted that the

respondents accused are not State prisoners to arraign the

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respondents in the ambit of Section 130 of the Indian Penal

Code. Mr. Vatsa, the learned advocate submitted that the term

“State prisoner” is not defined in the Indian Penal Code nor

in any other Statute having the force of law in India. No other

legislation since independence defines or categorises a person

accused of any offence punishable under special laws such as

UAPA, POTA, TADA, Official Secret Act, National Security Act

and other preventive detention laws, Prisons Act, Prisoners Act

any State Jail Manual and Rules and Regulations framed under

any Jail Manual etc. Mr. Vatsa, the learned advocate further

submitted that to claim that State prisoners are those who are

accused committing offence under Chapter- VI of the Indian

Penal Code, such a course is unwarranted by recognized

principles of statutory interpretation.

5.2 Mr. Vatsa, the learned advocate submitted that as regards

the claim made in para-2.3 of the memorandum of the

application, it is stated that meaning cannot be supplied to

words by using colourful use of language, hence terms and

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phraseology such as “Enemies of State” are non-starters for

the purpose of present application. Mr. Vatsa, the learned

advocate submitted that the other word ‘Prisoner of War” is a

term which has been clearly defined in 3 rd Geneva Convention

and has got nothing to do with offence “Waging of War” as

enshrined under Section 121, 121A, 122, 123 and 125 of the

Indian Penal Code. Mr. Vatsa, the learned advocate submitted

that the word used in 3rd Geneva Convention of 1949 for

‘Prisoner of War’ is defined under Article 47 as mercenaries.

5.3 Mr. Vatsa, the learned advocate relied on the historical

legislation and documents as aids in statutory interpretation.

Mr. Vatsa, the learned advocate submitted that the term “State

Prisoner” was first used in the context of preventive detention

laws which were in force pre-independence i.e. before 1947.

Mr. Vatsa, the learned advocate relied on chronological

description of definition of “State Prisoner” as contained in

various ;

(a) pre independent Statute / provisions of law

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(b) citation and Court judgment and

(c) documents extracted for the convenience of perusal

Mr. Vatsa, the learned advocate placing reliance on the

aforesaid submitted that even “State Prisoner” would fall

within the category of Article 13(3)(b) of the Constitution of

India which is in respect of laws which has been explicitly

repealed and not impliedly repealed.

The term “State Prisoner” is now a wholly absolute term

which has been specifically recognized in 42 nd Law Commission

Report of India.

Any judicial proceeding which would include trial of the

respondents/accused persons as “State Prisoner” will be in

contravention of Article 21 of the Constitution of India as

“State Prisoner” as category or group of prisoners as occurring

in all the Statutes came to be specifically repealed while

repealing and amending Act, 1952.

5.4 Mr. Vatsa, the learned advocate submitted that State

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Prisoner as a category was allowed to exist in the Indian Penal

Code is more a reflection of political realities of immediate

aftermath of partition where Indian political landscape was

littered with several princely States. It is well known historical

fact that some of these princely States were not keen on

exceeding or merging with India. It was submitted that the

phraseology of Section 5 of the Indian Penal Code is also

suggestive of the fact that the legislator did not wish to add

any other or different meaning to “State Prisoner” then what

already existed in special laws dealing with “State Prisoner”.

5.5 Mr. Vatsa, the learned advocate submitted that if the

legislature has not thought it appropriate to ascribe any

meaning to the category of detainee recognized as “State

Prisoner” in the pre independent context, the same cannot be

claim by mere claim in memorandum of the captioned

application. Mr. Vatsa, the learned advocate submitted that

even the Acts which have been alleged to have been attributed

to the respondents accused, do not attract the offence as

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prescribed under Section 130 of the Indian Penal Code.

Undisputedly Section 130 of the Indian Penal Code came to be

added by way of a separate report and ordered by the

Magistrate to be placed with the FIR which was initially

lodged in respect of only Section 224 read with Sections 120B

and 511 of the Indian Penal Code and Section 45 of the

Prisons Act.

5.6 Mr. Vatsa, the learned advocate submitted that even the

said report falsely lays basis in the explanation to Section 130

of the Indian Penal Code which is wholly inapplicable, both in

law and in fact. Conspicuously, the memorandum of the

captioned application does not even elude to this report adding

the offence under Section 130 of the Indian Penal Code.

5.7 Mr. Vatsa, the learned advocate submitted that the writ-

applicant – State has deliberately suppressed the material

information about lodging of FIR dated 10.5.2013 which came

to be registered as C.R. No.I-17 of 2013 with DCB Police

Station, Ahmedabad by one Mr. H. A. Rathod, Police Inspector

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Crime Branch, Ahmedabad city against the total nine persons

which included the present respondents accused at Serial No.1,

2 and 10 as well as six other public servants, who were on

duty at Sabarmati Central Jail. This is subsequent FIR which

came to be lodged for the offences under Sections 217, 218,

201 read with Section 120B of the Indian Penal Code which is

in respect of the same transaction in respect of which FIR

dated 11.2.2013 was lodged with Ranip Police Station.

Conspicuously, no charge-sheet has been filed. However,

instead of coming clean on the very crucial aspect the

captioned application termed the observation in para 9.4 of the

impugned order as “improper observations against the

investigation agency” and quashing of this observation is

sought for without praying for the same.

5.8 Mr. Vatsa, the learned advocate submitted that the

alleged offence committed by the respondents accused as

having gone beyond the limit within which they were

permitted to be at large cannot be said to be even committed

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by the respondents accused. It was submitted that the

respondents accused persons have been lodged inside the

Sabarmati Central Jail, Ahmedabad and are in judicial custody

of the learned City Civil & Sessions Court, Ahmedabad. It is

submitted that the respondents/accused have never gone

beyond the limits within which they were allowed to be at

large and thus cannot be said to have escaped from the lawful

custody at any time. Mr. Vatsa, the learned advocate submitted

that it is also not the case of the writ-applicant – State that

the present respondents accused persons have been charged as

“State Prisoner” in the Sessions Case No.38 of 2009 and other

cognate offences in which they are currently facing trial before

the learned City Civil & Sessions Court, Ahmedabad.

Position of Law :-

6. While considering the question of framing of charge

under Section 227 of the Code, this Court deems it fit to refer

to the position of law as culled out by the Hon’ble Supreme

Court which read thus :-

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6.1 In the case of Union of India vs. Prafulla Kumar Zsamal

and Anr., reported in (1979) 3 SCC 4, paragraph-10 reads

thus:-

“(10.) Thus, on a consideration of the authorities mentioned

above, the following principles emerge:

(1) That the Judge while considering the question of

framing the charges under Section 227 of the Code has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima
facie case against the accused has been made out;

(2) Where the materials placed before the Court disclose

grave suspicion against the accused which has not been
properly explained the Court will be fully justified in
framing a charge and proceeding with the trial.

(3) The test of determine a prima facie case would

naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible and
the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his
right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of

the Code the Judge which under the present Code is a

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senior and experienced Court cannot act merely as a Post-

Office or a mouth-piece of the prosecution, but has to
consider the broad probabilities of the case, the total effect
of the evidence and the documents produced before the
Court, any basic infirmities appearing in the case and so
on. This however does not mean that the Judge should
make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a
trial.”

6.2 In the case of Sajjan Kumar Versus Central Bureau Of

Investigation, reported in (2010) 9 SCC 368, paragraph-17

reads thus :-

“(17.) Exercise of jurisdiction under Sections 227 & 228 of

Cr.P.C. On consideration of the authorities about the scope of
Section 227 and 228 of the Code, the following principles
emerge:-

(i) The Judge while considering the question of framing

the charges under Section 227 of the Cr.P.C. has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima
facie case against the accused has been made out. The
test to determine prima facie case would depend upon the
facts of each case.

ii) Where the materials placed before the Court disclose

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grave suspicion against the accused which has not been

properly explained, the Court will be fully justified in
framing a charge and proceeding with the trial.

iii) The Court cannot act merely as a Post Office or a

mouthpiece of the prosecution but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the Court,
any basic infirmities etc. However, at this stage, there
cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a
trial.

iv) If on the basis of the material on record, the Court

could form an opinion that the accused might have
committed offence, it can frame the charge, though for
conviction the conclusion is required to be proved beyond
reasonable doubt that the accused has committed the
offence.

v) At the time of framing of the charges, the probative

value of the material on record cannot be gone into but
before framing a charge the Court must apply its judicial
mind on the material placed on record and must be
satisfied that the commission of offence by the accused
was possible.

vi) At the stage of Sections 227 and 228, the Court is

required to evaluate the material and documents on
record with a view to find out if the facts emerging

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therefrom taken at their face value discloses the existence

of all the ingredients constituting the alleged offence. For
this limited purpose, sift the evidence as it cannot be
expected even at that initial stage to accept all that the
prosecution states as gospel truth even if it is opposed to
common sense or the broad probabilities of the case.

vii) If two views are possible and one of them gives rise
to suspicion only, as distinguished from grave suspicion,
the trial Judge will be empowered to discharge the
accused and at this stage, he is not to see whether the
trial will end in conviction or acquittal.”

6.3 In the case of State Of Tamil Nadu By Ins.Of Police

Vigilance And Anti Corruption Versus N.Suresh Rajan, reported

in (2014) 11 SCC 709, paragraphs 28 to 30 read thus :-

“(28.) Yet another decision on which reliance has been placed

is the decision of this Court in the case of Dilawar Balu
Kurane V/s. State of Maharashtra, (2002) 2 SCC 135, reference
has been made to the following paragraph of the said
judgment :-

"12. Now the next question is whether a prima facie case

has been made out against the appellant. In exercising
powers under Sec. 227 of the Code of Criminal Procedure,
the settled position of law is that the Judge while
considering the question of framing the charges under the

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said Section has the undoubted power to sift and weigh

the evidence for the limited purpose of finding out whether
or not a prima facie case against the accused has been
made out; where the materials placed before the Court
disclose grave suspicion against the accused which has not
been properly explained the Court will be fully justified in
framing a charge and proceeding with the trial; by and
large if two views are equally possible and the Judge is
satisfied that the evidence produced before him while
giving rise to some suspicion but not grave suspicion
against the accused, he will be fully justified to discharge
the accused, and in exercising jurisdiction under Sec. 227
of the Code of Criminal Procedure, the Judge cannot act
merely as a post office or a mouthpiece of the prosecution,
but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced
before the Court but should not make a roving enquiry
into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial."]

(29.) We have bestowed our consideration to the rival

submissions and the submissions made by Mr. Ranjit Kumar
commend us. True it is that at the time of consideration of the
applications for discharge, the Court cannot act as a
mouthpiece of the prosecution or act as a post-office and may
sift evidence in order to find out whether or not the
allegations made are groundless so as to pass an order of
discharge. It is trite that at the stage of consideration of an

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application for discharge, the Court has to proceed with an

assumption that the materials brought on record by the
prosecution are true and evaluate the said materials and
documents with a view to find out whether the facts emerging
therefrom taken at their face value disclose the existence of all
the ingredients constituting the alleged offence. At this stage,
probative value of the materials has to be gone into and the
Court is not expected to go deep into the matter and hold that
the materials would not warrant a conviction. In our opinion,
what needs to be considered is whether there is a ground for
presuming that the offence has been committed and not
whether a ground for convicting the accused has been made
out. To put it differently, if the Court thinks that the accused
might have committed the offence on the basis of the materials
on record on its probative value, it can frame the charge;
though for conviction, the Court has to come to the conclusion
that the accused has committed the offence. The law does not
permit a mini trial at this stage.

(30) Reference in this connection can be made to a recent

decision of this Court in the case of Sheoraj Singh Ahlawat &
Ors. V/s. State of Uttar Pradesh & Anr., AIR 2013 SC 52, in
which, after analyzing various decisions on the point, this
Court endorsed the following view taken in Onkar Nath Mishra
V/s. State (NCT of Delhi), (2008) 2 SCC 561 :-

["11. It is trite that at the stage of framing of charge the

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Court is required to evaluate the material and documents on

record with a view to finding out if the facts emerging
there from, taken at their face value, disclosed the existence
of all the ingredients constituting the alleged offence. At
that stage, the Court is not expected to go deep into the
probative value of the material on record. What needs to be
considered is whether there is a ground for presuming that
the offence has been committed and not a ground for
convicting the accused has been made out. At that stage,
even strong suspicion founded on material which leads the
Court to form a presumptive opinion as to the existence of
the factual ingredients constituting the offence alleged
would justify the framing of charge against the accused in
respect of the commission of that offence."]”

6.4 In the case of State of Rajasthan vs. Ashok Kumar

Kashyap, reported in (2021) 11 SCC 191, paragraphs 10 to 17

read thus :-

“(10) By the impugned judgment and order, the High Court

in exercise of its revisional jurisdiction has set aside the order
passed by the learned Special Judge framing the charge against
the accused under Section 7 of the PC Act and consequently
has discharged the accused for the said offence. What has been
weighed with the High Court while discharging the accused is
stated in paragraphs 10 & 11 of the impugned judgment and

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order, which are reproduced hereinabove.

(11) While considering the legality of the impugned

judgment and order passed by the High Court, the law on the
subject and few decisions of this Court are required to be
referred to.

(11.1) In the case of P.Vijayan (supra), this Court had an

occasion to consider Section 227 of the Cr.P.C. What is
required to be considered at the time of framing of the charge
and/or considering the discharge application has been
considered elaborately in the said decision. It is observed and
held that at the stage of Section 227, the Judge has merely to
sift the evidence in order to find out whether or not there is
sufficient ground for proceeding against the accused. It is
observed that in other words, the sufficiency of grounds would
take within its fold the nature of the evidence recorded by the
police or the documents produced before the Court which ex
facie disclose that there are suspicious circumstances against the
accused so as to frame a charge against him. It is further
observed that if the Judge comes to a conclusion that there is
sufficient ground to proceed, he will frame a charge
under Section 228 Cr.P.C., if not, he will discharge the
accused. It is further observed that while exercising its judicial
mind to the facts of the case in order to determine whether a
case for trial has been made out by the prosecution, it is not
necessary for the court to enter into the pros and cons of the

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matter or into a weighing and balancing of evidence and

probabilities which is really the function of the court, after the
trial starts.

(11.2) In the recent decision of this Court in the case of M.R.

Hiremath (supra), one of us (Justice D.Y. Chandrachud)
speaking for the Bench has observed and held in paragraph 25
as under:
“25. The High Court ought to have been cognizant of the
fact that the trial court was dealing with an application for
discharge under the provisions of Section 239 CrPC. The
parameters which govern the exercise of this jurisdiction
have found expression in several decisions of this Court. It
is a settled principle of law that at the stage of considering
an application for discharge the court must proceed on the
assumption that the material which has been brought on the
record by the prosecution is true and evaluate the material
in order to determine whether the facts emerging from the
material, taken on its face value, disclose the existence of
the ingredients necessary to constitute the offence. In State
of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh
Rajan, (2014) 11 SCC 709, adverting to the earlier decisions
on the subject, this Court held: (SCC pp. 721-22, para 29)

“29. … At this stage, probative value of the materials has

to be gone into and the court is not expected to go deep
into the matter and hold that the materials would not

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warrant a conviction. In our opinion, what needs to be

considered is whether there is a ground for presuming that
the offence has been committed and not whether a ground
for convicting the accused has been made out. To put it
differently, if the court thinks that the accused might have
committed the offence on the basis of the materials on
record on its probative value, it can frame the charge;
though for conviction, the court has to come to the
conclusion that the accused has committed the offence. The
law does not permit a mini trial at this stage.”

(12) We shall now apply the principles enunciated above to

the present case in order to find out whether in the facts and
circumstances of the case, the High Court was justified in
discharging the accused for the offence under Section 7 of the
PC Act.

(13) Having considered the reasoning given by the High

Court and the grounds which are weighed with the High Court
while discharging the accused, we are of the opinion that the
High Court has exceeded in its jurisdiction in exercise of the
revisional jurisdiction and has acted beyond the scope
of Section 227/239 Cr.P.C. While discharging the accused, the
High Court has gone into the merits of the case and has
considered whether on the basis of the material on record, the
accused is likely to be convicted or not. For the aforesaid, the
High Court has considered in detail the transcript of the

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conversation between the complainant and the accused which

exercise at this stage to consider the discharge application and/
or framing of the charge is not permissible at all.

(14) As rightly observed and held by the learned Special

Judge at the stage of framing of the charge, it has to be seen
whether or not a prima facie case is made out and the defence
of the accused is not to be considered. After considering the
material on record including the transcript of the conversation
between the complainant and the accused, the learned Special
Judge having found that there is a prima facie case of the
alleged offence under Section 7 of the PC Act, framed the
charge against the accused for the said offence. The High Court
materially erred in negating the exercise of considering the
transcript in detail and in considering whether on the basis of
the material on record the accused is likely to be convicted for
the offence under Section 7 of the PC Act or not.

(15) As observed hereinabove, the High Court was required

to consider whether a prima facie case has been made out or
not and whether the accused is required to be further tried or
not. At the stage of framing of the charge and/or considering
the discharge application, the mini trial is not permissible. At
this stage, it is to be noted that even as per Section 7 of the
PC Act, even an attempt constitutes an offence. Therefore, the
High Court has erred and/or exceeded in virtually holding a
mini trial at the stage of discharge application.

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(16) We are not further entering into the merits of the case
and/or merits of the transcript as the same is required to be
considered at the time of trial. Defence on merits is not to be
considered at the stage of framing of the charge and/or at the
stage of discharge application.

(17) In view of the above and for the reasons stated above,
the impugned judgment and order passed by the High Court
discharging the accused under Section 7 of the PC Act is
unsustainable in law and the same deserves to be quashed and
set aside and is accordingly hereby quashed and set aside and
the order passed by the learned Special Judge framing charge
against the accused under Section 7 of the PC Act is hereby
restored. Now the case is to be tried against the accused by the
competent court for the offence under Section 7 of the PC Act,
in accordance with law and its own merits.”

Analysis :-

7. On 10.2.2013, while the first informant i.e. Govindbhai -

Subedar was on duty alongwith other officers of the Sabarmati

Central Jail, Ahmedabad, the first informant discovered a

tunnel in yard No.4, Barrack No.4/2 of Sabarmati Central Jail

Ahmedabad dug-up by the accused in connivance with each

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other. The investigation with regard to the aforesaid came to

be entrusted to the Crime Branch, Ahmedabad city by order

dated 11.2.2013 passed by the Commissioner of Police

Ahmedabad. The said complaint dated 11.2.2013 under

Sections 224, 120B, 511 paragraph 12 (page-21 – Annexure-B)

(true translation) read thus :

“Detail of First Information :

The fact of this case is such that, at the afore stated time and
date, the accused persons as mentioned in column no. 7 have
gathered at any time during the shown hours at Central
backside of Yard no. 4 and have framed a criminal conspiracy
with an intention to execute the same, in collusion with one
another at the backside of Water Tank, have illegally made a
bunker of about 10 to 12 feets in the ground within the
prohibited area of judicial custody and have tried to escape
from the Jail Barrack. Hence, have committed an offence.”

8. On investigation being carried out, the names of the

other accused were also disclosed. The concerned authority

prepared two reports (1) adding Section 130 of the Indian

Penal Code by report dated 27.12.2013 and (2) adding Section

42 of the Prisoners Act by report dated 24.9.2013. The said

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report seeking addition of Section 130 in the FIR No.24 of

2013 dated 27.2.2013 (page-25 Annexure-C) (true translation)

read thus :-

“To,
The Additional Chief Metropolitan Magistrate,
Additional Chief Metropolitan Court No.11,
The Kanta Ahmedabad City.

Subject: Regarding to add Section-130 of I.P.C.

in the Case of CR. No. I – 24 / 2013
lodged with Ranip Police Station
under Section-24 of I.P.C.

I, Police Inspector R.D.Jadeja, Crime Branch,

Ahmedabad City report with due respect that,
The accused persons in connection with I-CRNo.24/2013

registered wih Ranip Police Station.. namely..

(1) Saduli Abdulkarim,

(2) Shibli Abdulkarim,
(3) HafidhusainTajuddin Mulla,
(4) Mfti @ Abubashar Abubakar Shaikh,
(5) Mo. Ismail @ Furkan Mo.Irshad,
(6) Jahid @ Javed Kutubddin @ Maji Shaikh,
(7) Nadim Abdulnaim Saiyed,
(8) Nasirahemad Liyakatali Patel,

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(9) Ikbal @ Iksar Kasambhai Shaikh,

(10) Saifur Rehman @ Saifu @ Saifu Abdulrehman,
(11) Imran Ibrahim,
(12) Mo. Ansar @ Nadvi Abdulrazak Muslim,
(13) Shakib Nisharahemad Azami,
(14) M. Usman Mo. Anish Mansuri Agarbattiwala

All residing at - Yard No.-Ahmedabad Central Jail,

Sabarmati.

These are the accused in the grave offence under

section-120,B, 121A, 124A, 153(1)(B)(C), 302, 307, 326, 326,
427, 435, 465, 468, 471 of I.P.C. and Section-3,5,6,7 of the
Explosive Substance Act and Section-10, 13, 16, 18, 19, 20,
23, 38, 39, 40 of the Unlawful Activity Act and Section-3,4
of the Damage to Public Property Act and Section-65,66 of
the Information Technology Act. The accused have committed
other offences alike. As per section-121(A), 124(A) of I.P.C.,
it is grave offence of sedition against the Government. That
permission has been also received to file charge sheet against
the accused from Government of Gujarat State as per section-
196 of Cr.P.C. for the said offence. After the the charge sheet
framed in accordance with the said permission, charge was
also framed against the 14 accused persons of this case in the
Court of the Spl. Designated Judge, Bomb blast cases,
Sessions Court at Ahmedabad city

According to the explanatory reading of section-130 of

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I.P.C., a State prisoner or prisoner of war who has been

permitted to remain on parole within a certain limit in India
is said to have absconded from legal custody if he goes
beyond the limit within which the prisoner has been allowed
to remain at liberty.

Considering the explanation, As per Section 121(a),

124(a) of I.P.C., there are serious offenses of sedition against
the state. In this case, the accused were kept in Chota
Chakar in Yard No.-4/2 located in Yard No.4 of the Central
Jail Sabarmati. A tunnel was made by the accused in that
Yard, the said tunnel is found to be sixteen and a half feet
deep and twenty six feet long as per Panchnama. Thus, the
accused of this case were kept in yard no.4/2. But it
becomes clear that the accused illegally excavated the yard,
made a tunnel and went beyond the prescribed limits of the
jail.

Thus, the accused of this case are at present in

Ahmedabad Central Jail under the serious charges of sedition
against the State, they hatched a criminal conspiracy, made
tunnel in the jail in collusion with one another with the
intention of escaping from the jail, have gone out of the
fixed boundary, it is found that an offence under section-130
of the I.P.C. occurred therefore, it is requested to add
Section-130 of I.P.C. in this case which may be noted.

Date-27/2/2013

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Sd/-illegible
(R.D.Jadeja)
Police Inspector
Crime, Branch,
Ahmedabad
Ahmedabad City.”

9. Sanction came to be accorded by the appellant on

17.5.2013 (page-28 Annexure-D) under Section 196 of the

Criminal Procedure Code, 1973 taking into consideration the

following :-

“2 . WHEREAS, it transpires from the papers of investigation

that, an offence came to the notice on 12" February, 2013, at
Central Jail, Ahemedabad where on duty jail staff caught some
under trial prisoners attempting escape through a tunnel type
bunker which was dug by them, behind water tank situated
behind the yard no.4. An F.I.R. has been lodged against
accused prisoners at Ranip Police Station with I C.R.No.
24/2013. During the investigation of the said offence, 24 under
trial prisoners have been arrested by the Crime Branch,
Ahmedabad City.

3. AND WHEREAS, there is a prima facie evidence against

the above accused persons about their involvement in
commission of the offences under Section 130 of Indian Penal
Code, and Section 42, 45 of the Prison Act.

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4. ANDWHEREAS, sanction of the State Government under

section 196 of the Criminal Procedure Code 1972 is necessary
before the Hon'ble Court takes cognizance of the said offences
under 130 of Indian Penal Code 1972, and Section 42, 45 of
the Prison Act.

5. Now therefore, in exercise of the powers conferred by

Section 196 of Criminal Procedure Code 1973, sanction is
hereby accorded to prosecute the aforesaid accused in
connection with Ahmedabad City Ranip Police Station I.C.R.No.
24/2013 for the offence referred to above.

By order and in the name of Governor of Gujarat.”

10. During the course of investigation of the said offence,

twenty-four undertrial prisoners have been arrested by the

Crime Branch, Ahmedabad city and there is prima facie

evidence against the above referred accused with regard to

their alleged involvement in commission of offence under

Section 130 of the Indian Penal Code and Section 42 of the

Prisoners Act. After completion of investigation in connection

with the FIR, charge-sheet was came to be filed against 24

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accused which culminated into Criminal Case No.102 of 2013

before the Additional Chief Judicial Magistrate Court No.1,

Gheekanta, Ahmedabad on 18.5.2013. The charge-sheet is

attached with the list of 169 witnesses and 14 muddamal

articles which have been seized by the concerned authority.

Overlooking the aforesaid aspect, the concerned Court

discharged the respondents-accused on a technical ground of

the definition of “State Prisoner” that the case of the

respondents/accused cannot be considered under the definition

of “State Prisoner” and that the respondents not being “State

Prisoners”, Section 130 of the Indian Penal Code cannot be

invoked against the present respondents/accused and proceeded

to discharge the respondents/accused from the aforesaid charge

under Section 130 of the Code. Being aggrieved by the same,

the prosecution has approached this Court by filing the present

writ-application.

10.1 It is pertinent to note that the respondents accused are

charged with offence under Section 121A and 124A of the

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Indian Penal Code as also Section 10, 13, 16, 18, 19, 20, 23,

38, 39 and 40 of the Unlawful Activities (Prevention) Act being

FIR being C.R. No.I-236/2008 registered at Shahibaug Police

Station, Ahmedabad for the offences punishable under

Chaprter-VI of the Indian Penal Code offences against the

State. The respondents accused are charged with offence under

Section 130 of the Indian Penal Code. Section 130 of the IPC

reads thus :-

“SECTION 130 : Aiding escape of, rescuing or harbouring such

prisoner

Whoever knowingly aids or assists any State prisoner or

prisoner of war in escaping from lawful custody, or rescues or
attempts to rescue any such prisoner, or harbours or conceals
any such prisoner who has escaped from lawful custody, or
offers or attempts to offer any resistance to the recapture of

103
such prisoner, shall be punished with [imprisonment for
life], or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to
fine.

Explanation. A State prisoner or prisoner of war, who is

permitted to be at large on his parole within certain limits in
[India], is said to escape from lawful custody if he goes

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beyond the limits within which he is allowed to be at large.”

10.2 In the facts of the present case, it appears that the

accused allegedly conspired/harboured to escape from the

prison by digging up a tunnel from the premises of the jail to

the outside campus which is now known as ‘Surangkand’.

10.3 The accused were kept in different yards i.e. No.4 and 5

and the accused allegedly planned to escape by digging up a

tunnel from the jail to the outside campus of the jail and it is

further alleged that the accused conspired to escape in nearby

jungle. As stated by the prosecution, the accused are well

educated and some of them are having degree of Engineering

and MBA and, therefore, they are conversant with many

languages and techniques of engineering. It is further alleged

that the accused No.1 was the Civil Engineer, who took the

measurement from the distance from jail to outside jail and

planned as to how long and deep the tunnel would be. It is

further alleged that all the other accused got the equipments to

dig-up the tunnel, cover it up if any jail officer visited, to

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distract them etc., and to understand the technique of digging

up the tunnel where the accused had got four books from

library, and they started the work of digging up of tunnel

which was done around 11.10.2012 to 12.2.2013, when during

the visit of jail premises the officers found-out that a big

tunnel was dug near the water-tank behind the big tree which

was approximately six feet deep and around 196 feet long,

which is outside the jail campus. The aforesaid resulted in

addition of charge under Section 130 of the Indian Penal Code

against the accused by report dated 27.2.2013 as also Section

42 of the Prisoners Act by report dated 29.4.2013.

11. In view of the ratio/principles as laid down by the

Hon’ble Apex Court as referred above for exercising

jurisdiction in respect of Section 227/239 of the Criminal

Procedure Code and the facts of the present case the impugned

order dated 16.4.2016 passed by the learned Additional

Sessions Judge, Court No.15, City Sessions Court, Ahmedabad

is required to be interfered with in view of the fact that the

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concerned Court has digressed by going into the definition of

“State Prisoner” and relied upon the Bengal Regulation-3 of

1818 though repealed and proceeded on the footing that the

case of the present respondents-accused do not fall under

Bengal Regulation-III since “State Prisoner” is not defined in

Indian Penal Code.

11.1 At this stage, this Court is not required to consider

whether the case of the respondents-accused fall within the

definition or explanation of “State Prisoner” as the same

would be subject matter of evidence. At this stage, it is only

required to consider from the evidence on record whether a

prima facie case is made out against the respondents-accused.

In view of this Court, the concerned Court has only dealt with

the definition of “State Prisoner” on demurer without assessing

the evidence on record for coming to a prima facie conclusion

and without giving an opportunity to the prosecution to

establish whether the respondents-accused are “State

Prisoners” and the concerned Court has proceeded to discharge

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the respondents-accused.

11.2 The respondents-accused could not have been

discharged from the charges and the allegations leveled against

the respondents-accused herein, at this stage, without

examining the evidence as regards the “State Prisoner”. The

Sessions Court could not have held at this stage i.e. at the

prima facie stage, when the charge is to be framed under

Section 227 of the Criminal Procedure Code that the accused

are not “State Prisoners” relying on the definition in Bengal

Regulation-3. When the Statute does not defer the “State

Prisoner” the same would be subject matter of evidence at the

trial. The contention of the respondents-accused that

continuation of charge under Section 130 of the Code would

result in sessions trial. The said contention raised by the

respondents-accused does not weight with this Court.

12. In view of above, this Court while exercising its

extraordinary jurisdiction under Article 226 of the Constitution

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of India read with Section 482 of the Code the impugned order

dated 16.4.2016 passed by the learned Additional Sessions

Judge, Court No.15, City Sessions Court, Ahmedabad, below

Ex.81 and 82 in Sessions Case No.389 of 2013 whereby the

learned Judge has discharged the respondents – accused from

the charges levelled against the respondents-accused is quashed

and set aside. It is however, clarified that it will be open for

the respondents-accused to take all the contentions as available

under the law at the time when the evidence is led at the

time of trial. The concerned Court may decide the same

independently in accordance with law.

13. The present writ-application stands allowed accordingly.

Rule is made absolute to the aforesaid extent. Consequently the

Criminal Misc. Application No.1 of 2022 stands disposed of.

(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED

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