1. The present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner-original accused no. 1 to quash and set aside the order passed the learned Metropolitan Magistrate, Court No. 17, Ahmedabad dated 28/06/2006 in Criminal Case No. 1563/2004 as well as the order passed by the learned Additional City Sessions Judge, Court No. 9, Ahmedabad dated 04/12/2006 in Criminal Revision Application No. 298/2006 and consequently to decide the application with respect to the present petitioner in Criminal Case No. 1563/2004.
2. The impugned FIR, being C.R. No. 167/2004 was registered against the petitioner and others with Sardarnagar Police Station for the offences punishable under Sections 379, 411 and 114 of the Indian Penal Code alleging interalia that some unknown persons have stolen the complainant's mobile phones of Nokia Company, being Model No. 3315 and 100 mobile phones of Nokia Company, being Model No. 6610
3. In pursuance of the said FIR, the Investigating Officer arrested the present petitioner. Thereafter, after completion of the investigation, the Investigating Officer filed the chargesheet against the petitioner and others for the offences punishable under Sections 379, 411 and 114 of the Indian Penal Code. After the petitioner was chargesheeted he submitted an application for discharge under Section 227 of the Code of Criminal Procedure and the learned Metropolitan Magistrate Court No. 17, Ahmedabad by order dated 28/06/2006 dismissed the said application by observing that there is sufficient material/evidence against the petitioner for the offences for which he his chargesheeted. Being aggrieved and dissatisfied with the order passed by the learned Magistrate dismissing the discharge application submitted by the petitioner-original accused no. 1, the petitioner preferred Criminal Revision Application No. 298/2006 before the learned Sessions Court, Ahmedabad and the learned revisional Court has dismissed the said Revision Application by impugned order dated 04/12/2006 by observing that there is ample material/evidence against the petitioner for framing the charge. Being aggrieved and dissatisfied with the impugned orders passed by both the Courts below in not discharging the petitioner for the offence punishable under Sections 379, 411 and 114 of the Indian Penal Code, the petitioner-original accused no. 1 has preferred the present Special Criminal Application under Article 227 of the Constitution of India.
4. Shri Samir Dave, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such there is no material against the petitioner for the offences alleged for which he is chargesheeted and, therefore, both the Courts below have materially erred in not discharging the petitioner. It is further submitted by Shri Dave, learned advocate appearing on behalf of the petitioner that as such he was on duty at Ahmedabad on the date on which the alleged incident had taken place and the theft of mobile is alleged to have been committed at Mumbai. It is further submitted that the alleged offence of theft of mobiles have taken place at Mumbai and, therefore, the learned Magistrate would not have territorial jurisdiction. Shri Dave, learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the learned Single Judge in the case of Amrish Devnarayan Rajput Vs. The State of Gujarat reported in 2006 (1) GLH 324. Making the above submission, it is requested to allow the present application.
5. The petition is opposed by Shri L.B. Dabhi, learned APP appearing on behalf of the respondent-State. He has drawn the attention of the Court to the chargesheet papers as well as the material on record by producing the investigation papers reports and relying upon the same it is submitted that there is ample material against the petitioner to prosecute him and, therefore, it is requested to dismiss the present application. It is further submitted that both the Courts below have rightly refused to discharge the petitioner by observing that there is ample material against the petitioner to frame the charge and the same are not required to be interfered with in exercise of the powers under Article 227 of the Constitution of India and, therefore, it is requested to dismiss the present petition.
6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that this is a petition under Article 227 of the Constitution of India against the order passed by both the Courts below refusing to discharge the petitioner. Cogent reasons have been given by both the Courts below refusing to discharge the petitioner, which are not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. Even this Court has also considered the chargesheet papers and the material on record and considering the material on record, inclusive of the statements of the shop keepers from whom other persons have purchased the stolen mobiles and even the statement of the petitioner himself, this Court is of the opinion that a prima facie case is made out against the petitioner and there is ample material against the petitioner to prosecute him and, therefore, both the Courts below have rightly rejected the application submitted by the petitioner for discharge. As per the settled proposition of law, at the time of framing the charge, the Court is required to consider whether there is some material against the petitioner and/or prima facie case is made out for which the accused is to be tried. At this stage, the Court is not required to consider whether on the basis of the material/evidence on record the petitioner/accused is likely to be convicted or not. Both the Courts below have found that there is ample material against the petitioner for further prosecution and even this Court is of the opinion that there is material against the petitioner for framing the charge and the petitioner is required to be tried. No case is made out to interfere with the impugned orders passed by both the Courts below refusing to discharge the petitioner.
7. In view of the above and for the reasons stated hereinabove, the present petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith.
(M.R. SHAH, J.) siji