Gujarat High Court
Aamar vs State on 22 July, 2008
Author: S. Dave
Bench: Anant S. Dave, S. Dave
Gujarat High Court Case Information System
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SCR.A/1390/2008 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1390 of 2008
==========================================
AAMAR
SUMARA CHHUCHIYA (MANKA) - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
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Appearance
:
MR BB NAIK
for Applicant(s) : 1,
PUBLIC PROSECUTOR for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 22/07/2008
ORAL ORDER
1. This petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 30th June 2008 passed by the Learned Additional Sessions Judge, Gandhidham, below Exh. 30 in Sessions Case No. 9 of 2008.
2. The application below Exh. 30 was preferred by the petitioner, original informant who had lodged the First Information Report for the offences punishable under section 302, 34,201 and 450 of the Indian Penal Code at Adhoi police station.
3. It is the case of the petitioner that after going through the charge-sheet, the petitioner found that the investigation was not carried out properly and other relatives of the deceased, namely Kanji and Veerbai preferred representation before the police authorities, since, they had doubt about incorrect methods adopted by the investigating authority and relevant materials available during the course of the investigation were not taken into consideration. Not only that in a case of double murder it was not possible that two accused committed the crime and further, repeated request of the petitioner as well as relatives were not taken care of. But during the trial evidence of two witnesses were recorded namely the Medical Officer and the Panch No.1 namely Mukeshkumar Manka and , therefore, a request was made to the trial court to direct the police for further investigation under section 173(8) of the Code.
4. The above application Exh 30, came to be rejected by the learned Additional Sessions Judge after taking into consideration the plea advanced by the learned advocate for the petitioner and the learned Additional Public Prosecutor appearing in the case.
5. Learned counsel appearing for the applicant assailed the above order on various grounds and submitted that the deceased Veerbai was a rich lady and was doing the business of money lending which was found by the investigation agency and during the investigation the saving certificates of the post office were found from the premises of Veerbai and looking at the numbers of saving certificates it is borne out that some certificates are missing and therefore it is apparent that the murder of Veerbai and her son was committed with a view to commit dacoity and the above aspect was found completely ignored by the investigating agency. Learned counsel, considering the nature of the crime, submitted that there is a possibility that not only two persons but more persons are involved in the crime and merely because during the remand of two accused who were arrested by the police nothing has been found and the investigating authority cannot ignore vital line material in investigation. It is further submitted that investigating officer has not recorded the statement of witnesses Naji Kanji and Sayajivan and the petitioner, which has resulted in the miscarriage of justice. In short the investigating agency has not carried out the investigation, on the basis of available relevant material and not considering the above aspect, the learned Sessions Judge has committed grave error. Learned advocate appearing for the petitioner has placed reliance on the decision of Bhagwan Samarcha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs State of Andhra Pradesh, reported in AIR 1999 Supreme Court 2332 wherein the Apex Court has laid down that the magistrate can order reinvestigation under section 173 (8). It is further submitted that power of the Court of ordering investigation or reinvestigation is not hampered and at any stage of the trial such power can be exercised by the Court.
6. Learned Additional Public Prosecutor has submitted that after considering relevant facts and decision of the Apex Court as reported in (1) 1980 GLR 1980 in the case of Deepak Dwarkadas Patel and Anr. Vs State of Gujarat (2) 1985 GLH 299 in the case of Surendrabhai Babubhai Patel Vs. State of Gujarat (3) AIR 1980 Supreme Court 326 in the case of State of Bihar and Anr. Vs J.A.C. Saidanna and Ors.
7. Learned Additional Public Prosecutor submitted that learned judge has passed reasoned order after dealing with each and every contention, which do not warrant any interference by this court under Articles 226 and 227 of the Constitution of India. According to the Learned Additional Public Prosecutor no error is committed by the learned Additional Sessions Judge and investigation is carried out by the investigating authority on the basis of available relevant material.
8. Having considered relevant facts and submissions of the rival parties and perusal of the order passed by learned Additional Sessions Judge, Gandhidham dated 30th June 2008 passed below Exh 30 in Sessions Case No. 9 of 2008, it is found that in page 34 the learned Additional Sessions Judge has discussed the matter in detail. In para 7 following observations are made as under :
I have considered the above mentioned authorities. Whether the case of the prosecution is deem fit for re-investigation or not can be considered from the circumstance of the case. It is stated in the application Ex. 30 that Investigating Officer has not inquired about the saving certificates of the deceased from the Post Department but looking to the facts and circumstances of the case the prosecution has not advanced the motive for the murder of the deceased is in respect of the saving certificates. Not only this, there is nothing on record that there is other saving certificates of the deceased. There is no relevancy of the saving certificates with the murder of the deceased as it appears from the record. So, this factor is not very important for coming to the conclusion about the true facts. The second factor shown by the complainant is the Investigating Officer has not inquired about the anything lost from the house of the deceased. It is submitted that it ma happen that the person might take away ornaments and cash amount by robbery or theft. Looking to the case diary produced by the Investigating officer, it appears that he has also inquired on this aspect. For that purpose, he has also asked remand of the accused and the Lower Court has granted the same, but no any article is found from the accused. Not only this in the complaint of the member of family of the deceased it is stated that after opening the lock of the box nothing found lost, all the ornaments and cash amount found as it is. So, for this point also no further investigation is required. The Investigating Officer has filed the application for remand of the accused dated 17th October 2007 and all the points of, further investigation in this application, are mentioned by the Investigating officer in the said application. Hence, it cannot be said that there is any lacuna in the investigation . The same points are mentioned in the application Exh. 30. As per the application Ex. 30 it is stated that some of the facts not stated in the statement of the Lakha Bhikha Rabari, but this cannot be the ground for further investigation. The facts stated in the application Ex. 30 that accused Raydhan Vaja was working in the field of Kanjibhai Coal Furnace and Investigating Officer has not inquired about the other persons who were working with the accused. But, I think this is not the material fact in the statement of the eyewitnesses Nanji Kanji, Aamar Sumara and Saya Jivan, I think this cannot be considered at this stage, it may only be considered at the time of evidence, so this is also not the ground for further investigation. The food and glass found from the place of the deceased and it is alleged that no any statement of the person about the glass is recorded by the police is also not the material fact for further investigation.
Hence, looking to the grounds stated in the application Exh. 30 nothing is important for further investigation. It is not the case of the prosecution that the new fact came in the light for which further investigation is necessary. It is not the case of the complainant that Investigating officer has performed the investigation bias. It is not the allegation that Police Inspector who has investigated the matter has favoured the accused. It is also not the allegations that the Investigating Officer is not honest. In these circumstances, when the trial has begun and prosecution has lead evidence and accused are in jail, hence, this is not the fit case for the re-investigation. Hence, application is not likely to be maintainable. Hence, I pass the following order.
9. Having gone through the relevant aspects about inquiry carried out by the investigating officer with regard to the saving certificates, and after perusal of record it was found that the investigating officer has enquired about lost articles namely ornaments etc nothing was found and even after the application for remand it was found by the investigating authority that only two accused were arrested and not only that what is stated in the statement of Lakha Bhikha the same was considered and even other statements of Raydhan Vaja who was working in the field of Kanjibhai was found to be not relevant and germane to the investigation and the aspects about non-consideration of the statement of Nanji Kanji were not to be gone into at stage of trial, and the application came to be rejected. In my view the findings do not deserve any interference in exercise of power under Articles 226 and 227 of the Constitution of India in view of the the proposition of law laid down by the Apex Court in the case of State of Bihar Vs J.A Saldanha reported in AIR 1980 SC 326 about the exercise of power by the Court for further investigation. So far as the facts of the present case do not warrant any further investigation. The order of learned Additional Sessions Judge does not suffer from any illegality and the petition deserves to be rejected.
10. Reliance was placed whereon the decision of the Apex Court while considering Section 216 of the Criminal Procedure Code 1973, with regard to the addition or alteration of charge during trial, the same is permissible if the Court is satisfied that it is necessary to do so. That satisfaction of the learned Additional Sessions Judge in this case whether it is necessary or not to order reinvestigation or further investigation is not vitiated by any lacuna or lack of appreciation of materials available and therefore, the above decision is of no help to the petitioner.
11. In the premises aforesaid, this petition is rejected.
(Anant S. Dave, J.) mary// Top