Gujarat High Court
Rameshbhai Laxmanbhai Desai vs State Of Gujarat & 4 on 7 March, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/613/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 613 of 2017
With
CRIMINAL MISC.APPLICATION NO. 5509 of 2017
In SPECIAL CRIMINAL APPLICATION NO. 613 of 2017
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RAMESHBHAI LAXMANBHAI DESAI....Applicant(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR BB NAIK, SR.ADVOCATE with MR PARTHIV A BHATT, ADVOCATE for
the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/03/2017
COMMON ORAL ORDER
Since the issues raised in both the captioned applications are interrelated, those were heard together and are being disposed of by this common order.
The Special Criminal Application No.613 of 2017 is treated as the lead matter.
By this writ-application under Article 226 of the Constitution of India, the writ-applicant - original accused no.1 has prayed for the following reliefs :
Page 1 of 6HC-NIC Page 1 of 6 Created On Wed Mar 08 01:03:26 IST 2017 R/SCR.A/613/2017 ORDER "(A) This Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent no.2 to transfer investigation of first information report registered as C.R. No.I-185/2016 at Ramol Police Station, (Annexure 'A') to Assistant Commissioner of Police of the City Division, in which Ramol Police Station is situated, or any other Police Officer not connected with Ramol Police Station;
(B) This Honourable Court may be pleased to issue a writ of mandamus or an appropriate writ, order or direction directing the respondent nos.1 and 2 to transfer investigation of first information report registered as C.R. No.I-185/2016 at Ramol Police Station, (Annexure 'A') to CID Crime City, or CID Crime State;
(C) And to pass such other and further orders as may be deemed just and proper."
The grievance voiced in this writ-application is with regard to the investigation which has been carried out. According to the writ-applicant, he is innocent and has not committed any offence. His case is one of false involvement in the alleged offence.
Pursuant to the notice issued by this Court, an affidavit- in-reply has been filed on behalf of the respondent no.4 duly affirmed by one Paresh Ishwarlal Solanki, serving as a Police Inspector, Ramol Police Station, Ahmedabad city. I may quote the contents of the reply thus :
"3. I say and submit that the FIR being CR-I-185 OF 2016 was registered on 17.11.2016 under Section 302, 323 and 114 of IPC against the accused no.1 Ramesh @ Sunny, accused No.2 Dharamsi @ Dhamo Desai, accused no.3 Pratik Babubhai Desai and accused no.4 Vijay Desai. The complaint was given by the brother of the deceased Jagdishbhai Chehorbhai Desai.
4. I say and submit as per the FIR, the deceased was Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed Mar 08 01:03:26 IST 2017 R/SCR.A/613/2017 ORDER attacked with a Sickle on the head by Ramesh @ Sunny who is the present petitioner. The deceased was attacked with sword on face by Dharamsi @ Dhamo and Praik Babubhai Desai had inflicted injuries on the head of the deceased with sword and Vijay Desai had inflicted blow by knife on chest of the deceased.
5. I say and submit that as per the investigation which has been carried out so far, there are 4 eye witnesses to the incident namely 1-Naresh @ Narotambhai Patel, 2- Amratbhai Desai driver of the deceased, 3-Kalpeshbhai Valand and 4-Hargovindbhai Desai. Statements of all the 4 eye witnesses have been recorded by the investigating Authority which reveals that the accused persons had attacked the deceased with weapons. I say and submit that the statements of Naresh @ Dhakkan and Amratbhai Desai were also recorded under Section 164 of the CRPC by the concerned court. I say and submit that so far as the weapons used in the offences are concerned, a Discovery Panchanama was carried out whereby the knife which was used by accused no.4 Vijay Desai has been discovered and the trouser which he was wearing at the time of offence has also been discovered. I say and submit that the knife as well as the trouser has been sent for examination to the Forensic Science Laboratory. I say and submit that the accused had burned his shirt and the remains in the form of ashes of the burnt shirt has been collected and submitted to the Forensic Science Laboratory. I say and submit that a report has also been submitted by the investigating authority for adding section 201 and 120 (B) of the IPC against the said accused.
6. I say and submit that the blood samples and the other necessary evidences were collected from the place of offence and the same have been sent to the Forensic Science Laboratory for the examination. The reports from the Forensic Science Laboratory are awaited.
7. I say and submit that it is the case of the applicant that the applicants are not involved in the offence as per the present petition. The investigating authority has also looked into the CDR's to locate the exact location of the accused persons at the time of incident. I say and submit that so far as Ramesh @ Sunny is concerned the mobile tower location could not be traced as his phone was Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed Mar 08 01:03:26 IST 2017 R/SCR.A/613/2017 ORDER switched off at the time when the alleged incident took place. I say and submit that so far as accused no.4 Vijay Desai is concerned, his location reveals near the place of incident during the time of incident. The investigating authority has also examined all the video footage of Garba program which the accused persons and the deceased were attending on the day of the incident. The alleged incident has taken place after the Garba program. The Garba program as per the statement of the eyewitnesses continued till 1:30 am whereas the incident has taken place at 1:45 am.
8. I say and submit that the applicant also has antecedents against them whereby so far as the applicant is concerned in all total 12 offences have been registered against the applicant. A copy of chart showing the details of the FIRs registration against the applicant is annexed herewith and marked as Annexure R1.
9. I say and submit that, so far as the present applicant is concerned, the applicant is absconding and a warrant under Section 70 has been issued against him. I say and submit that the applicant has contended that the first informant and Naresh were not present at the scene of offence when the incident had occurred and that complainant and Naresh were at some other place which was away from the scene of offence. I say and submit that the authorities have also collected the CCTV footage of the place of residence of the complainant as well as the DVR's in order to examine this aspect. The DVR's are sent to FSL for examination & report is awaited. However, nothing in support of the said contention has come forth.
10. I say and submit that the authorities have completed the investigation and filed the charge sheet on 15.02.2017. In the charge sheet, Vijay is shown in the first column and the accused no. 2, 3 and 4 are shown in column no. 2 in the said charge sheet. Therefore, the prayer of the petitioner with respect to the transfer of the investigation may not be entertained by the Hon'ble Court at this stage."
It appears that the investigation has been completed and charge-sheet has been filed against those accused persons Page 4 of 6 HC-NIC Page 4 of 6 Created On Wed Mar 08 01:03:26 IST 2017 R/SCR.A/613/2017 ORDER who have been arrested. So far as the writ-applicant herein is concerned, I am told that he is absconding and against whom a warrant of arrest under Section 70 of the Code of Criminal Procedure has been issued.
Mr.Naik, the learned senior counsel appearing for the writ-applicant, submits that although the investigation might have been completed and charge-sheet has been filed, yet the Investigating Officer should have collected the call details of the original first informant and one Naresh, an eye-witness to the incident.
To put it in other words, according to Mr.Naik, such details about the exact location of the first informant and the eye-witness should have been investigated.
In this regard, Ms.Pathak, the learned APP, invites my attention to the contents of para 9 of the affidavit-in-reply referred to above. It appears that the Investigating Officer has collected such details and the same have been forwarded to the FSL. The report of which is awaited.
Be that as it may, if such call details of the first informant and the eye-witness are not collected as regards their location, the Investigating Officer shall look into the same and do the needful.
With the above, this writ-application is disposed of.
In view of the order passed in the main matter, the connected application filed by the original first informant is Page 5 of 6 HC-NIC Page 5 of 6 Created On Wed Mar 08 01:03:26 IST 2017 R/SCR.A/613/2017 ORDER also disposed of.
(J.B.PARDIWALA, J.) MOIN Page 6 of 6 HC-NIC Page 6 of 6 Created On Wed Mar 08 01:03:26 IST 2017