Gujarat High Court
Ashokbhai @ Hareshbhai Pratap Bhai ... vs State Of Gujarat on 18 July, 2014
Author: A.J.Desai
Bench: A.J.Desai
R/SCR.A/1271/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 1271 of 2013
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ASHOKBHAI @ HARESHBHAI PRATAP BHAI CHUNGI KHARWA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR IH SYED, ADVOCATE for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 18/07/2014
ORAL ORDER
1. Rule. Mr.L.B.Dabhi, learned APP waives service of notice of Rule on behalf of respondent - State.
2. With consent of the learned advocate for the parties, the matter is taken up for final hearing.
3. By way of the present petition, the petitioner - original complainant has prayed as under:
[A] Your Lordship may be pleased to admit and allow this application;
[B] Your Lordship may be pleased to issue a writ of certiorari or any other writ, order or direction to quash and set aside the order dated 25.03.2013 passed by the learned Addl. CJM in the proceedings arising out of ICR No. 11 / 2013 registered at Veraval Police Station;Page 1 of 5
R/SCR.A/1271/2013 ORDER
[C] Your Lordship may be pleased to issue a writ of
Mandamus or any other writ, order or direction to direct a superior officer of police above the rank of the SP or any Independent Agency beyond the control of the SP to conduct at investigation arising out of ICR No. 11/ 2013 registered with Veraval Police Station;
[D] Your Lordship may be pleased to issue a writ of mandamus or any other writ, order or direction to the State of Gujarat to conduct at thorough inquiry against the illegal action taken by the Dy.S.P. At the instance of the SP and take appropriate action.
[E] Your Lordship may be pleased to issue a writ of Mandamus or any other writ order or direction to direct an investigation by an Independent Agency or a senior police official who is not under the control of Superintendent of Police.
[F] Kindly dispense with the filing of affidavit of the applicant as the applicant is in jail.
4. Mr.I.H.Syed, learned advocate for the petitioner does not press the prayers made in Para - 6(C), (D) and (E) at this stage.
5. Brief facts arise from the record as under:
5.1. The present petitioner - original complainant lodged FIR for the offences punishable under sections 326, 324, 323, 504, 403, 143, 147, 148 and 149 of the IPC against six accused persons on 16.02.2013 with Bhaktinagar Police Station, District Rajkot, which was registered as C.R.No. I 11 of 2013.Page 2 of 5
R/SCR.A/1271/2013 ORDER 5.2. Deputy Superintendent of Police, Veraval submitted an application on 25.03.2013 before the Assistant Chief Judicial Magistrate, Veraval and requested that the charges levelled against accused persons for the offences punishable under section 326 of the IPC may be dropped. Endorsement was made by the learned advocate appearing for the petitioner - original complainant that the matter may be adjourned for hearing the complainant since the injured was admitted in hospital for 25 days. On 25.03.2013, the learned Magistrate passed order that the matter be kept with FIR. The said order is under challenge by the original complainant.
6. Mr.I.H.Syed, learned advocate for the petitioner would submit that though the Magistrate has kept the said application with FIR and though a request was made by the original complainant for hearing, the learned Additional Chief Judicial Magistrate, without hearing the original complainant, treated the said application as allowed and released the accused persons on the same day as if the accused persons have not committed any offence for punishable under section 323 of the IPC. He would further submit that the same Additional Chief Judicial Magistrate, Veraval entertained an application filed by the accused for releasing them on bail, wherein he has observed that there are no offence, which can be made punishable under section 326 of the IPC, therefore, they were released on bail.
7. He would further submit that on one hand the application is kept along with FIR, however, without hearing the complainant or his advocate, the learned Magistrate had considered the application as if it has been filed for other offences without the offence punishable under Section 326 of the IPC. Therefore, the order Page 3 of 5 R/SCR.A/1271/2013 ORDER dated 25.03.2013 passed by the Additional Chief Judicial Magistrate, Veraval is required to be quashed and set aside.
8. In support of the submission, Mr.I.H. Syed, learned advocate for the petitioner relied upon the decision passed in case of Jagdish Nathabhai Solanki V. State of Gujarat reported in 2008(3) GLH 294 and submitted that the order dated 25.03.2013 passed by the Additional Chief Judicial Magistrate, Veraval may be quashed and set aside and the matter may be sent back for appropriate orders.
9 Mr.L.B.Dabhi, learned APP appearing for the respondent - State opposed this petition and tried to support the order passed the Additional Chief Judicial Magistrate, Veraval.
10. I have heard learned advocate for the respective parties.
11. It is an undisputed fact that the Investigating Agency has submitted an application to delete the charge of offence punishable under section 326 of the IPC and the same was opposed by the learned advocate for the original complainant and requested for time. It is also an admitted position that the learned Magistrate has passed the order that the application be kept with FIR. However, while dealing with the application for bail, the learned Magistrate has passed exparte order that no offence is made by the accused for the offence punishable under section 326 of the IPC, which is, in my opinion, a grave mistake committed by the learned Magistrate. In fact, the learned Magistrate has not passed any specific order below the application filed by the Investigating Agency.
12. I am in agreement with the submission made by Mr.I.H.Syed, learned advocate for the petitioner and applicability of the Page 4 of 5 R/SCR.A/1271/2013 ORDER decision passed in case of Jagdish Nathabhai Solanki V. State of Gujarat (supra). Considering the above aspect, the present petition requires consideration. The order dated 25.03.2013 passed by the learned Additional Chief Judicial Magistrate, Veraval below the application submitted by the Deputy Superintendent of Police, Veraval requesting to delete the charge of offence punishable under section 326 of the IPC is hereby quashed and set aside and accordingly is quashed and set aside.
13. The matter is remanded to the learned Additional Chief Judicial Magistrate, Veraval for deciding the application dated 25.03.2013 submitted by the Deputy Superintendent of Police afresh, in accordance with law and after hearing the complainant as well as the Investigating Officer. The Investigating Officer may submit afresh/appropriate report in connection with FIR at ICR No. 11 / 2013 registered with Veraval police station before the learned Additional Chief Judicial Magistrate, Veraval.
14. Rule is made absolute. Direct service is permitted.
(A.J.DESAI, J.) *Kazi...
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