Gujarat High Court
Bharatbhai vs State on 13 April, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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SCR.A/1855/2008 71/ 73 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1855 of 2008
With
SPECIAL
CRIMINAL APPLICATION No. 2259 of 2008
With
SPECIAL
CRIMINAL APPLICATION No. 1811 of 2008
With
SPECIAL
CRIMINAL APPLICATION No. 2176 of 2009
With
SPECIAL
CRIMINAL APPLICATION No. 2238 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE JAYANT PATEL
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
BHARATBHAI
UMEDSANG & 1 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
MS
ROMA I FIDELIS for
Applicant(s) : 1 - 2.
PUBLIC PROSECUTOR for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 13/04/2010
ORAL
JUDGMENT
In all the matters, common question arise for consideration for exercise of the power for transfer of the investigation and therefore, they are being considered by this common judgement.
The facts in nutshell can be summarised as under:
Special Criminal Application No.1855/08 This petition has been filed by one Bharatbhai Umedsinh and Ashok Kalusang Amarsang who are original complainants of complaint being C.R.No.I-187/08 registered with Sarkhej Police Station. At this stage, it is not necessary to refer to each and every contents of the compliant, but the gist of the complaint is that the accused Babubhai Jamnadas Patel has created a bogus Power of Attorney and has used it as genuine for the agricultural land of Block No.84 admeasuring 9105 sq. mtrs. of village Ambli which as per the complainant is inherited by them from their forefathers. The complainant has alleged that the accused No.1 Babubhai Jamnadas Patel, based on the Power of Attorney, has got the land converted into unrestricted tenure from restricted tenure and thereafter, has surrendered the said land to the Urban Development Authority at the time of preparation of Town Planning Scheme and in exchange thereto, another final plot has been obtained for which the construction permission has been granted by the Urban Development Authority. The land is thereafter converted into non agricultural land for residential use. The land is also sold to Godavariben Chunilal Thakkar and the said Godavariben Chunilal Thakor has given Power of Attorney to one Chitrak Shah. Thereby, conspiracy is hatched for grabbing of the land and to cause loss to the complainant as well as to the State Government. As per the complainant, they came to know about the aforesaid only when they were served with the notices on 16.02.2007 in the proceedings of this Court being LPA No. 2684/06 in SCA No.9327/06. As per the complainant, since the accused No.1 Babubhai Jamnabhai Patel is a sitting MLA of the party in power at the State level, no action was taken by the police for investigation of the complaint. Therefore, the complainant under these circumstances, has approached to this Court for the appropriate writ.
It may be recorded that initially, the prayer in the petition was to transfer the investigation of FIR being C.R.No.I-187/08 to CBI and thereafter, pending the petition, two prayers are added whereby it is prayed to transfer the investigation of C.R.No.I-187/08 to CID (Crime) or any other independent investigating agency and the another prayer added is to call for investigation papers of C.R.No.I-187/08 and to direct the IO for suitable investigation strictly in accordance with law and to further take disciplinary action against the IO.
It may be recorded that in this petition, initially on 25.09.2008, this Court (Coram:M.R. Shah,J.) when issued notice, directed the concerned IO to submit the action taken report for the investigation was carried out so far with respect to the complaint being C.R.No.I-187/08 registered with Sarkhej Police Station. Thereafter, on 21.10.2008, this Court (Coram:R.R. Tripathi,J.) passed the following order:
1. Learned Senior Advocate Mr.Oza with learned advocate for the petitioners files affidavits in rejoinder. A copy of which is served to learned Additional Public Prosecutor Mr.Raval. The same are taken on record.
2. Learned Additional Public Prosecutor Mr.Raval informs the Court that after registering the offence on 12.08.2008, Police Inspector Mr.G.D.Trivedi wrote letter dated 12.08.2008 to the District Superintendent of Police, Ahmedabad (Rural), a copy of which is produced at Annexure-A2 to the affidavit in reply filed by him, stating therein that, according to him, the offence is required to be investigated by Sabarmati Police Station of Ahmedabad City and therefore, necessary action be taken to transfer the same.
It then transpires from the record that the investigation was transferred to Sabarmati Police Station, therefore necessary presumption is that after the District Superintendent of Police received this letter, he must have written a letter to the Director General of Police, Gujarat State. A copy of that letter is not produced on record. The same is required to be placed on the record of this case.
As a necessary implication, the Director General of Police must have taken a decision on the request of the District Superintendent of Police. A copy of that decision is also not placed on record. The same is required to be placed on the record of the case.
3. The aforesaid two documents are not on record, whereas a copy of communication dated 22.09.2008 is on record, which is written by Inspector General of Police (Crime), Gujarat State, to the Police Commissioner, Ahmedabad. A copy of which is also marked to the District Superintendent of Police, Ahmedabad (Rural), whereby the investigation of the offence registered as C.R. No.I-187/08 under Sections 420, 465, 467 and 120(B) of the Indian Penal Code is ordered to be transferred to Ahmedabad City and the District Superintendent of Police is directed to inform the office after transferring the same.
4. Learned Additional Public Prosecutor Mr.Raval to place the aforesaid documents on record. The learned Additional Public Prosecutor may call for the entire file pertaining to this case so as to see that the same can be made available for perusal and necessary assistance can be rendered to the Court.
As recorded in the aforesaid order, the investigation of the complaint was ordered to be transferred to Ahmedabad City and the District Superintendent of Police was directed to inform the office after transferring the same and it was also observed that the learned APP may call for the entire file pertaining to this case so as to see that it can be made available for perusal and necessary assistance can be rendered to the Court.
It appears that thereafter, on 23.10.2010, this Court passed the following order:
1. Mr.K.P.Raval, learned Additional Public Prosecutor, places on record the summary of the events which have taken place in the present case and the supporting documents for the same. The same are taken on record.
2. Mr.Oza, learned Senior Advocate for the petitioners, invited attention of the Court to the provisions of Section 91, 160 and 161 of the Criminal Procedure Code and vehemently submitted that the Police authorities are not discharging the duty cast on them under various provisions of law. He, therefore, requested that the investigation be transferred to CID (Crimes) and the Head of the CID (Crimes) be asked to submit a report periodically so as to see that the matter remains under control and the petitioners are not under an impression that their case is not properly attended by the police authorities.
3. Mr.K.P.Raval, learned Additional Public Prosecutor, invited attention of the Court to an affidavit filed by one Shri K.B.Jhala, Senior Police Inspector, Sabarmati Police Station, Ahmedabad, who has produced an Action taken Report. The learned Additional Public Prosecutor invited attention of the Court to Item Nos.10 onwards and submitted that till 16.10.2008, the matter was under active investigation. He further submitted that the officer concerned is present before this Court and the officer is conveyed that the matter be given required attention as warranted under the law and the officer concerned will see to it that periodical reports are made to the Court about the progress in the matter.
4. The learned Additional Public Prosecutor to file further affidavit of Shri G.D.Trivedi, Police Inspector, Sarkhej Police Station, explaining the course of action adopted in the matter, more particularly the aspect of not specifically resorting to the provisions of Sections 91, 160 and 161 of the Code of Criminal Procedure.
The learned Additional Public Prosecutor to file an affidavit of S.P., Ahmedabad (Rural), who wrote a letter dated 14.08.2008 to D.C.P., Zone-II, explaining as to why a letter was written to the D.C.P., Zone-II and not to the Director General of Police.
Affidavits to be filed on or before 12.11.2008.
Matter to be listed on 14.11.2008.
A copy of this order be made available to Mr.K.P.Raval, learned Additional Public Prosecutor for its onward communication for compliance.
In the aforesaid order, this Court directed the learned APP to file an affidavit of S.P., Ahmedabad (Rural) who wrote the letter dated 14.08.2008 to DCP, Zone-II explaining as to why the letter was written to DCP, Zone-II and not to the Director General of Police.
Thereafter, on 05.12.2008, following order was passed by this Court:
Mr.Sunit Shah, learned Government Pleader, with Mr.A.J.Desai, learned Additional Public Prosecutor, places on record a copy of order dated 01.12.2008 passed by the office of the Police Commissioner, intimating the Senior Police Inspector, Sabarmati Police Station that investigation of Karanj Police Station FIR No.254/08 under Sections 420, 465, 466, 467 and 120-B of the Indian Penal Code is handed over to the Assistant Commissioner of Police, 'C' Division, Ahmedabad City.
The Assistant Commissioner of Police, 'C' Division, Ahmedabad City is directed to file Progress Report of the investigation in the aforesaid FIR No.254/08 on 24.12.2008.
It is clarified that in the event, the final report is ready, the same shall not be submitted without prior intimation to this Court.
As per the aforesaid order, the Assistant Commissioner of Police 'C' Division, Ahmedabad City, was directed to file Progress Report of the investigation in the aforesaid FIR. It has been stated that as original C.R.No.I-187/08 of Sarkhej Police Station was transferred to C.I.D. (Crime), new number was given as C.R.No.254/08 of Karanj Police Station.
Thereafter, on 16.01.2009, following order was passed:
Learned Additional Public Prosecutor, Mr.R.C. Kodekar files affidavit of Mr.B.Z. Patel, Assistant Commissioner of Police, 'C' Division, Ahmedabad City, who himself has narrated that the following documents/ material are required to be obtained by the officer in the matter of investigation. The details are set out in para 8 as items no.1 to 7.
In the facts and circumstances of the case, it is deemed fit that to dislodge the apprehension/s shown by the complainant in the Special Criminal Application, the officer concerned be directed and it is accordingly directed that all these material/ documents be collected and a report to that effect be filed by the next date of hearing, i.e. 23.01.2009.
2. In case it is felt necessary, the Commissioner of Police may relieve him of some of the responsibilities assigned to him which are set out in para 7.4 of the affidavit. It is stated therein that he is in-charge of 'C', 'L' and 'D' Divisions of Ahmedabad City as well as in-charge of Commandant of the Home Guard. He is also holding additional charge of S.C.S.T. Cell.
A copy of this order be made available to learned APP, Mr.Kodekar for its onward communication for compliance.
Office is directed to send a copy of this order to the Commissioner of Police, City of Ahmedabd by fax mode. Adjourned to 23rd January 2009.
Accordingly, it was directed that all the materials/documents be collected and report to that effect be filed by the next date of hearing.
On 23.01.2009, the following order was passed:
The learned senior advocate for the petitioners files an affidavit of one Shri Ashokbhai Kalubhai Chauhan in this matter, whereas an affidavit of one Shri Poonamji Jesangji Thakore is filed in Special Criminal Application No.2259 of 2008.
Mr.Kodekar, learned Additional Public Prosecutor, places on record 'Action Taken Report' dated 23.01.2009. In that very report, the Investigating Officer, who is a responsible officer of the rank of Assistant Police Commissioner, 'C' Division, Ahmedabad City has stated at the end of the report by way of 9 steps as to what remains to be done for further investigation in this matter. It is now expected that the Officer will proceed further in true spirit.
Besides the learned Additional Public Prosecutor, who is instructed by the officer concerned, who is present in the Court, is to convey to the Officer that he may incorporate the details of the action taken by the officer from the date of receipt of letter dated 05.12.2008, which according to him, was received by him on 12.12.2008, in that regard.
Besides, the learned Additional Public Prosecutor is also to place on record as to what steps the police authorities have taken for Item No.13 recorded in 'Action Taken Report' dated 11.11.2008 filed under the signature of Shri M.B.Joshi, Senior Police Inspector, Sabarmati Police Station, Ahmedabad City.
The matter is adjourned to 30.01.2009.
It will be appropriate to put it on record that the Investigating Officer has acted in furtherance of the order passed by this Court on 16.01.2009.
Copy of this order be made available to Mr.R.C.Kodekar, learned Additional Public Prosecutor, for its onward communication for compliance.
Accordingly, it was recorded by the Court that the officer has acted in furtherance to the aforesaid order passed by this Court on 16.01.2009 It appears that thereafter, the present matter also came up to be considered with another Special Cr. Application No. 2259/08, which is also forming part of the present group and this Court (Coram:
R.R. Tripathi, J.) vide order dated 02.09.2009, had called for the latest position in the matter through the learned APP. Thereafter, on 04.09.2009, this Court (Coram: R.R. Tripathi, J.) passed the following order:
1. The last substantial order passed in the matter was on 23.01.2009. On that day, Mr.Kodekar, learned Additional Public Prosecutor, placed on record, 'Action Taken Report' dated 23.01.2009. In that report, an officer of the rank of Assistant Police Commissioner, 'C' Division, Ahmedabad City, who was assigned the investigating of the matter, had set out of 9 steps at the end of the report depicting as to what remains to be done for further investigation in the matter.
The Court, taking into consideration the 'Action Taken Report' dated 23.01.2009, placed on record, observed that, It is now expected that the Officer will proceed further in true spirit .
Thereafter, as the order passed by this Court was challenged before the Hon'ble the Apex Court, the matter was adjourned from time to time. Finally on 02.09.2009, learned Senior Advocate Mr.Oza for the petitioners stated that the Hon'ble the Apex Court has pronounced the judgment today, i.e. 02.09.2009 and has dismissed the pending proceedings arising from the order passed by this Court in this and other matters.
Learned Senior Advocate for the petitioners made a serious grievance that since 13.02.2009, the Investigating Officer has not proceeded with the investigation at all and the Investigating Officer has granted stay to himself, though 'no stay' was granted by the Hon'ble the Apex Court of further investigation.
On 02.09.2009, learned Additional Public Prosecutor Mr.H.L.Jani appeared in the matter and requested that some time be granted so as to see that learned Additional Public Prosecutor Mr.Kodekar, who has appeared in this matter earlier and who is assigned these matters, assists the Court.
2. Today this matter is notified along with Criminal Misc.Application No.10359 of 2009 in Special Criminal Application No.1855 of 2008. The cause-list of the Court shows that the application is filed for joining as party. Learned Senior Advocate Mr.S.B.Vakil appeared in Criminal Misc.Application No.10359 of 2009 in the morning and requested that Criminal Misc.Application No.10359 of 2009 be adjourned as he wants to go through the judgment and order passed by the Hon'ble the Apex Court. Learned Senior Advocate Mr.Oza submitted on the ground of adjournment sought in Criminal Misc.Application No.10359 of 2009, main matter may not be adjourned and it be taken up. Leaned Senior Advocate Mr.S.B.Vakil stated that he is not asking for the adjournment of the main matter. Request made by learned Senior Advocate Mr.Vakil was granted. Criminal Misc.Application was adjourned to 11.09.2009.
Learned Additional Public Prosecutor Mr.Kodekar appeared in the matters in the morning and requested for time. The request was declined, in light of the grievance made by the petitioners that since 13.02.2009, the Investigating Officer has not proceeded with the investigation and he has granted stay to himself. Learned Additional Public Prosecutor then requested that the matters be kept in the 2nd half, so as to enable him to call the Investigating Officers and take instructions.
3. At 02.00 O'clock, learned Additional Public Prosecutor Mr.Kodekar placed on record, 'Action Taken Report', which is signed by one Shri NN Gohil, Assistant Commissioner of Police, 'C' Division, Ahmedabad City, along with bunch of papers which is accompanied with the opinion of the FSL.
On perusal of the 'Action Taken Report' and the date of the FSL report, the Court has all the reasons to believe that there is substance in the submissions made by the learned Senior Advocates for the petitioners. The Action Taken Report in terms states that even after having received the FSL report on 20.07.2009, which is dated 06.07.2009, the Investigating Officer has not done anything in the matter of investigation except, 'seeking an opinion of the Chief Public Prosecutor, City Sessions Court, Ahmedabad'.
At this juncture, learned Senior Advocate for the petitioners submitted that he is not able to find out as to under which provision of Criminal Procedure Code, such an opinion is sought and what is the purpose behind the same. He further submitted that he is of the firm belief that this is done with a purpose to give special treatment to 'the special accused' and to see that the investigation does not proceed further and is delayed to such an extent that the complainants are tired out.
It will be appropriate to note that FSL report is dated 06.07.2009. The FSL is situated at Gandhinagar and the Investigating Officer of this case is housed at Karanj Police Station. The distance between FSL, Gandhinagar and Karanj Police Station is approximately 30 km. Still, the papers of this importance took 14 days' to travel the distance of 30 km. It will not be inappropriate to mention that even if a person would have started on foot with these papers from FSL, Gandhinagar to Karanj Police, where the Investigating Officer is housed, he would have reached by evening and if not by evening, atleast by next day.
4. This is not enough. A responsible officer of the rank of Assistant Commissioner of Police, who is assigned the investigation of this matter during the pendency of the matter in this Court by order dated 01.12.2008 which is recorded in order of this Court dated 05.12.2008, found time to write a letter seeking legal opinion under what provisions of law, whether it is permissible or not, are the question which are not gone into at this stage, on 24.08.2009, i.e. after expiry of more than a month.
Again Karanj Police Station, the place of Investigating Officer and City Sessions Court, wherein the Chief Public Prosecutor, whose opinion is sought for, is having his office, are housed at a distance of approximately 500 mtr. The Investigating Officer is still waiting, till today 04.09.2009 to receive the legal opinion before proceeding with the investigation.
5. In the aforesaid facts, the Court has no doubt that even such a senior /higher officer of the rank of Assistant Commissioner of Police will not be able to answer the confidence reposed by this Court. The accused are out to frustrate the complaint, they are out to tire out the complainants, even if in the process mockery of the entire system of criminal justice is done. The Court, having left with no other alternative, has to order transfer of investigation of FIR being CR No.I-187 of 2008 registered with Sarkhej Police Station to an independent agency.
6. The Director General of Police, State of Gujarat is requested to furnish the names of three officers, who in his opinion can be assigned the investigation of this matter, in light of the observations made by the Hon'ble the Apex Court in Criminal Appeal Nos.1678 and 1679 of 2009 by judgment and order dated 02.09.2009 and in this order, along with other earlier orders, by the next date of hearing.
The relevant paragraphs of the judgment and order of the Hon'ble the Apex Court are as under:-
31. The area of dispute ultimately narrows down to the question as to whether the Courts can monitor investigation in respect of offences alleged to have been committed when the investigation had already been commenced by the investigating agency. There is little doubt that normally investigation of offences is the function of the investigating agencies and the Courts do not ordinarily interfere with the same. But, at the same time the High Court is vested with such powers, though the same are invoked only in cases where extraordinary facts are involved, necessitating such monitoring by the Courts. (emphasis supplied).
32.
In the circumstances, we are only required to see whether such an extraordinary fact situation exists in this case which warranted such a course of action to be adopted by the High Court.
33. Though Mr. Nariman has in unequivocal terms denied that such extraordinary circumstances exist in this case, which requires monitoring by the High Court, it cannot be denied that the progress of the investigation has been tardy and slow. It is in such circumstances that the investigation had to be handed over to the Assistant Commissioner of Police, 'C' Division, Ahmedabad, with a further direction upon the said Assistant Commissioner of Police to file a progress report of the investigation undertaken in respect of the First Information Report dated 24th December, 2008. (emphasis supplied).
34. Having regard to the factual circumstances in which the incident had occurred, the Court adopted the procedure for keeping a watch over the investigation in order to prevent a miscarriage of justice.
35. In cases where it has been brought to the notice of the Courts that investigation into an offence was not being carried on in the manner in which it should have been carried on, directions have been given by the Courts to the investigating agencies to conduct the investigation according to certain guidelines, as otherwise the very purpose of the investigation could become fruitless. The decisions cited by Mr. Nariman do not militate against the concept of the Court's power, where necessary, to direct the authorities to conduct themselves in a particular way. Once it is proved that there are no other circumstances except those which were projected, the need for such monitoring diminished. However, there is nothing in the decisions cited by Mr. Nariman to even remotely suggest that if the investigation as being stalled, for whatever reason, the Courts were powerless to pass appropriate orders to ensure that the investigation was proceeded with and justice was done to the parties.
Xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
38. We are unable to agree with Mr. Nariman that the High Court in the name of investigation directed both the manner and mode in which the investigation was to be conducted or the direction in which the investigation was to proceed. It is because of the tardy progress of the investigation that the High Court had to step in at the instance of the respondents herein. It was at the instance of the State of Gujarat, which filed Special Criminal Application No.1061 of 2008 on 2nd June, 2008, before the High Court, that a direction was issued to the Investigating Authorities to register the complaint on 11th August, 2008, by way of F.I.R. No.187 of 2008.
7. The observations made by the Court about the manner in which the present Investigating Officer Shri NN Gohil, Assistant Commissioner of Police, 'C' Division, Ahmedabad City, who is in charge of the investigation since 12.03.2009 (as per his say), as submitted by learned Additional Public Prosecutor Mr.Kodekar to the Court and as transpires from the papers placed before the Court, the FSL report dated 06.07.2009, which is stated to have been received on 20.07.2009, the opinion is sought by letter dated 24.08.2009, show inexcusable inaction on his part, requires to be inquired into either by the Director General of Police himself or by an officer nominated by him for the purpose. On conclusion of the inquiry, report be placed before the State Government for deciding as to what action is required to be taken. The State Government may in turn place on record of this Court the decision so taken.
Registry is directed to furnish a copy of this order, the other orders passed by the Court, wherein the Court has recorded dissatisfaction about the manner and method in which the investigation is carried on and also a copy of the aforesaid judgment and order of the Hon'ble the Apex Court for perusal of the Director General of Police as early as possible but not later than 07.09.2009.
As per the aforesaid order, this Court observed for inexcusable inaction on the part of the IO concerned at the relevant point of time to be inquired into either by the Director General of Police himself or by an officer nominated by him for such purpose and further directed the report to be placed before the State Government and the State Government was further directed to place on record of this Court, the decision so taken. The another aspect is that as per para 6 of the aforesaid order, the Director General of Police, Gujarat State was requested to furnish the names of three officers who in his opinion can be assigned the investigation of the case in light of the observations made by the Honourable Apex Court in Cr. Appeal Nos. 1678 and 1679/09 vide Judgement and Order dated 02.09.2009 and the present aforesaid order alongwith the earlier order and such was to be furnished on the next date of hearing.
It appears that thereafter, the present matter came to be considered with Special Cr. Application No.2259/09 forming part of the present group and on 10.09.2009, the following order was passed:
1. In both these matters, by order dated 4th September 2009, the Director General of Police was requested that, 'to furnish the names of three officers, who in his opinion can be assigned the investigation of this matter, in light of the observations made by the Hon'ble the Apex Court in Criminal Appeal Nos. 1678 of 2009 and No. 1679 of 2009 by judgment and order dated 02.09.2009 (quoted hereinabove) and this order along with other earlier orders, by the next date of hearing'.
2. Learned APP Mr. Kodekar submitted that the Director General of Police has furnished the names of three Police Officers by communication dated September 7, 2009 to the Registrar General. The sealed cover is opened and communication dated September 7, 2009 is perused. The Director General of Police has suggested names of three Police Officers, who, in his opinion, can be assigned the investigation of this matter. The names of those officers are as under:
1.
Shri Mohan Jha, IPS, Joint Commissioner of Police, Sector-I, Ahmedabad City.
2. Shri BD Waghela, IPS, DIG of Police, Ahmedabad Range.
3. Shri JK Bhatt, DIG of Police, Gandhinagar Range.
3. Learned Senior Advocate Mr. Oza for the petitioners submitted that as far as the information available with him is concerned, the Officer named at Sr. No. 1 & 3 is also assigned the duty of investigating the matters of Encounter of Ishrat. He therefore, expresses apprehension that it may not happen that on account of that assignment, investigation of this matter, again is delayed.
4. Learned APP strenuously submitted that the Director General of Police, while suggesting the names of the officers, was conscious of the fact that the names of the officers are to be suggested so as to see that the investigation is carried out up to the satisfaction of the Court including the Honourable the Apex Court, who, in its judgment in the Criminal Appeal Nos. 1678 of 2009 and No. 1679 of 2009 dated 2nd September 2009 had to make observation regarding investigation. Learned APP further submitted that the Director General of Police is also conscious of the fact that this Court had to observe in past and also in order dated 4th September 2009 that the investigation has not proceeded up to the satisfaction of the Courts and therefore, the apprehension on the part of the learned Senior Advocate Mr. Oza is not well founded. Learned Senior Advocate Mr. Oza emphatically clarified that he has no apprehension about the integrity of these officers and their capacity to investigate in the matter. When the Court has reposed confidence in the highest officer of the State, the Court has no reason not to accept the names suggested by the Director General of Police.
(Emphasis supplied)
5. In furtherance of order dated 4th September 2009, the Director General of Police is requested to assign the investigation of the subject matter of Special Criminal Application No. 1855 of 2008 to one of those three officers and to assign the investigation of M. Case No. 2 of 2008 to another officer, only with a view to see that the investigation is expeditiously carried out.
(Emphasis supplied)
6. Learned Senior Advocate for the petitioner requested that, as is provided by the Honourable the Apex Court in order passed in Special Leave Petition (Criminal) Nos. 5906 of 2008 and 5907 of 2008, dated 30th July 2009, similar provision be made in the present matters also. Order dated 30th July 2009 reads as under:
Having heard Mr. Ray, the learned counsel appearing on behlaf of the petitioner and Mr. Yashank P. Adhyaru on behalf of the respondent-State, for the time being, we direct that further investigation should be carried out by the Crime Branch i.e. CBCID under the supervision of a senior rank officer especially nominated by the Director General of Police. The CBCID shall investigate the matter afresh and file a status report before this Court within a period of two months. List thereafter. (emphasis supplied).
The investigating officer nominated by the Director General of Police shall record the statements of the petitioner and give an opportunity to him to point out the discrepancies Interim order shall continue.
7. Learned Senior Counsel for the petitioner submitted that in the present matter also, the Investigating Officer, who may be assigned the investigation, may be directed to file a Status Report before this Court after a reasonable time so that, the progress can be known.
8. Learned Senior Advocate for the petitioner made a reference to another order passed by the Honourable the Apex Court in Special Leave to Appeal (Criminal) No. 5639 of 2009 also, which according to him, has direct bearing on the present matter. There, the Honourable the Apex Court passed the following order on 7th September 2009:
At the request of the learned counsel for the petitioner, respondent Nos.3 to 9 are deleted from the array of parties at the risk of the petitioner. Amended cause-title shall be filed within two days.
Issue notice. Dasti service, in addition, is also permitted.
Mr. S. Udaya Kumar Sagar, Advocate, accepts notice on behalf of respondent No.2 and seeks time to file counter affidavit. Let the needful be done within two weeks. The rejoinder affidavit, if necessary, may be filed within two weeks thereafter.
Service of notice on the State may be effected through the standing counsel.
It is clarified that investigations in Criminal Inquiry No.97/2007 on the file of C.J.M., Ahmedabad Rural, shall continue, but the petitioner shall not be arrested without the leave of this Court. Having regard to the nature of the accusations, we would expect the Investigating Officer to complete the investigations expeditiously. (emphasis supplied).
9. This very matter, was before the Honourable the Apex Court for consideration. The accusations, which are referred to are very much the subject matter of these two matters also. That being so, the Court is of the opinion that it will be in fitness of things if the officers, who happen to be assigned the investigation, are directed to file a Status Report before this Court within a period of two months. Order accordingly. The Court has full faith and expectations too that the Investigating Officers will complete the investigations expeditiously.
(Emphasis supplied)
10. The matter is adjourned to 16th November 2009.
11. A copy of this order be made available to the learned APP for its onward communication for compliance.
As per the aforesaid order, this Court observed that in furtherance to the order dated 04.09.2009, the Director General of Police is requested to assign the investigation of the subject matter of Special Criminal Application No. 1855/08 to one of those 3 officers and assigned the investigation of M-Case No. 2/08 (which is subject matter of Special Criminal Application No. 2259/08) to another officer only with a view to see that the investigation is expeditiously carried out and the Court further directed to file status report before this Court within a period of 2 months and it was observed that the Court has full faith and expectations that investigating officer will complete the investigation expeditiously. It appears that thereafter, the investigation of the present matter arising from I-CR No.187/08 (C.R.No.254/08 of Karanj Police Station) was assigned to Shri Mohan Jha, one of the officer from the aforesaid three nominated officers. He has submitted the action taken report. As per the said report, the FSL report are yet to be obtained and further investigation will be required to be undertaken. Based on the same, the relevant revenue record is also called for. At this stage, the matter has been finally heard.
It may be recorded that in the present matter, one Cr. Misc. Application No.14872/08 in Special Cr. Application No.1855/08 has been filed by the original petitioner and as stated in the application, the summons was issued by the then IO to one Vijay Ramanlal and in response thereto, one Kamlesh Tripathi made a telephone call to IO and it is alleged that some threat was given which the said IO has referred to in the guidance sought from the Commissioner of Police, therefore, it has been alleged that this is one of the reason for transferring the investigation to CBI and the prayers made in the application is to register the offence against Vijay Ramanlal and Kamlesh Tripathi who administered the threat to the then IO.
Special Criminal Application No. 2259/08 The petitioners of this petition, one Kesarben Jesangji and Punamben Jesangji, are original complainants, who have filed a complaint before the learned Judicial Magistrate First Class, Ahmedabad against Babubhai Jamnadas Patel, his son Ketankumar Babulal Patel, Shankarbhai Prahladbhai Patel and Chitrak N. Shah alleging in substance the same allegation for creation of bogus Power of Attorney and utilisation thereof, which is alleged in the aforesaid Complaint being C.R.No.I-187/08 of Sarkhej Police Station which is subject matter of Special Criminal Application No. 1855/08, of course by different documents, but the pertinent aspect is that the land is different being Block No.80 admeasuring 3440 sq.mtr., situated at village Ambli. At the initial stage, when the complaint was filed before the learned Magistrate by the petitioners herein being Cr. Complaint No.103/08, the learned Magistrate on 11.04.2008 had sent the complaint for inquiry under section 202 of Cr.P.C. It appears that against the order of the learned Magistrate, the petitioners preferred Special Cr. Application No. 1060/08 before this Court with a prayer to grant investigation under Section 156(3) of the Cr.P.C. and this Court (Coram :R.R. Tripathi, J.) was pleased to pass the order dated 04-05.08.2008, whereby this Court quashed and set aside the order dated 11.04.2008 passed by the learned Magistrate and observed for inquiry under section 156(3) of the Cr.P.C. It also appears that the respondents therein carried the matter further before the Apex Court against the aforesaid decision of this Court being Cr.Appeal No.1509/08 and the Apex Court ultimately, remanded the matter to the Trial Court to decide the matter afresh. It appears that thereafter, the learned Magistrate once again considered the matter and vide order dated 16.10.2008, directed for investigation under section 156(3) of the Cr.P.C. and based on the same, the complaint has been registered being M-Case No.2/08 with Sarkhej Police Station. It appears that similar complaint also came to be filed against Ketankumar Babubhai Patel and others before the learned Magistrate concerned by one Prahladji Gabhaji Thakore which was registered Cr.Case No.589/08 alleging that he is one of the co-owner of the very land. In the said complaint, the learned Magistrate vide order dated 16.10.2008 ordered for investigation under Section 156(3) of the Cr.P.C. and accordingly, another complaint being M-Case No.3/08 has also been registered with Sarkhej Police Station. The aforesaid are the two complaints which are the subject matter of the present petition.
It is alleged by the petitioners that in spite of the complaint registered, no action has been taken by the concerned Investigating Officer because the accused in the complaint is Babulal Jamnadas Patel, who is a sitting MLA from the ruling party. The prayers made by the petitioners in the present petition is to transfer the investigation of M-Case Nos.2/08 and 3/08 registered with Sarkhej Police to CBI and the another prayer made in the petition is to transfer the investigation of the very M-Case Nos.2/08 and 3/08 to CID(Crime) or any other independent investigating agency.
It may be recorded that in the present petition, on 11.05.2009, this Court (Coram:R.R. Tripathi,J.) recorded the statement of the learned APP that the case diary is verified and the investigation is on. Thereafter, the matter was adjourned from time to time since the matter was pending before the Apex Court. However, after the pronouncement of the order by the Apex Court , the matter was taken up for hearing on 02.09.2009 by this Court and while adjourning the matter on 04.09.2009, it was observed that the learned APP shall get the instructions from the concerned investigating officer and apprise the Court about the latest position in the matter of investigation. The matter was further considered on 04.09.2009, together with Special Cr.Application No.1855/08 and the common order as reproduced at para 10 while referring facts of Special Cr.Application No.1855/08 was passed.
As per the above referred order, the Director General of Police, Gujarat State was requested to furnish names of 3 investigating officer who in his opinion could be assigned with the investigation of the case in light of the observations made by the Apex Court. This Court further observed about the manner and method in which the present IO Shri P.K. Brahmbhatt, PSI, Sarkhej Police Station carried out the investigation and it was also observed that such inaction on the part of the IO requires to be investigated into by the Director General of Police himself or an officer nominated by him for such purpose and upon the conclusion of the inquiry, the report be placed before this Court about the action against Shri P.K. Brahmbhatt, PSI, Sarkhej Police Station and this Coutr also directed the Registry to furnish the copy of the order to the Director General of Police. It appears that thereafter, on 10.09.2009, this matter came to be considered with the aforesaid Special Cr. Application No.1855/08 and the common order as reproduced earlier at para 12 while referring the facts of Special Cr. Application No.1855/08 was passed.
As per the aforesaid order, this Court observed that in furtherance to the order dated 04.09.2009, the Director General of Police is requested to assign the investigation of the subject matter of Special Criminal Application No. 1855/08 to one of those 3 officers and assigned the investigation of M-Case No. 2/08 to another officer only with a view to see that the investigation is expeditiously carried out and the Court further directed to file status report before this Court within a period of 2 months and it was observed that the Court has full faith and expectations that investigating officer will complete the investigation expeditiously.
It appears that thereafter, the investigation is assigned to Shri B.D.Vaghela, Deputy Inspector General of Police (Law and Order), one of the officer whose name was mentioned in the order and when the Court further took up the matter for hearing on 16.11.2009, it was recorded as under:
Learned APP Mr.R.C. Kodekar places on record a xerox copy of the progress report filed by one Mr.B.D. Vaghela, Deputy Inspector General of Police (Law and Order), Gujarat State dated 16.11.2009. Learned APP Mr.Kodekar wants some time to place the same along with affidavit on record. Adjourned to 26.11.2009. It is expected that the learned APP will file affidavit well in advance, preferably by 19.11.2009 serving an advance copy to the learned advocate for the applicant.
Accordingly, the action taken report filed by Shri Vaghela was taken on record. As per the said report of Shri B.D.Vaghela, the dishonest intention is lacking but the further investigation is to be carried out and since the matters are pending before the Apex Court being Criminal Misc. Application Nos.14469/08, 14471/08 and 14473/08 and as per the order of the Apex Court dated 11.09.2009 , the Investigation is not stayed, but without permission, the accused are not to be arrested, therefore, the matter is to be moved to the Apex Court for vacating of the prohibitory order against the arrest of the accused concerned. Shri B.D. Vaghela, the present IO has filed the affidavit wherein he has stated that the land is still in the name of the complainant party and the registered Sale Deed dated 30.07.2003 has been cancelled and the land is still open and there is no construction over it and the land is not transferred or assigned as per the revenue record and hence, the effect of the so called Power of Attorney dated 24.03.2003 is nullified. It is also prayed to grant more time to investigate into the matter.
It may be recorded that one of the accused Ketan Babubhai Patel has preferred Cr. Misc. Application No.822/10 in Sp. Cr. Application No.2259/08 alleging to be joined as party in the proceedings of the main Special Criminal Application or in alternative, it is prayed to permit the applicant to intervene in the proceedings to bring true and correct facts before the Court in the interest of justice.
Special Cr. Application No.1811/09 The present petition is preferred by one Pravin Kashiram Patel alleging that his father was the joint owner of the land bearing Block No.533 of Final Plot No.63 admeasuring 1214 sq. mtr at village Ambli and one Chitrak Shah has created a forged Power of Attorney of his father and based on the said Power of Attorney, the land is converted for non agricultural use and the construction permission is also obtained. As per the petitioners, when he went to Sarkhej Police Station for registering of the complaint in March 2006, the officer of the Sarkhej Police Station refused to take complaint, therefore, the petitioner sent the complaint by Registered A.D. Post to Sarkhej Police Station, whereby the summons was issued to the petitioner to remain present and a threat was given by the police to the petitioner, therefore, the petitioner had preferred Special Cr. Application No. 712/06 before this Court together with his mother and three brothers which came to be withdrawn with a view to approach before the Trial Court. The petitioner thereafter filed a complaint before the learned Magistrate and below the said complaint, the learned Magistrate was pleased to direct the police for inquiry under section 202 of the Cr.P.C. The petitioner being aggrieved by the said order of the learned Magistrate, preferred Cr.Revision Application No. 252/07 before this Court and in the said Cr. Revision Application No.252/07, ultimately, this Court allowed the revision and quashed and set aside the order of the learned Magistrate and directed the police to investigate into the complaint under section 156(3) of the Cr.P.C. It appears that thereafter, the complaint has been registered as M-Case No.3/09 with Sarkhej Police Station. It is alleged by the petitioner that after registration of the complaint, no proper action is taken for investigation, therefore, keeping in view the other complaints filed against one of the accused Shri Chitrak Shah, which are pending before this Court, the prayer is made to transfer the investigation of the complaint being M-Case No.3/09 dated 28.05.2009 registered with Sarkhej Police Station to CBI or to any other investigating agency like CID (Crime).
It may be recorded that in the present petition, this Court (Coram:R.R.Tripathi, J) vide order dated 04.09.2009 had issued notice and thereafter, this matter once again came up for consideration before this Court (Coram:H.B.Antani,J.) on 12.03.2010 and the following order was passed:
Heard learned counsel for their respective parties at length.
Learned senior counsel Mr.Yatin Oza states that vide order dated 11th March, 2010 the Hon'ble Apex Court has requested the High Court to dispose of all the four matters within a period of one month. The learned counsel is ready to argue the matter even today.
Learned senior counsel Mr.Raju who is appearing in the application filed for joining party [Cri.Misc.Appln. No.1240 of 2010] in Special Criminal Application No.1811 of 2009 states that this matter pertains to transfer of investigation by the police which was directed to be conducted under section 156(3) of Cr.P.C. as per the order passed in Criminal Revision Application No.252 of 2007 by this Honourable Court whereby this Honourable Court set aside the order of investigation/inquiry under section 202 of Cr.P.C. passed by the learned Chief Judicial Magistrate, Ahmedabad Rural being Criminal Inquiry No.97 of 2007 and directed police investigation under section 156(3) of Cr.P.C. Mr.Raju further states that against the said order of this Honourable Court passed in Criminal Revision Application No.252 of 2007 directing police investigation under section 156 (3), Special Leave Petition [Criminal] No.5639 of 2009 has been filed before the Honourable Apex Court and the Hon'ble Apex Court has not only granted stay against arrest but has also directed that investigation in Criminal Inquiry No.97 of 2007 on the file of the learned Chief Judicial Magistrate, Ahmedabad Rural be continued. Mr.Raju submitted that since the said inquiry is an inquiry under section 202 of Cr.P.C., the present application i.e. Special Criminal Application No.1811 of 2009 seeking transfer of investigation under section 156(3) to different police authority has become infructuous in view of the interim directions of the Apex Court.
In view of the aforesaid submissions, the matter is adjourned to 16.03.2010. To be listed on separate board on 16.03.2010.
It may be recorded that Cr. Misc. Application No.1240/10 has been preferred by Chitrak Shah who is accused in the complaint, for being joined as party in the proceedings of Special Cr. Application No.1811/09 and it has been stated in the application that the applicant be joined as party so as to bring on record the true and correct facts. Together with the said application, the order of the Apex Court dated 07.09.2009 has been produced in Special Leave to Appeal (Criminal) No. 5639/09 arising from the Judgement dated 24.03.2009 passed by this Court in Criminal Revision Application No.252/07 and as per the said order, it has been directed by the Apex Court that the investigation in Criminal Inquiry No.97/07 on the file of Chief Judicial Magistrate, Ahmedabad (Rural) shall continue, but the petitioner shall not be arrested without leave of this Court. It is further observed that having regard to the nature of accusations, it would be expected that the investigating officer shall complete the investigation expeditiously.
It may also be recorded that the learned APP has placed on record the action taken report submitted by Shri J.P.Raol, Police Inspector of Sarkhej Police Station, wherein it has been stated as per the FSL report, there is no signature of the father of the complainant and the signature is not genuine, therefore, there is involvement of Chitrak Shah and he is required to be arrested, but as there is Prohibitory Order of the Apex Court, no action is taken in this regard for arrest and the matter is referred to the Legal Department to move the Apex Court for appropriate orders. At this stage, the matter is finally heard.
Special Criminal Application No.2176/09 The present petition has been preferred by one Yogesh Bhalchandra Patel, who is complainant of Cr.No.I-213/08 registered with Sanand Police Station. As per the petitioner, he is the co-owner of land bearing Survey No.166 situated at village Nidhrad, Taluka Sanand and his family had another land situated at village Ambli bearing Block No.533 of Final Plot No.63+29, which has been merged at the instance of Shri Babulal Jamnadas Patel, for which non agriculture use permission has been granted. It is alleged by the petitioner that Shri Babulal Jamnadas Patel instigated and created a fraud tenant (ganotiya), i.e. Mahipatsinh Laxmansinh Vaghela and in collusion, a panchnama was drawn by Talati of village Nidhrad which is false and bogus. It is the case of the petitioner that the land in the revenue record is on his name and is also in cultivation by the owner and in spite of the same, under the pretext of tenant (Ganotiya) Maihiatsinh, the application is moved to Mamlatdar and status quo is ordered. As alleged in the complaint, a crowd of about 60-70 persons with weapon on account of the various proceedings, came at the land and committed robbery and caused injury for which the treatment is also taken. The petition approached to the Sanand Police Station for help but the Police Inspector, Sanand Police Station refused to register the complaint, therefore, the uncle of the petitioner had to approach to the office of the District Superintendent of Police. The petitioner had submitted written complaint to the Sanand Police Station. On the contrary, the complaint being Cr.No.I-213/08 with Sanand Police Station was registered prior to the petitioner's complaint. As the complaint was not registered, the petitioner had to file Special Cr. Application No.1821/08, and thereafter, was ultimately registered vide Cr.No.I-213/08. Initially, the complaint was registered under section 325 of the IPC, but thereafter the charge of section 397 of IPC was also added. The allegation in the petition is that the investigating agency is trying to shield the accused Babubhai Jamnabhai Patel and the petitioner fears that the way in which the investigation is going on and inaction on the part of the investigating agency is such that the accused will get time to tamper and hamper with the witnesses. Under these circumstances, the present petition with a prayer to transfer the investigation of complaint being C.R. NO.I-213/08 registered with Sanand Police Station from CID (Crime) to CBI or any other investigating agency.
It may be recorded that in this petition, on 29.10.2009, this Court (Coram:R.R. Tripathi, J.), passed the following order:
Heard learned senior advocate Mr. Y.N. Oza with learned advocate Ms. Roma Fidelis for the Petitioner.
The learned senior advocate for the petitioner invited attention of the Court to various orders passed by this Court in earlier proceedings, being Special Criminal Application No.1821 of 2008.
The learned senior advocate for the petitioner submitted that least it be argued or alleged against the petitioner that he has not placed the correct facts, as are set out in Special Criminal Application No.1821 of 2008, his draft amendment be granted by which he places the entire record of Special Criminal Application No.1821 of 2008.
Amendment is allowed.
The learned senior advocate then invited attention of the Court to the order passed by this Court (Coram: Hon'ble Mr. Justice D.H. Waghela) on 23.1.2009 and more particularly the directions which are issued in para 7. He submitted that the other paragraphs are also equally important and relevant for the purpose of appreciating the method and manner in which the Investigating Agency is conducting itself.
The learned senior advocate then invited attention of the Court to the order dated 25.6.2009, which is passed in Criminal Misc. Application No.3834 of 2009, which is an application seeking extension of time moved after the expiry of the time granted and order was obtained on
25.6.2009 when even sought for period had expired.
At this juncture, the learned Additional Public Prosecutor wants time to take instructions in the matter so as to place on record the status of the investigation as on today and to keep investigating officer present in the Court so as to (if required) render necessary assistance to the learned Additional Public Prosecutor to convey this Court the development in the matter.
At this stage, ad-interim relief is granted in terms of para 22(C).
The matter is adjourned to 02.11.2009.
As per the aforesaid order, the status of the investigation was to be placed on record and the Court further directed the interim relief in terms of para 22(C), whereby investigating officer was restrained from submitting the final report of investigation of the complaint being CR. No.I-213/08 registered with Sanand Police Station. Thereafter, on 03.11.2009, this Court passed the following order:
Learned Additional Public Prosecutor Mr.H.L.Jani appears in the matter and places on record, Further Report of Shri P.B.Gondhiya, Inspector General of Police, Crime-1, CID Crimes & Railways, Gujarat State, Gandhinagar along with a letter received from Mr.Jitendra K.Pandit, Advocate received at 11.55 am on 03.11.2009.
When the Court put to learned Additional Public Prosecutor as to what concrete action is taken, he requests for further time in the matter. At his request, the matter is adjourned to 04.11.2009 at 02.00 pm. The aforesaid shows that the investigation is assigned to Shri P.B. Gondhiya, IGP of CID (Crime) and the concrete action taken report was to be submitted. Thereafter, on 04.11.2009, time was prayed to submit the progress report. Again on 16.11.2009, when the matter was taken up for hearing, it was recorded that apology of advocate Shri Jitendra K. Pandit was accepted and it was observed that advocate Shri Jitendra K. Pandit will extend full cooperation to the investigating agency. Thereafter, on 04.12.2009, the progress report of the investigation was placed on record by the learned APP and once again on 11.12.2009, further status report was submitted. It may be recorded that as per the status report submitted by Shri P.B. Gondhiya, I.G., CID Crime, who is the investigating officer, as per the handwriting expert's report, the signature of Kashiram Kalidas Patel on the alleged document is not genuine and the investigation is practically completed. At this stage the present matter is finally heard.
Special Criminal Application No.2238/09 The present petition has been filed by Lalit Babubhai Patel who is the son of Babubhai Jamnadas Patel, alleged as accused in complaint vide C.R. No.I-213/08 filed by Pravin Kashibhai Patel, the petitioner of Special Criminal Application No.2176/09. It is alleged in the petition that the summons has been issued by respondent No.2 Shri P.B.Gondhia who is the investigating officer and it has been stated that at the time of incident, the father of the petitioner was attending the function in the Town Hall presided over by the Honourable Chief Minister and he was present in the Sub-Registrar's office for execution of the document and it is alleged that the second respondent, Investigating Officer has gone to the land for investigating the matter not forming the basis of the complaint and has applied to the learned Judicial Magistrate for addition of the offence. It is alleged that the investigation is being done by the respondent No.2 in unfair and bias manner. Under these circumstances, the present petition and the prayer made is to transfer the investigation of FIR vide Cr.No.I-213/08 of Sarkej-Sanand Police Station from respondent No.2 or CID(Crime) to any other appropriate investigating agency as this Court deems it appropriate.
It may be recorded that in the present proceedings, on 04.03.2010, though notice was not issued, the learned advocate had appeared for respondent Nos. 2 and 3 and time was prayed before this Court. Thereafter, on 12.03.2010, this Court (Coram: S.R.Brahmbhatt, J.) passed the following order:
1. Shri S.B. Vakil, learned senior counsel for the petitioner has submitted that this petition is arising out of the FIR No. I-213/2008 registered with Sanand Police Station, and this petition contains prayer with regard to transfer of investigation. The petitioner is named as accused in the said FIR. It is further submitted that original complainant have also preferred petition with the same prayer for transfer of investigation and that has been listed today before this Court [Coram: H.B. Antani, J] along with other allied matters. In view of this, this matter may also be tagged along with the petition that is preferred by the original complainant for transfer of investigation and other allied matters, so as to maintain consistency.
2. Shri Oza, learned senior counsel who appears for original complainant submits that he has no objection to the said request.
3. This Court is of the view that the office may place this matter before the Honourable The chief Justice for passing appropriate orders in view of the aforesaid submission made by Shri Vakil for the petitioner.
4. Office is directed to place this matter before the Honourable Chief Justice as soon as possible as Shri Oza has submitted that Honourable Supreme Court has given some time limit for disposal of those allied matters.
At this stage, the matter is finally heard.
Heard Mr. Y.N.Oza and Mr.B.B.Naik, learned senior counsels with Ms.Roma L. Fidelis for the respective parties in the concerned petitions, Mr. S.B.Vakil with Ms.Archana Acharya for the concerned petitioner, Mr. Kodekar, learned APP for the State and the Police Officers in all the matters, learned advocate Mr.S.V.Raju for S.V.Raju Associates and Mr. Jayant Panchal with Parthiv B. Shah are also heard for the applicants of the respective applications in the concerned petitions.
As such, in all the petitions, in substances, the following questions arise for consideration before this Court:
Whether the investigation deserves to be transferred to other investigating agency or not?
If question No.1 is in affirmative, whether the investigation deserves to be transferred to CBI or not?
Whether any further direction is required to streamline the investigation and to ensure that the real offenders are booked and the innocent persons are not harassed.
In order to examine the aforesaid aspects, it would be relevant to refer to the legal position. As per the provisions of Cr.P.C., whenever any complaint is filed or registered with the police, which is a cognizable offence, the powers are being regulated by the provisions of Chapter-XII of Cr.P.C. If from the information received or the complaint received, the concerned police officer has reason for suspecting the commission of offences, he shall investigate and submit the report as per section 157 of the Cr.P.C. to the concerned Magistrate who has power to take cognizance of such offence. Section 158 of Cr.P.C. provides for manner in which the report is to submitted. Section 159 provides for power for holding of the preliminary inquiry. Section 160 provides for enabling powers of the Police Officer to require the attendance of the witnesses for examination of the witnesses. Section 161 provides for examination of the witnesses. Section 162 of provides for recording of the statement. The pertinent aspect is that section 163 provides for no inducement to be offered. Section 164 provides for recording of the statement including confessions. Section 165 provides for power of the search by the Police Officer. Section 166 provides for enabling power of the Police Officer to issue search warrant. Section 167 provides for the procedure to be followed when the investigation cannot be completed within 24 hours. Section 168 provides for report of the investigating officer by the subordinate investigating officer. Section 169 provides for release of the accused when the evidence deficient. Section 170 provides for the cases to be sent to the Magistrate when evidence is sufficient.
Section 172 provides for maintaining of the diary in the proceedings of investigation. Section 173 provides for submission of the investigation report to the concerned Magistrate, the result of the investigation. There are other enabling provisions under the Cr.P.C for the manner and mode of investigation of the offences. Section 190 of Chapter-XIV of the Cr.P.C. provides for cognizance of the offences by the concerned Magistrates.
At this stage, it would be worthwhile to extract the role of the concerned Magistrate when the report is submitted to him by the Police, as observed by the Apex Court in its decision in the case of Gangadhar Janardhan Mhatre Vs. State of Maharashtra reported at 2004(7) SCC 768, wherein the Apex Court at paras 9 to 12 has observed as under:
9.
When a report forwarded by the police to the Magistrate under Section 173(2) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and taken the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1(a) though it is open to him to act under Section 200 or Section 202 also. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh case that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard.
(Emphasis supplied)
10. We may add here that the expressions charge-sheet or final report are not used in the Code, but it is understood in Police Manuals of several States containing the rules and regulations to be a report by the police filed under Section 170 of the Code, described as a charge-sheet . In case of reports sent under Section 169 i.e. where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is termed variously i.e. referred charge, final report or summary. Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted by the police. Though the notice issued under some of the Police Manuals states it to be a notice under Section 173 of the Code, there is nothing in Section 173 specifically providing for such a notice.
11. As decided by this Court in Bhagwant Singh case the Magistrate has to give notice to the informant and provide an opportunity to be heard at the time of consideration of the report. It was noted as follows:
The Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.
12. Therefore, the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh case the right is conferred on the informant and none else.
The aforesaid makes the legal position clear that whenever any complaint is filed or registered or an information is received by the Police for any cognizable offence, the investigation is to be done in the manner as provided under the Cr.P.C. and after the report is submitted to the learned Magistrate, the matter does not end or is not dependent upon only the report submitted by the investigating officer, but is dependent upon the application of judicial mind by the learned Magistrate whether to accept the report or not to accept the report. Further, even if the police officer has submitted the report to the effect that the offence is not committed or otherwise, the learned Magistrate while applying the judicial mind is required to consider the contents of the investigation report including the statement of the witnesses and materials produced therewith and if the learned Magistrate finds that prima facie case is made out for commission of offence, he has power to negative the opinion submitted by the investigating officer and to take cognizance of the offences and to issue process to the accused. In the event the report of the investigating officer is that no offence is committed in full for the alleged offences or otherwise or the report is in negative, and if the learned Magistrate decides not to take cognizance and to drop the proceedings or is of the view that there is no sufficient ground for proceeding against some of the person mentioned in the FIR, he would issue the notice to the informant or the complainant and grant opportunity of being heard and thereafter only, the judicial decision is to be taken. Under these circumstances, the contention of the petitioners who are original complainant cannot be accepted to the extent that if there is no proper investigation, serious prejudice is going to be caused to the complainant at the stage when the investigation is on and the report is yet to be submitted to the learned Magistrate.
However, that does not mean that the investigating officer shall not carry out the investigation in the manner provided under various provisions of the Cr.P.C. nor this Court would allow any investigating officer to shirk from its responsibility and the statutory duty cast upon by the Code for investigation of the complaint for any cognizable offence while exercising the power under Article 226 of the Constitution.
If any victim has filed any complaint for a cognizable offence, it would be required for the investigating agency of the State to appropriately conduct the investigation in a manner that one who has committed offence is booked, but at the same time, it would also be required for the Investigating Officer to ensure that the innocent persons are not harassed. The pertinent aspect is that as per the scheme and mechanism of the Code, the power of the investigation are assigned to the investigating agency, but such powers are subject to judicial control of the learned Magistrate or the concerned Court inasmuch as if the report is negative or there is no proper investigation or that inspite of the material coming on record for commission of the offence, the report is not properly submitted, the concerned Magistrate may accept the report only if he is satisfied about the report subject to the hearing given to the complainant and if he finds that there is no proper investigation, he has also power to direct for further investigation and if on the basis of the material produced before him, the learned Magistrate finds that the offence is committed, then he has power to take cognizance and to issue process to the accused. It is undisputed position in all the present cases that the matters are at the stage of investigation with the police and the reports of the completed investigation are yet to be submitted before the learned Magistrate in C.R.No.187/08 (C.R.No.254/08) (Special Cr.Application No.1855/08) and M-Case No.3/09 (Special Cr.Application No.1811/08). However, in C.R. No.213/08 (Special Cr.Application No.2176/09 and Special Cr. Application No.2238/09) and in M-Case Nos.2/08 and 3/08 (Special Cr. Application No.2259/08), the investigations are stated to be complete and the reports are filed but further action is to be taken and the learned Magistrate has yet to pass appropriate orders. At this stage, the prayers are to be considered by this Court for exercise of the power under Article 226 of the Constitution of India.
At this stage, it would be worthwhile to refer to the decision of the Apex Court in the case of Kedar Narayan Parida and Others Vs. State of Orissa & Anr. reported at 2009 (9) SCC 534, wherein the question arose before the Apex Court as to whether the High Court in exercise of the power under Article 482 could issue appropriate direction in the matter at the stage of investigation in suo motu exercise of the powers. The High Court did exercise the power and in appeal before the Apex Court, it was inter alia observed at para 49, relevant of which reads as under:
We are unable to accept Mr. Sharma's submissions that the High Court could not have interfered with the directions given by the Director General of Police to the Inspector General of Police, Central Range, Cuttack, to submit a fresh Test Note despite the supervisory report which had been submitted by the Additional S.P., Jajpur, indicating that a case had been made out to go to trial as against all the 19 accused. When any illegality and/or mala fide action on the part of the Investigating Authorities, either on its own or at the behest of an interested party, is brought to the notice of the High Courts, the High Courts in exercise of their inherent and plenary powers are entitled to intervene to set right the illegality and/or mala fide action on the part of the Investigating Authorities. The decision in H.S. Bains's case (supra) clearly reiterates such proposition.
(Emphasis supplied) In the very decision of the Apex Court, the case of Abhinandan Jha Vs. Dinesh Mishra reported at AIR 1969, SC 117 was considered and the Apex Court observed thus:
While indicating that the courts should not intervene in matters of investigation, which, under the scheme of the Code of Criminal Procedure, has been vested in the Police Authorities, an exception has also been made that in certain circumstances the court could intervene in order to do justice to the parties.
(Emphasis supplied) The Apex Court further observed at para 52 as under:
As we have observed in other cases, the courts, and in particular the High Courts, are the guardians of the life and liberty of the citizens and if there is any flavour of deliberate misuse of the authority vested in the Investigating Authority, the High Court or this Court may certainly step in to correct such injustice or failure of justice.
(Emphasis supplied) Thereafter, the Apex Court had found that the direction given by the High Court was in order to prevent injustice was being done on account of the intervention of the influential persons which had not only the effect of negating the effect of supervisory report of Additional S.P., Jaipur, but also resulted in shielding some of the accused, therefore, the order of the High Court was not interfered with.
In the case of State of West Bengal and Ors Vs. Committee for Protection of Democratic Rights, West Bengal & Ors reported at 2010 STPL (Web) 129 SC, while considering the question about the power of the constitutional Court under Article 32 or 226 for entrustment of the investigation to CBI, the Constitutional Bench of the Apex Court recorded conclusions, the relevant of which for the present group of matter is at para 45(ii) as under:
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its
fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence,which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. (Emphasis supplied) While recording the final analysis at para 46, the Apex Court did observe that the Apex Court and the High Court have not only the power and jurisdiction, but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. But at the same time, the further observations by way of caution, have been made at para 47, relevant of which reads as under:
Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers.
The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.
(Emphasis supplied) Under these circumstances, it can be said that it is by now well settled that this Court under Article 226 of the Constitution has power to protect the rights of the citizen and to enforce the duty upon the investigating agency to ensure that there is fair and impartial investigation against any person accused of commission of cognizable offence which may also include its own officer. While exercising the power, the facts of each case is to be considered for ensuring that there is fair and impartial investigation. Further, such power are to be exercised not in routine but by way of exceptional circumstance and the reason being that in normal circumstance, as referred to hereinabove, by extracting the decision of the Apex Court in the case of Gangadhar Janardhan Mhatre(supra), the matter is to be left to investigating agency and to the concerned Magistrate for overseeing the investigation or getting or taking cognizance of the offence or otherwise. It is only in exceptional circumstance, this Court may be required to step into the investigation to streamline the investigation for ensuring the fairness and impartiality in the investigation so as to instill confidence into the investigation and to enforce law and it is only in very very extraordinary case, where there is sufficient material before the Court to record the substance in the apprehension of the complainant or the victim that even highest officer of the State, if assigned with the investigation, has failed in duty or would be failing in duty cast upon the statute in the matter of investigation of any cognizable offence, this Court may be required to exercise the power for entrustment of the investigation to altogether a different investigating agency like CBI in the present case. Be it noted that such satisfaction either by stepping into the investigation or for transferring the investigation to some other investigating agency like CBI, cannot be recorded on a mere ipsi dixit of a complainant or a victim nor can be recorded only because the concerned investigating officer has not acted as per the desire of the victim nor such investigation can be transferred only because the accused apprehends that there will be further any strict action by the investigating officer. The degree of malafide or malice on the part of the investigating officer to carve out a case in the exceptional category may be for transferring the investigation to some other officer or otherwise, would require a cogent material on the face of it which would leave the Court to satisfactory material substance in the apprehension voiced by either side, may be the complainant or the victim or the accused. If such an approach is not made by the Courts in overseeing the investigation, it would leave room for the complainant to compel the investigating officer to book the accused, even if the crime is not found to have been committed and would equally leave room for the accused to get scot-free even if the crime is committed. Creation of such a situation would take away the discretion to be exercised by the investigating officer for conducting the investigation in a fair and impartial manner, therefore, while exercising the power, all care and caution is required to be taken on the aforesaid aspects.
The examination of the facts of the present case in light of the aforesaid legal position shows that it is not a matter where the alleged offence is stated to have been committed by Babubhai Jamnadas Patel in capacity as the Member of legislative assembly while discharging the duty as a member of the legislative assembly. The offence alleged is in his personal capacity. In spite of the same, it does appear that at the initial stage, when the complaints were filed against the aforesaid alleged accused, the police or the concerned investigating officer did not act for investigation immediately and it is on account of the intervention by this Court through various aforesaid interim orders, the actions were taken for investigation into such complaints. However, the pertinent aspect is that initially investigations were with the concerned PI or the Police Officer of the Police Station. Thereafter, this Court had directed for transferring of the investigation and the same was accordingly acted upon. Not only that, but thereafter, when the investigation was made and the progress report was submitted, this Court vide the aforesaid order dated 04.09.2009 in Special Cr. Applications Nos. 1855/08 and 2259/08 had called upon the Director General of Police, Gujarat State to furnish the names of the officers who in his opinion could be assigned investigation in the matter in light of the observations made by the Apex Court in Cr. Appeal Nos. 1678/09 and 1679/09 vide order dated 02.09.2009 and the orders passed by this Court on the earlier occasions. It appears that thereafter, on 10.09.2009, as per the above referred order, names of three officers of the rank of IG cadre were submitted and when the names were submitted, the Court did record the submission on behalf of the complainant-petitioners that there is no apprehension about the integrity of these officers and their capacity to investigate into the matter. It was also observed by the Court that when the Court has reposed confidence into the officers of the State, the Court has no reason not to accept the names suggested by the DGP. It appears that thereafter, the investigation of C.R.No.187/08 of Sarkhej Police Station (New C.R.No.254/08 of Karanj Police Station) has been assigned to Shri Mohan Jha, one of the three nominated officer of the rank of IG and the investigation of complaint M-Case No.2/08 and 3/08 of Sarkhej Police Station is assigned to Shri B.D.Vaghela, officer of the rank of Deputy I.G., being one of the three nominated officer. As regards the complaint being C.R. No.213/08 with Sarkhej Police Station, in view of the order dated 23.01.2009 passed by this Court (Coram:D.H.Waghela,J.) in Sp. Cr.Application No.1821/08, the investigation has been transferred to CID(Crime) and the investigation at present is in charge of Shri P.B.Gondhiya who is an officer of IG Rank. As per the status report of complaint with Sarkhej Police Station vide M-Case No.2/08 and 3/08, the FSL report is received and as per the prima facie opinion expressed by B.D.Vaghela, DIG (Law and Order), who is the Investigating Officer, the dishonest intention is not found. Whereas, in connection with C.R.No. 254/08 of Karanj Police Station (old C.R.No.187/08 of Sarkhej Police Station), the investigation is at the verge of completion and FSL report is being awaited. So far as complaint vide C.R. No.213/08 of Sanand Police Station whose investigation is with Shri P.B. Gondhiya, officer of IG Rank working in CID (Crime), the criminality is found. However, as there is prohibitory order of the Supreme Court, the arrest has not been effected.
Had it been a case where the investigation was with the PI concerned of the Police Station and he was not acting at the first instance, the matter might stand on different footing, but in the present case, as recorded hereinabove, when this Court at the initial stage found that the investigation was not initiated, it had stepped into investigation and the investigation was ordered to be made and report was submitted. When the report was submitted, it was further found by the Court that the concerned IO has not properly investigated into the matter and therefore, as per the last order dated 04.09.2009, after passing stricture, the Court found it proper to call upon the Director General of Police to submit the names of the officers of high rank who may undertake the investigation in a fair manner. Thereafter, after hearing the petitioner concerned who is complainant, the investigation have been assigned to Shri Mohan Jha and Shri B.D. Vaghela of the concerned cases who are of the rank of DIG and IG from amongst those three nominated officers. Even in respect of other C.R.No.213/08 of Sanand Police Station, as this Court directed, the investigation has been assigned to CID crime and the officer of highest rank, Shri Gondhiya.
The learned counsel for the petitioner-complainant Mr.Oza did submit that he has no objection in continuing the investigation by Shri Gondhiya in C.R.No.213/08 of Sanand Police Station.
Whereas Mr. S.B.Vakil, learned counsel for the accused concerned-petitioners of Sp.Cr. Application No.2238/08, contended that Shri Gondhiya is investigating into the complaint in bias manner, therefore, the investigation be transferred to some other officer. In support of his submission, Mr.Vakil, learned counsel for the said petitioner-accused contended that as it was found that there was documentary evidence for showing the presence of the accused who is MLA, and his son who is also another accused, the complainant has improved complaint and has tried to wrongly implicate the accused by changing the timing and also by changing the accusation. He contended that the investigating officer instead of considering the said material, has only believed the complainant and has added certain sections for which no offence is committed, in his report to the learned Magistrate. He therefore submitted that this Court may exercise the power for transferring the investigation.
The pertinent aspect is that the investigation of C.R. No.213/08 of Sanand Police Station is complete and charge sheet has been filed with the concerned Magistrate with the additional report in addition to the charge. However, in view of the prohibitory orders of the Apex Court, the accused have not been arrested. Therefore, the said case would be required to be considered at the stage when the investigation is completed.
Further, as observed earlier, in the complaints which are assigned to Shri B.D.Vaghela, Investigating Officer as well as to Shri Mohan Jha, it was submitted by the learned counsel for Mr.Oza as well as Mr.Naik for the concerned complainant-petitioner that the same be assigned to CBI. It was contended by the learned counsel appearing for both the sides that since one of the accused is sitting MLA of ruling party, there will not be any proper investigation and the investigation may be conducted to side with and shield the said MLA. It was submitted that if CBI is assigned with the investigation, then only there will be proper investigation against the accused. The learned counsel for the petitioner in furtherance to their submission referred to the threat or the communication by one Kamlesh Tripathi of BJP with the concerned police officer at the relevant point of time who has recorded the same while seeking guidance from the Commissioner of Police. He therefore submitted that this supports the apprehension of the complainant petitioner that there will not be any proper investigation and the accused will not be booked. He alternatively submitted that in case if this Court finds that the investigation may not be assigned to CBI, the same may be assigned to a high ranked officer who have taken actions against their colleague officer of very high rank and Mr. Oza in his submission stated that under these circumstances, the investigation may be assigned to Shri Rajneesh Rai or Satish Varma or the officer of such type.
Whereas, the learned APP for the State submitted that the State has not resisted any point of time and all the while, acted for entrustment of the investigation as it was so desired by the Court. He submitted that he has no objection if the investigation is assigned to any other officer of the police department or working in the State Government. He contended that the petitioner has not been able to make out a case for transferring the investigation to central agency like CBI. He also submitted that when the alleged offence is pertaining to fabrication of documents and record like other economic crimes, CID(Crime) of the State has infrastructure and it has highest rank officers at present working (1) Shri K.D. Patadia, IG (2) Shri C.R. Parmar, I.G. Railways (3) Shri P.B. Gondhiya, I.G., and he submitted that the State has no objection if the investigation is assigned to any of such officer or in the manner as it may be found proper by this Court.
In light of the aforesaid fact situation, the contention of the respective petitioner is required to be examined. It is not the case where the police had acted properly upon the complaint and investigated into the matter well in time. The above referred various orders passed by this Court goes to show that at the initial stage, the concerned police officer of the concerned police station did not take immediate action, therefore, this Court had to pass the orders for investigation and submit the report. Thereafter also, as the Court was not satisfied, the investigation was assigned to higher officer of the rank of DCP and others and to submit the report and at that stage also, as the Court was not satisfied, the Director of Police was called upon to submit the names of three higher officer and the investigation thereafter have been assigned to the officer of the rank of Deputy I.G., and in one matter, as the order was passed by this Court in Special Cr. Application No.2176/09, the investigation of C.R.No.213/08 of Sanand Police Station is assigned to the officer of the rank of IG working in CID (Crime), Shri Gondhiya. The petitioner-complainant has no objection if Shri Gondhiya is continued with the investigation already assigned to him for C.R.No. 213/08 because, as per his report, the offence is committed. Whereas, when such an action is taken by the said officer, the accused has objected to the investigation and has filed petition for transfer of the investigation from Mr.Gondhiya. In respect of other two investigations, the contention of the complainant-petitioner is that the investigation be assigned to CBI or alternatively to some other officer of very high rank having good track record. The objection against the report by Shri B.D.Vaghela is on account of the fact that he has found that there is no dishonest intention and so far as the investigation by Shri Mohan Jha is concerned, the report of the FSL is being awaited.
Therefore, it appears that the complainant petitioner is changing the contention if the report of the IO is against, but is happy or has no objection when the report of investigation by the IO is in favour of the complainant-petitioner. Such a contention if entertained lightly, it would tinker the impartiality to be maintained by the IO for investigation in the matter. As observed earlier, the offender must be booked, but at the same time, the innocent person should not be harassed. Therefore, it is require for the investigating officer to impartially investigate into the matter and he would neither be required to side with the complainant nor would be required to side with the accused, but he has to conduct the investigation in fair and impartial manner.
It is true that one of the accused in the complaint is the sitting MLA of the ruling party, but except the material of conversation by one of the worker of BJP with the concerned PI at the relevant point of time, no material whatsoever has come on record to show that there is any interference in the investigation by any political person, may be of the ruling party. Therefore, merely because at one point of time the investigation was with the PI of the concerned Police Station and the conversation had taken place, would not be sufficient ground to record the conclusion that no topmost officer of the State would discharge his statutory duty of investigation into the matter properly in a fair and impartial manner merely because one MLA of the ruling party is one of the accused. Had the apprehension being genuine to the fullest extent, Shri P.B.Gondhiya, who is in charge of the investigation of C.R.No.213/08 of Sanand Police Station, would not have found the substance of accusation for commission of offence against the said accused who is MLA. Therefore, the allegation made by the petitioners for showing apprehension against all top Police Officers of the State, can be said as not genuine so as to make out a case for transferring the investigation to CBI on the premise that no top officer of the State would take action against the accused MLA or the other accused. At the same time, keeping in view the fact situation of the present case as referred to hereinabove and in specific that earlier, this Court had to step into the investigation because of the inaction on the part of the concerned police officer and thereafter, this Court had to direct to transfer of the investigation and further assigning the investigation to the officer of the high rank, who may be nominated by the Director General of Police, and after assignment of the investigation, it appears to the Court that the progress report/action report submitted uptil now is not to the fullest satisfaction of the Court inasmuch as there is no proper investigation on the aspects as to Whether there was any consideration passed in execution of the Power of Attorney.
Whether there was any handing over or parting of the possession based on the consideration, if any or the basis of such power of attorney or otherwise.
Whether there was any conscious knowledge of the author of the Power of Attorney.
Whether the action is taken for benefit of the author of the Power of Attorney or financial loss is caused to the author of the Power of Attorney.
The implication of the orders passed for pursuing the rights in the civil proceedings.
Whether there is any change in the statement of the complainant, and if yes, whether there is any sufficient and reliable explanation for such purpose or not, etc. In view of the aforesaid, it does appear that the investigation deserves to be transferred, but to the other ranked officer working in the CID (Crime) of the State, but not to CBI. Further, to streamline the investigation, the directions for supervision of the investigation by Director General Director General of Police would be required to ensure that the real offenders are booked and the innocent persons are not harassed. The contention of accused for transferring investigation of C.R.No.213/08 of Sanand Police Station cannot be accepted because the investigation came to be assigned to Shri Gondhiya, an officer of I.G. rank working in C.I.D.(Crime) because of earlier orders dated 23.01.2009 passed by this Court in Special Cr.Application No.1821/08 and no material has come on record to show the substance in the allegation of bias. The defence of alibi or improvement in the say of the complainant cannot be canvassed as a valid basis of bias, since accused is to have all opportunity to defend the case. In any case, such contention can be considered only to streamline the investigation but not for transferring the investigation which is already with high rank officer of CID (Crime).
Under these circumstances, it appears to the Court that in order to see that a faith is instilled in the investigating agency of the State that the investigation is being conducted in a fair and impartial manner, the investigation be assigned to the officer of the high rank who are working in CID (Crime) well versed with the commission of economic offences. In all the present cases, the allegation is for fabrication of certain record of Power of Attorney and others and to grab lands by fabrication of the record at the different authorities, it would be just and proper if the investigation is assigned to high rank officer working at the rank of CID crime of the State. It is true that Shri P.B. Gondhiya, is one of the officer of the IG rank, working in CID (Crime) and he has investigated into the complaint and there is no satisfactory material available on record to transfer the investigation from him, but such officer will have to undertake further investigation keeping in view the observations made hereinabove on the various aspects which may touch accusation made in the complaint/FIR concerned. The investigation of other cases of M-Case No.3/09 registered with Sarkhej Police Station is directed to be assigned to Shri K.I. Patadia, IG working with CID (Crime) and the investigation concerning to M-Case Nos.2/08 and 3/08 and C.R. No.187/08 (New C.R.No.254/08) is assigned to Shri C.R. Parmar, IG, Railways working with CID (Crime). It is further observed and directed that they shall report about the progress of the investigation from time to time to the Director General of Police and shall not be deterred by either complainant or by the accused and shall conduct the investigation in a fair and impartial manner so that the offenders are booked and the innocent persons are not harassed. The Director General of Police shall monitor and supervise the investigation and shall also ensure that the investigation is conducted in a fair and impartial manner so that the offenders are booked and the innocent persons are not harassed. After the report is submitted, it would also be open to the concerned Magistrate to exercise the power in light of the observations made in the present order for acceptance of the report or for further investigation and/or for taking cognizance of the offences after following the procedure in accordance with law.
It is clarified that all the actions of the IO concerned shall be subject to the observance of the orders of the Apex Court, as passed and as may be passed in the concerned proceedings for the concerned complaint/FIR.
In the result, the prayer of the petitioners for transferring the investigation to CBI is not granted, but is accepted only to the extent of transferring the investigation to CID (Crime) in the manner as observed hereinabove. The Director General of Police shall pass the consequential order to give the effect to the present judgement for transferring the investigation forthwith. Special Criminal Application Nos. 1855/08, 2259/03, 1811/08, 2176/09 are allowed to the aforesaid extent only. Rule made absolutely accordingly to the aforesaid extent.
Subject to the aforesaid observations and directions of further investigation in light of the observations and supervision thereof of Director General of Police, Special Cr.Application No.2238/09 shall stand disposed of accordingly. Subject to the aforesaid direction, Rule discharged in Special Criminal Application No. 2238/09.
(JAYANT PATEL, J.) *bjoy Top