Gujarat High Court
Dhanabhai Bhagvanbhai Bharvad & 9 vs State Of Gujarat & 2 on 6 November, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/6651/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 6651 of 2015
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DHANABHAI BHAGVANBHAI BHARVAD & 9....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1 - 10
MS HB PUNANI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/11/2015
ORAL ORDER
1. By this application under Article 226 of the Constitution of India, the petitioners-original accused persons have prayed for the following reliefs:
"9(a) To allow this petition;
9(b) To issue appropriate writ, order or direction directing the concerned respondent No.3 herein to obtain necessary evidence including CCTV footage as indicated by the present petitioner in the representation at Annexure-C and also further be pleased to direct concerned investigating officer to investigate the plea of alibi raised by the present petitioners impartially as per the law;
9(c) To issue appropriate writ, order or direction directing the concerned authority to take action as per the representation of the petitioners addressed to the concerned authority at Annexure-C;
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R/SCR.A/6651/2015 ORDER
9(d) To direct the investigating agency to collect the relevant material such as mobile phone/tower records etc., which would clearly prove that the petitioners were not present at the place of offence as alleged in the FIR;
9(e) To direct the investigating agency to conduct Narco tests, lie detector tests and other tests on the petitioners so that the investigation can be carried out in a fair and transparent manner.
9(f) To transfer the investigation of the present FIR to any other independent and unconnected agency, preferably CID (Crime) or CBI.
9(g) Pending admission, hearing and final disposal of the present petition, to direct the concerned respondent to submit appropriate report before this Hon'ble Court with regard to investigation carried out so far in connection with the representations of the petitioner at Annexure-C;
9(h) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court."
2. In the facts and circumstances of the case and having regard to the material on record, the Superintendent of Police, Surendranagar may look into the representation preferred by the petitioner which is at page-21, Annexure-C of this petition and take appropriate decision at the earliest in accordance with law. While considering the representation, the Superintendent of Police, Surendranagar shall keep in mind the observations made by this Court in case of Chandan Panalal Jaiswal v. State of Gujarat reported in 2005 (3) GCD 2406, more particularly para-18 of the said decision which reads as under:
" 18. The plea of alibi if is being taken by the accused, then is considered to be a dangerous plea of defence. Even then, in the present case, the petitioners Page 2 of 3 HC-NIC Page 2 of 3 Created On Sun Nov 08 02:52:27 IST 2015 R/SCR.A/6651/2015 ORDER have unfolded their line of defence and, therefore, in such a case struggle to bring truth out could have been started much earlier from the police personnel of the lowest rank or the person so authorised to investigate by the Magistrate. It would be wrong to presume that all the persons named by the petitioners during their interrogation, would support the petitioners only because on one hand, the prosecution says that some of the hotel staff members have not supported the say of the petitioners. So, on the ground or pretext that these witnesses shall not support the prosecution, the investigating agency can not ignore to examine them during investigation. If their say is not supporting the prosecution, their statements may not be made a part of chargesheet. As per legal requirement, investigation must be fair and to deal with the accused "fairly". The word "fairly" should not be construed synonymous to the word "truly". The grievance made before this Court is that fairness is not shown as the investigating agency intends to see that truth is not peeping out. In para-21 of the above-cited decision in the case of Ramlal Narang (supra), it is observed that "when it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual." The Court should also think of a person accused having minimum means."
3. With this, present application is disposed of. I clarify that I have otherwise not gone into the merits of the matter.
(J.B.PARDIWALA, J.) ila Page 3 of 3 HC-NIC Page 3 of 3 Created On Sun Nov 08 02:52:27 IST 2015