Gujarat High Court
Chintan Kantilal Patel vs State
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
CHINTAN KANTILAL PATEL....Applicant(s)V/SSTATE OF GUJARAT R/SCR.A/3021/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 3021 of 2012 ======================================================= CHINTAN KANTILAL PATEL....Applicant(s) Versus STATE OF GUJARAT & 4....Respondent(s) ======================================================= Appearance: MR BHARGAV HASURKAR for the Applicant(s) No. 1 MR RC KODEKAR APP for the Respondent(s) No. 1 ======================================================= CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 11/02/2013 ORAL ORDER
Present petition has been filed by the petitioner under Articles 14 and 226 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure, 1973 seeking mandatory direction for directing the investigation of the FIR being C.R.No.I-19/2012 registered with Varnama Police Station, District : Vadodara to CBI on the grounds stated in the memo of present petition.
Prayer in the petition reads as under :-
(A) YOUR LORDSHIP be pleased to grant this petition.
(B) YOUR LORDSHIP be pleased to transfer investigation of complaint made by the petitioner vide FIR No. I.C.R. 19 of 2012 registered with Varnama Police Station, District : Vadodara, to C.B.I. where the investigation is monitored by a specially assigned officer appointed by this Hon ble Court.
(C) YOUR LORDSHIP be pleased to direct Respondents to take the immediate appropriate action of arrest of accused without delay and surrender them to the new investigation agency as per the directions given by this Hon ble court pending admission final hearing and disposal of this petition.
(D) Any other just and proper order which the Hon ble deems fit may please be passed in interest of justice.
First paragraph of the present petition reads as under :-
This petition is arising as a result of continuing inaction on the part of state investigation agency to properly investigate offences registered under F.I.R. Having ICR No. 19 of 2012 (hereinafter referred to as the F.I.R. for short) registered with Varnama Police Station, District Vadodara, for offences under Sections 406, 409, 468, 471, 120-B and 114 of the Indian Penal Code. A copy of the said FIR is Annexed to this petition as ANNEXURE-A. Further chargesheet has been filed in this matter and a copy of Chargesheet Counter is annexed herewith as ANNEXURE-B to this petition.
As stated in the facts of the case, that the complaint with the Judicial Magistrate was filed and after the issuance of notice, it has been registered as First Information Report. It refers to the alleged misappropriation of money in respect of the crops compensation for the acquisition of land acquired by the Dedicated Freight Corridor Corporation of India Ltd. (DFCCIL). It is alleged that false panchnama has been made at the local level to justify the existence of such crops by Sarpanch and Talati. The petitioner is stated to have been approached by the villagers and the petitioner is said to have taken up their cause and voice their grievance by way of present petition.
Learned counsel, Shri Bhargav Hasurkar for the petitioner has made submissions that the Sarpanch and Talati in collusion have prepared false panchnamas for the compensation of the crops, which has not been received by the village people. He has therefore submitted that the cause has been taken up. He referred to various papers including some statements to submit that the panchnama is not prepared. He has also referred to valuation report of the Ex. Forest Officer produced at Page No.99. He has also referred to the report of the Land Acquisition Officer, Shri Rameshbhai Baria. Learned counsel, Shri Hasurkar has therefore submitted that the complaint is made by public spirited person and it would be covered under Section 2(d) of the Code of Criminal Procedure, 1973 and, therefore, as the investigation has not proceeded properly, the present petition has been filed for the aforesaid prayers.
Though the submissions have been made, first aspect which is required to be addressed is that learned counsel, Shri Hasurkar was specifically and pointedly asked as to whether it is a public interest litigation, which he could have filed as a public spirited person and having argued the matter, when the Court was not inclined, he made oral request that it may be treated as PIL. Therefore, this Court has referred the matter to the Hon ble the Chief Justice and it has been referred back to this bench considering the merits of the case.
Therefore admittedly, the petitioner is not a person, whose land is acquired by the DFCCIL but has been making claim on behalf of others for compensation in respect of the crops for the acquired land. He has stated that he is filing this petition as a public spirited person for the transfer of investigation to CBI (without any justification). In fact admittedly, the complaint has been registered as stated above after the notice has been issued by the Court of Magistrate and chargesheet has also been filed, however, the submissions have been made that the investigation is not proper. As could be seen from the record as well as the statement of the Land Acquisition Officer, on the land which is acquired for the railway at the instance of the Union Government, work has been entrusted by DFCCIL to one Srishti Enterprises. The said DFCCIL and Srishti Enterprises have entered into an agreement as per the Railway Amendment Act, 2008 and entire work has been carried out pursuant to this agreement and if there is any breach of the agreement or the condition, DFCCIL which is Central Government agency or the authority could take appropriate steps. The DFCCIL is also subject to supervision by the higher Railway Authorities. The local officer of the railways have only assisted the DFCCIL and Srishti Enterprises in verification of the award or loss of crop. It is an admitted fact that all these papers are subject to scrutiny by DFCCIL or the officers of DFCCIL would be personally verifying these documents and the payment will be made by cheque and names of such officers are also mentioned. It is specifically stated that the surveyor was present and photography has been made for the receipt of the cheque by the farmer. It is also stated that as per the National Rehabilitation & Re-settlement Policy of 2007 under the Rural Development Ministry of the Government of India, the benefit is sought to be given to the farmers, which has also been forming a part of the investigation papers. It is in these circumstances, how the petitioner as a public spirited and enlighten person gets any authority to meddle with such matters. The Hon ble Apex Court has made observation specifically observing that such a tendency for seeking direction for the transfer of investigation to CBI should not be readily accepted.
Moreover, once the investigation has been made; the chargesheet has been filed by the authority and the matter is lying with the Court of Magistrate (judicial authority), it could be examined in accordance with law and there is no justification for interfering in the judicial proceeding, which is pending. One fails to understand how and on what basis, it could be said by the petitioner that such petition would be maintainable or any complaint, which has been investigated and pending before the competent court should be brushed aside. If such a prayer is granted, it would amount to defeating from the procedure provided under the law like Code of Criminal Procedure, 1973 without any justification or the reason. The Hon ble Apex Court has made observation and laid down broad guidelines with regard to the procedure, which is required to be followed. It is well accepted that inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 should not be exercised readily when there is specific procedure under the Code of Criminal Procedure. Therefore, such inherent jurisdiction has to be exercised with care and circumspection as and by way of acceptance when there is a miscarriage of justice. The Hon ble Apex Court in a judgment in case of Raj Kapoor & Ors. Vs. State & Ors., reported in (1980) 1 SCC 43 has made the observations. A general principle pervades this branch of law when a specific provision is made. Easy resort to inherent power is not right except under compelling circumstances, not that there is absence of jurisdiction but that inherent power should not invade area set apart for specific power under the same Code. The scope of exercise of such discretion under Section 482 of the Code of Criminal Procedure, 1973 has also been well settled by catena of judicial pronouncements. Similar views have been expressed in catena of judicial pronouncements including the judgment of the Hon ble Apex Court in case of Popular Muthiah Vs. State Represented by Inspector of Police, reported in (2006) 7 SCC 296.
Therefore, the powers under Section 482 of the Code of Criminal Procedure, 1973 are of very wide amplitude which require great caution in its exercise. It has been repeatedly observed that no hard and fast rule can be laid down for exercise of extraordinary jurisdiction. In other words, it is not a lack of jurisdiction, but the propriety for exercise of such power when specific provision is made in the statute or the procedural law like Code of Criminal Procedure, 1973 or Civil Procedure Code.
Similarly there is no need for exercising any extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India when there is specific procedure under the Code of Criminal Procedure, 1973 to be followed after the complaint has been registered. Therefore, exercise of extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India would also not be justified.
Reliance placed upon the judgments, which have been quoted and referred to by learned counsel, Shri Hasurkar with regard to the transfer of investigation to CBI clearly suggest that it was in a different facts of the case, particularly, when State machinery were alleged to have been involved violating human rights, the facts of the present case are totally different. Therefore, the judgments, upon which reliance is placed, will not be applicable in the facts of the present case.
A useful reference can be made to the observation made by the Hon'ble Apex Court in a judgment in case of in case of State of Punjab Vs. Davinder Pal Singh Bhullar & Ors., reported AIR 2012 SC 364, wherein it has been observed as under :-
Thus, in view of the above, it is evident that a constitutional court can direct the CBI to investigate into the case provided the court after examining the allegations in the complaint reaches a conclusion that the complainant could make out prima facie, a case against the accused. However, the person against whom the investigation is sought, is to be impleaded as a party and must be given a reasonable opportunity of being heard. CBI cannot be directed to have a roving inquiry as to whether a person was involved in the alleged unlawful activities. The court can direct CBI investigation only in exceptional circumstances where the court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of the complainant, and it is necessary so to do in order to do complete justice and make the investigation credible.
Therefore, having regard to the aforesaid aspects, particularly, when it has been observed by the Hon ble Apex Court in a judgment in case of State of Punjab Vs. Davinder Pal Singh Bhullar (supra) that no roving inquiry may be made without joining persons against whom the investigation is sought and no such specific allegations or averments are also to be found in the petition or in the complaint, such prayer cannot be entertained.
Further, the Hon ble Apex Court has also made observation with regard to the circumstances, where such direction could be issued. Further it is also required to be noted that the Hon ble Apex Court has in catena of judicial pronouncement made observations with regard to the maintainability of the writ petition for such directions when the FIR has been registered and the modality has to be protected as provided under the Code of Criminal Procedure, 1973. In the facts of the case admittedly the FIR has been registered and, therefore, writ petition would not be maintainable. The Hon ble Apex Court in a judgment in case of Gangadhar Janardan Mhatre Vs. State of Maharashtra & Ors., reported in (2004) 7 SCC 768 has made observation in para no.13 with regard to the procedure to be followed and once the Magistrate has taken cognizance, normally writ petition is not entertained. Further, the Hon ble Apex Court in a judgment in case of Sakiri Vasu Vs. State of U.P. & Ors., reported in 2008 (2) GLH 269 has made observations with regard to the alternative remedy under Section 154 of the Code of Criminal Procedure, 1973. In the said judgment, it is observed that It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.
Therefore, when the statute provides for a particular procedure with modalities, it could not be subterfuge by recourse to such extra ordinary jurisdiction to writ petition or petition under Articles 226 and 227 of the Constitution of India without any justification.
Therefore having regard to the aforesaid discussion as well as the fact that even if the complaint could be filed, it is not necessarily justified the filing of the petition by the petitioner for and on behalf of others when it is not a public interest litigation. Admittedly the complaint has been filed, which has been registered as First Information Report and, therefore, filing of the present petition by the petitioner, who is not having any justification, cannot be entertained.
Therefore, the present petition deserves to be dismissed and accordingly stands dismissed.
Sd/-
(RAJESH H.SHUKLA, J.) Gautam Page 13 of 13