Gujarat High Court
Balram vs State on 29 December, 2010
Author: J.C.Upadhyaya
Bench: J.C.Upadhyaya
SCR.A/1770/2011 8/ 8 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1770 of 2011 ========================================================= BALRAM BHARATBHAI PADHIYAR - Applicant(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR VIRAT G POPAT for Applicant(s) : 1, MR.K.P.RAVAL, ADDITIONAL PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 03/02/2012 ORAL ORDER
When the matter came up for hearing, Mr.Popat, learned advocate for the petitioner pointed out that in the F.I.R. lodged by the petitioner, in all four accused persons were arraigned in connection with the offences alleged in the F.I.R.
It is submitted that since after the lodgment of F.I.R., no action was taken by the Investigating Police Officer to complete the investigation, the petitioner-original complainant was constrained to file Special Criminal Application No.1818 of 2010 (Annexure-B) and pursuant to the order dated 29.12.2010, this Court (Coram:Hon'ble Mr.Justice M.R.Shah) directed the investigating police agency to submit appropriate report / charge-sheet at the earliest, but not later then 20.02.2011, reserving the liberty of the petitioner herein to move this Court if the said order is not complied with.
Mr.Popat, learned advocate for the applicant submitted that thereafter, the Investigating Police Officer had filed charge-sheet before the concerned Court on 21.07.2011 against the accused no.1 and remaining three accused persons i.e. accused nos. 2, 3 and 4 named in the F.I.R., were shown as witness nos. 17, 18 and 19 and no charge-sheet or any closer report came to be filed before the Magistrate qua them.
Mr.Popat, learned advocate for the petitioner drew my attention to the affidavit filed by the Investigating Police Officer in Sessions Court, Palanpur in connection with the anticipatory bail application of all the accused persons named in the F.I.R. and in the affidavit, it was clearly opined by the Investigating Police Officer that all these four accused persons have committed the offence. The said affidavit is filed on 07.03.2011.
Mr.Popat, learned advocate for the petitioner drew my attention to proviso (b) of Section 157 read with Sub-section (2) of Section 157 read with Section 158 of Code of Criminal Procedure (herein after referred to as "Cr.P.C") and submitted that in case the Investigating Police Officer comes to the conclusion that there is no sufficient ground for filing charge-sheet, then he shall forthwith notify to the informant the fact that he will not investigate the case or post it to be investigated. Section 158 of the Cr.P.C states that every report under Section 157 of the Cr.P.C is required to be forwarded to the concerned Magistrate directly through superior officer.
It is submitted that while deleting of names of original accused nos. 2, 3 and 4, no such report as contemplated above has been forwarded to the magistrate along with the charge-sheet qua accused no.1. My attention was drawn to the case of Rameshbhai Vora Vs. State of Gujarat, reported in 2010 (2) G.L.H. 588 and more particularly, observation made in Para-20 wherein this Court in no uncertain term observed as under:-
"Thus the plain reading of Section 157, 158 and 159 go to show that the officer in charge of the police station has discretion to start the instigation upon information which appears to him not to be of serous nature or not to start investigation at all in information where he finds no substance ground for entering into investigation. But when he form such an opinion under Section 157(b) is under obligation to intimate the same to the informant that he would not investigate the case or cause it to be investigated the Police Officer at this stage informed the informant if any about his opinion of there being no sufficient ground for entering into investigation, and such information to the informant may give him goad him to avail the remedy if he is so advised. He has right to move appropriate authority is to be read into it. One more safe guard is provided in the form of submitting such report to the Magistrate through superior police who has to apply his mind to such a report and issue instruction and transmit it onwards to the Magistrate concerned and by Section 159 the Magistrate is fully empowered on receiving such report to direct investigation or if he thinks fit to dispute Magistrate to proceed and hold preliminary inquiry or otherwise dispose of the case in a manner provided in this Code."
Mr.Popat, learned advocate for the applicant further drew my attention to the order dated 12.07.2010, passed by this Court (Coram:Akil Kureshi, J.) in Criminal Misc. Application No.7647 of 2010 and submitted that all the four accused persons filed aforesaid application under Section 482 of the Cr.P.C for quashing the F.I.R. and the said application was not pressed and said application stands disposed of accordingly.
In the above view of the matter, Mr.Popat, learned advocate for the applicant drew my attention to the amended prayer 8(aa) and 8(bb) and submitted that appropriate direction may be issued.
Mr.Raval, learned Additional Public Prosecutor for the respondent-State submitted that there is no dispute that, in all, there were four accused persons and the charge-sheet came to be filed only against one accused and remaining three accused persons are shown as witnesses, but before filing charge-sheet the Investigating Police Officer informed the informant as contemplated under Section 173(2) of the Cr.P.C about the fact that the charge-sheet is filed against the accused no.1. However, it is submitted that along with the charge-sheet, no report came to be forwarded by the Investigating Police Officer through his superior Police Officer stating the grounds as to why the criminal case came to be closed qua accused nos. 2, 3 and 4.
It is, therefore, submitted that this procedure can be now undertaken and appropriate charge-sheet / closer report qua the original accused nos. 2, 3 and 4 can be filed in this matter and on this ground the whole charge-sheet may not be held to be illegal.
I have given my full consideration to the issue involved in this matter. I have gone through relevant provisions of the Cr.P.C referred to above as well as above referred observation made by this Court in case of Rameshbhai Vora (Supra). I have also taken into consideration the fact that all the four accused persons moved this Court for quashing of the F.I.R., under Section 482 of the Cr.P.C and the said application ultimately came to be withdrawn. It is further clear that all the four accused persons filed application for anticipatory bail before the Sessions Court, Palanpur and in the said application the Investigating Police Officer filed his affidavit and on oath, it has been stated that all these four accused persons are involved in the offeces alleged. It further transpires that after lodgment of the F.I.R., since no immediate action was taken, the petitioner-complainant had to move this Court for appropriate direction and this Court also issue appropriate direction to the Investigating Police Officer. There is also no dispute that though the charge-sheet came to be filed before the concerned Court, but the same filed qua original accused no.1, but not qua original accused nos. 2, 3 and 4. Thus, it is clear that by filing the charge-sheet, though original accused nos. 2, 3 and 4 named in the F.I.R. came to be deleted out as accused persons, no report as contemplated under Section 157 of the Cr.P.C came to be forwarded along with the charge-sheet as provided under Section 158 of the Cr.P.C to the concerned Magistrate. If such report would have been forwarded to the magistrate stating the grounds as to why the original accused nos. 2, 3 and 4 came to be deleted out as accused persons in this case, the original complainant would have obtain appropriate remedy to ventilate his grievance. However, nothing whatsoever was done. Now, if the grievance ventilated by the petitioner-complainant is not remedied at this stage, then no other legal option is available under the Cr.P.C to the petitioner to ventilate his grievance till the conclusion of trial.
In the above view of the matter, without entering into the merits of the case, this Court is of the opinion that appropriate formalities which has not been undertaken as yet, is required to be now completed.
Mr.Raval, learned Additional Public Prosecutor for the respondent-State submitted that the concerned District Superintendent of Police, District:Banaskantha may be directed to supervise the investigation, now to be carried out qua original accused nos. 2, 3 and 4 by the Investigating Police Officer and for that, at least, time of one month may be granted and at the end of such period, supplementary charge-sheet / appropriate report qua original accused nos. 2, 3 and 4 shall be filed before the concerned Trial Court.
For the foregoing reasons, the concerned Investigating Police Officer is directed to investigate the matter and at the end of investigation shall file supplementary charge-sheet / appropriate report, qua the original accused nos. 2, 3 and 4, on or before 3rd March,2012.
It is hereby further directed that further investigation and future course of action as directed, which is required to be undertaken by the concerned Investigating Police Officer shall be under the direct supervision of the concerned District Superintend of Police, Dist:Banaskantha. Accordingly, at this stage, this application stands disposed of, reserving the liberty of both the parties to move this Court in case of any difficulty. Direct service is permitted.
(J.C.UPADHYAYA,J.) Girish