Gujarat High Court
Karanbhai Lakhmanbhai Vagh (Ahir) vs State Of Gujarat on 11 September, 2018
Author: A.J.Desai
Bench: A.J.Desai
R/SCR.A/3818/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO.3818 of 2018
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KARANBHAI LAKHMANBHAI VAGH (AHIR)
Versus
STATE OF GUJARAT
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Appearance :
MR PM LAKHANI for the PETITIONER.
MRS R P LAKHANI for the PETITIONER.
MR K S CHANDRANI for the RESPONDENT No.2.
MS MAITHILI D. MEHTA, APP for the RESPONDENT No.1.
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CORAM : HONOURABLE MR.JUSTICE A.J.DESAI
Date : 11/09/2018
ORAL ORDER
1. Rule. Learned Additional Public Prosecutor waives service of rule on behalf of respondent No.1 and Mr. K.S. Chandrani waives service of rule on behalf of respondent No.2. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal today itself.
2. By way of the present petition under Articles 226 and 227 of the Constitution of India, the following prayers have been made :-
"(a) YOUR LORDSHIPS be pleased to admit this petition;
(b) YOUR LORDSHIPS be pleased to allow this petition by way of issuing an appropriate writ, order or direction quashing and setting aside the impugned order dated 21.4.2018 passed by learned Ad-hoc Principal Civil Judge and Judicial Magistrate First Class, Page 1 of 5 R/SCR.A/3818/2018 ORDER Jafrabad, Dist. Amreli, upon the report of the circle Police Inspector dated 14.3.2018 at Exh.15 in connection with C.R. No.I-02 of 2018 registered with Jafrabad Police Station, Dist. Amreli for the offence punishable under Sections 395, 397, 506 (2) of Indian Penal Code and Section 135 of the GP Act;
(c) YOUR LORDSHIPS be pleased to issue an appropriate writ, order or direction quashing the impugned FIR and all subsequent proceedings qua the petitioner in respect of alleged offence registered with Jafrabad Police Station, Dist. Amreli for the offence punishable under Sections 395, 397, 506 (2) of Indian Penal Code and Section 135 of the GP Act;
(d) YOUR LORDSHIPS be pleased to grant interim / ad interim relief by way of granting stay upon the execution, implementation and operation of the impugned order dated 21.4.2018 passed by learned Ad-hoc Principal Civil Judge and Judicial Magistrate First Class, Jafrabad, Dist. Amreli, upon the report of the circle Police Inspector dated 14.3.2018 at Exh.15 in connection with C.R. No.I-02 of 2018 registered with Jafrabad Police Station, Dist. Amreli for the offence punishable under Sections 395, 397, 506 (2) of Indian Penal Code and Section 135 of the GP Act;"
3. At the outset, learned advocate Mr. P.M. Lakhani appearing for the petitioner does not press prayer (c) at this stage. However, he has requested to pass appropriate orders as far as the direction issued by the learned Magistrate by the impugned order Page 2 of 5 R/SCR.A/3818/2018 ORDER to file charge-sheet against the petitioner which is contrary to the provisions of law and ratio laid down by the Hon'ble Supreme Court.
4. The short facts arise from the record are as under :-
5. That an FIR came to be lodged on 18.1.2018 with Jafrabad Police Station of Amreli District for the offences punishable under Sections 397, 395 and 506 (2) of the Indian Penal Code as well as under Section 135 of the Gujarat Police Act against several persons including the present petitioner. After completion of investigation, charge-sheet came to be filed against other 4 accused persons except the present petitioner. The report was submitted by the Investigating Officer with regard to the petitioner that no offence was made out against the petitioner. The report was submitted at Exh.15 in Criminal Case No.79 of 2018 in the Court of learned Civil Judge and JMFC, Jafrabad. The learned Magistrate after having gone through the papers of investigation found the report unacceptable and passed the impugned order. However, the learned Magistrate has directed the Police Officer to file additional charge-sheet against the petitioner within a period of 15 days from the date of the order.
6. Hence this petition.
7. Mr. P.M. Lakhani, learned advocate appearing for the petitioner would submit that the learned Magistrate has committed an error in passing the impugned order by which the Police Officer has been directed to submit charge-sheet. He would further submit that Magistrate can only direct further investigation or himself can take cognizance of the offence if he is not in agreement Page 3 of 5 R/SCR.A/3818/2018 ORDER with the report submitted by the Investigating Agency. He, therefore, would submit that part of the impugned order may be quashed and set aside. In support of his submissions, he has relied upon the decision of the Hon'ble Supreme Court in the case of Ram Naresh Prasad v. State of Jharkhand and others, (2009) 11 SCC 299.
8. On the other hand, Mr. K. S. Chandrani, learned advocate appearing for the respondent No.2 would submit that it is a Warrant Triable offence and, therefore, to secure the presence of the petitioner, the learned Magistrate can issue warrant against the petitioner. He, therefore, would submit that appropriate orders may be passed.
9. I have heard learned advocates appearing for the respective parties and perused the impugned order. It appears from the impugned order that after considering the material, the learned Magistrate did not accept the report submitted by the Investigating Officer in favour of the petitioner. However, the learned Magistrate directed the Investigating Officer to file charge- sheet against the petitioner. The said direction is contrary to law.
10. In the case of Ram Naresh Prasad v. State of Jharkhand and others (Supra), the Hon'ble Supreme Court has held that if the Court is not accepting the report, he may either issue direction for further investigation or may himself take cognizance of the offence. However, Magistrate cannot direct filing of charge-sheet.
11. In view of the above proposition of law, I am of the opinion that the present petition requires consideration.
Page 4 of 5R/SCR.A/3818/2018 ORDER Accordingly, the present petition stands allowed. The impugned
order dated 21.4.2018 passed by learned Ad-hoc Principal Civil Judge and Judicial Magistrate First Class, Jafrabad, Dist. Amreli, upon the report of the circle Police Inspector dated 14.3.2018 at Exh.15 in Criminal Case No.79 of 2018 is hereby quashed and set aside qua the direction issued with regard to filing of charge-sheet against the petitioner only. The learned Magistrate shall pass appropriate orders in the matter forthwith. Rule is made absolute to the above extent.
It would be open for the parties to take all contentions before the learned Trial Court.
Direct service is permitted.
(A.J.DESAI, J) SAVARIYA Page 5 of 5