Jetunben W/O Rafiqbhai Salot vs State Of Gujarat & 3 on 8 February, 2017

[Cites 21, Cited by 0]

Gujarat High Court

Jetunben W/O Rafiqbhai Salot vs State Of Gujarat & 3 on 8 February, 2017

HC-NIC Page 1 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:

"7(A) Your Lordships may be pleased to admit and allow the present application.

(B) Your Lordships be pleased to direct registration of fresh First Information Report by recording correct version of the incident as narrated by the petitioner and further direct investigation through State C.I.D. Crime and/or Central Bureau of Investigation.

(C) Your Lordships be pleased to direct incorporation of P.I. Nagori, Shri A.D. Patelia, Shri Khachar and other police personnel present there at the time of incident as accused in the fresh F.I.R. to be registered in the name of petitioner as complainant / informant in the form of complaint.

(D) Your Lordships be pleased to stay further investigation of the present FIR bearing I C.R. No.129/2016 lodged before Kodinar Police Station till conclusion of investigation of the complaint as per correct version of the petitioner.

(E) Pending the hearing and final disposal of this petition, Your Lordships be pleased to stay further investigation of FIR bearing I C.R. No.129/2016 lodged before Kodinar Police Station.

(F) Pending the hearing and final disposal of this petition, Your Lordships be pleased to direct immediate transfer of P.I. Nagori, Shri A.d.

Patelia and Shri Khachar from Kodinar Police Station out of district Gir Somnath;

(G) Pending the hearing and final disposal of this petition, Your Lordships be pleased to direct registration of fresh First Information report by recording correct version of the incident as narrated by the petitioner and further direct investigation through State C.I.D. Crime and/or Central Bureau of Investigation;

(H) Pending the hearing and final disposal of this petition, Your Lordships be pleased to direct respondent no.4 to submit a report before this Honourable Court pertaining to the role of the investigating officer and other police officers in connection with the incident dated 9.10.2016 registered as FIR bearing I C.R. No.129/2016 at Kodinar Police Station, or in the alternative, direct the new investigating agency to investigate the role of investigating officer and other police officers in connection with the said incident dated 9.10.2016;




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(I) Your Lordships may be pleased to pass any other and further orders as may be deemed fit and proper in the interest of justice."

2 The case of the writ applicant, in her own words, is as under:

"The petitioner states that on 9.10.2016 at about 2:00 pm, the petitioner was doing her household work (washing clothes) at her residence. At that time there was no adult male member present in the family and the petitioner's motherinlaw, who is paralysed and two children aged 2 years and 4 years were at home. The petitioner heart some miscreants loudly uttering abusive words outside her residence. In order to ascertain the situation, the petitioner peeped from the window and learnt that so many people were coming towards her residence with dangerous weapons in their hands. Before the petitioner could sense danger, the petitioner saw that one Shri Dinu Bogha Solanki was leading the people to her residence shouting abusive words against her husband.

The said Dinu Bogha Solanki was accompanied by Bharat Jetha, Rohit Gohil, Driver of Dinu Solanki, Ranjitbhai and his brother Mansinh, Lalo and other 1415 persons while approaching her residence. They shouted about her husband and while doing so, they broke open the entrance (Verandah) gate of her residence and entered inside the house. Someone from outside broke the glass of the window where the petitioner's children were sleeping and thus the petitioner immediately took her children and motherinlaw towards the terrace. The said miscreants accompanied with the said Dinu Bogha Solanki kicked the front gate and broke it and entered the hall where they broke and bed and put the mattress on fire. They threw away the television set out of hall towards verandah and broke it. They even Page 3 of 25 HC-NIC Page 3 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT destroyed the windows and glasses with pipes, sword (talwar) and baseball sticks. Then they went out where the vehicles were parked and destroyed the two wheelers and one Maruti Swift Car. They broke the glasses, dented the body of the car and scratched the car and destroyed it completely. The petitioner saw that the police officers were present while the aforenamed persons along with few other persons were destroying her belongings (2 wheelers and car) and heard abusive words against her husband and also threatened her husband of dire consequences. Thereafter, Dinu Solanki and other miscreants accompanying him as well as the police officers lfeft the place. The petitioner saw that Police Inspector, Shri Nagori, Shri A.D. Patelia, Shri Khachar and other police officers were present when the aforesaid incident occurred at her residence.

After some time, petitioner's brotherinlaw (Sameer) came and consoled the family members and then the petitioner dialed 100 number for police assistance at about 3:15 pm. The police personnel did not visit the petitioner's place until evening. At about 7:00 pm, the police officers namely, Shri A.D. Patelia, Shri Khachar and some other police personnel came to petitioner's place and told her that they will sent someone for recording her complaint. On next date, i.e. on 10.10.2016 at about 11:00 am, Shri Khachar along with few other police personnel visited the petitioner's place and recorded the complaint of the petitioner. However, the date was mentioned as 0.10.2016 atop the complaint of the petitioner, where she had put her thumb impression.

The incident that occurred on 9.10.2016 incidentally became viral on social media and all major news channels had shown video Page 4 of 25 HC-NIC Page 4 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT footage of the incident on 10.10.2016. The petitioner has recording of video footage in a compact disk as well as photographs, which are annexed hereto and marked AnnexureC collectively.

On 11.10.2016, the petitioner made an application for supply of copy of complaint given by petitioner, panchnama and First Information report as registered by the police authorities. The said documents are not supplied to the petitioner till date.

On 14.10.2016, the petitioner could get the certified copy of the FIR through her advocate from the Court of Judicial Magistrate First Class at Kodinar. The petitioner then learnt that the FIR is not as per the true version of the complaint given by the petitioner and police authorities have modified, changed and concocted the incident. In fact the names of certain powerful persons have been deleted from the complaint and hence, this petition."

3 On 21st October 2016, a Coordinate Bench passed the following order:

"The petitioner is before this court under Article 226 of the Constitution of India read with Section 482 of Cr.P.C in connection with I CR No. 129 of 2016 registered with Kodinar Police Station for the offences punishable under Sections 143, 147, 148, 149 and 427 of IPC read with Section 135 of Gujarat Police Act on 10.10. 2016.

It is case of the petitioner that on 9th October, 2016 at about 2:00 p.m., the petitioner was doing her household work at her residence when she heard some miscreants loudly uttering abusive words outside her residence.

She also had with her, at that time, her motherinlaw who is paralysed and two children aged 2 years and 4 years respectively. She realized on seeing from her window that it was mob with dangerous Page 5 of 25 HC-NIC Page 5 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT weapons in their hands. She found that former Member of Parliament Shri Dinu Bogha Solanki was leading the people to her residence shouting abusive words against her husband. He was accompanied by Mr.Bharat Jetha, Mr.Rohit Gohil, Driver of Dinu Solanki, Ranjitbhai and his brother Mansing, Lalo and other 1415 persons. It is her version that they shouted about her husband and broke open the entrance gate of her residence and entered inside the house. She immediately took her children and mother inlaw towards the terrace. The said mob of miscreants kicked the front gate and broke it and entered the hall. She also provided the details as to how the two vehicles and one Maruti Swift Car have been damaged. She has dialed 100 numbers for police assistance at about 3:15 p.m. The police personnel did not visit the petitioner's place until evening . She was given assurance by the police officers that some police personnel would go to her place for recording her complaint.

According to her, Police Inspector Shri Khachar along with other police personnel visited her place and recorded her version on 9th October, 2016 (at Annexure 'B') . The incident in question by then became viral on social media and all major news channels showed video footage of the incident on 10th October, 2016. The complaint came to be lodged by Police Inspector Mr.A.B.Nagori of Kodinar Police station who was present at the time of incident. It is her say that from the certified copy of the FIR which has been obtained on 14th October, 2016. the FIR registered is not the true version and is in fact a modified version. The name of the former M.P. Shri Dinu Bogha Solanki is not included in the FIR in spite of repeated and continuous requests as per her version. She therefore has approached this Court with a request for registration of fresh First Information Report by recording correct version of the incident and also seeking direction to transfer the investigation from Kodinar Police station to any other independent agency or the CID Crime.

Learned Advocate Mr. Anand Yagnik appearing for the petitioner has pointed out to this Court from the photographs so also the video footage in the CD which is produced on record that incident in question shows presence of former MP and also presence of mob with dangerous weapons. The presence of Police Inspector Mr.Nagori is also apparent from the video footage in the CD .

From this video footage in the CD, he urged that it could be noticed that the vehicle outside the residence, have been damaged with weapons and in such circumstances, the version given by the petitioner on 9 th October, 2016 ought to have been treated as FIR and not the version given by Mr.Nagori after 24 hours, wherein he has surprisingly stated that the version given by the petitioner is an exaggerated version. He has urged that it is apparent that investigation is required to be transferred from the present Investigating Officer to the independent agency.




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Learned APP Ms.Krina Calla has urged that Mr.Nagori since was present on call on 100 number, he is equally competent person to give an FIR . The petitioner herein could be the competent prosecution witness and her version not only has been recorded but further details also can be provided by her if she so chooses. She has urged that the investigation is at a nascent stage and there would be no requirement of transfer of investigation.

Having heard both the sides and also having seen the video footage in the CD and also bearing in mind the fact that the version of the petitioner who is the victim and witness of the incident has been recorded on 9th October, 2016 itself whereas the FIR came to be lodged by the Police Inspector on the next day i.e. 10th October, 2016 as the complainant sans certain vital details and inclusion of persons.

Issue Notice returnable on 24th October, 2016.

Ms.Krina Calla, learned APP waives service of notice for and on behalf of the respondent State.

The Investigation officer will remain present with the papers of investigation and case diary on the next returnable date.

Direct service is permitted."

4 Mr. Anand Yagnik, the learned counsel appearing for the writ applicant vehemently submitted that the version noted down by the police in the F.I.R. is not the correct version. The Police, only with a view to save the skin of one Mr. Dinu Bogha Solanki, a former member of the Parliament from the Junagadh Constituency, has noted down a distorted version. According to the learned counsel, the version in the complaint dated 10th October 2016 is the correct version.

5 Mr. Yagnik submitted that despite there being thumping evidence on record to indicate that it was Mr. Solanki, who led the unruly mob and ransacked the house of the writ applicant, yet his name does not figure in the First Information Report. He pointed out that Mr. Solanki has been chargesheeted for the offence of murder of one R.T.I. Activist, Page 7 of 25 HC-NIC Page 7 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT namely, Amit Jethva. The murder was committed outside the premises of the Gujarat High Court on 20th July 2010. The deceased had filed a Public Interest Litigation against the illegal mining activity alleged to have been carried out by Mr. Solanki and his Nephew, namely Pratap @ Shiva Hamir Solanki. He submitted that the trial against Mr. Solanki is in progress in the Court of the C.B.I. at Ahmedabad.

6 Mr. Yagnik submitted that the offence, as alleged, by the writ applicant was committed in presence of the Police Inspector, namely, Shri Nagori and other officers, namely, Shri A.D. Pateliya, Shri Khachar. The police officers remained mute spectators and did nothing. He submits that the investigation is not being carried out in the right direction and all efforts are being made by the police officers on account of the political pressure to shield and protect Mr. Solanki and his accomplices. He submitted that according to the complaint lodged by her in writing dated 9th October 2016, Mr. Solanki is the main accused. However, his role has been completely changed by the respondent No.2.

7 Mr. Yagnik pointed out that many offences were registered against Mr. Solanki in the past and in most of those cases, the police filed closure reports at the behest of Mr. Solanki. He lastly submitted that since the investigation in connection with the murder of the R.T.I. Activist was not being properly carried out, this Court had to transfer the investigation to the C.B.I., vide order dated 25th September 2012 passed in the Special Criminal Application No.1925 of 2010. The said order dated 25th September 2012 was challenged before the Supreme Court, which culminated in a reportable decision titled as "Dinubhai Bogabhai Solanki vs. State of Gujarat and others" reported in (2014) 4 SCC 626. Mr. Yagnik pointed out that it is the Honourable Apex Court who released Mr. Solanki on bail subject to certain terms and conditions.



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         8      Mr.   Yagnik   submitted   that   in   such   circumstances   referred   to

above, the reliefs, as prayed for in this writ application, be granted.

9 On the other hand, this writ application has been vehemently opposed by Ms. Nisha Thakore, the learned Additional Public Prosecutor appearing for the State. According to the learned A.P.P., the allegations levelled in the writ application are far from truth. She pointed out that the investigation is at a standstill since there is an order of statusquo passed by this Court. The Investigating Officer understood that till the final disposal of this writ application, he has not to go ahead with the investigation. According to the learned A.P.P., for such reasons, the Investigating Officer has not effected any arrest and has not proceeded further in the matter.

10 An affidavitinreply has been filed duly affirmed by one A.B. Nagori, serving as a Police Inspector at the Kodinar Police Station, inter alia stating as under:

"5.1 That on 09.10.2016, the deponent was on duty and present at the Kodinar Police Station and at around 14:00 hrs. received phone from unknown person informing that mob has come to attack residence house of one Rafikbhai @ Bhuro Suleman Ganchi at Raghuvir Society. That the deponent himself along with the police staff including PSI Shri S.L. Khachar, ASI A.P. Pateliay, Police Constable Shri Prafulbhai Jesingbhai left in the Government vehicle and reached the spot. Here with annexed and marked as Annexure RI is the copy of the vardhi received on 09.10.2016 at around 15:22 hrs. 5.2 That on reaching the spot, it was found that mob of around 20 persons had gathered and were carrying weapons like stick, dhoka, base ball dhoka, iron pipes and sword, etc. and had attacked the house of the said Rafikbhai @ Bhuro. That on reaching the spot, the deponent along with other officers promptly tried to disperse the mob and warned them of not take law in their hand. That in that process while trying to disperse the mob, the deponent himself received injuries in his right palm and Page 9 of 25 HC-NIC Page 9 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT blood had also come out. In the meanwhile, though the house of the said Rafikbhai was closed and locked was there on the main door, the persons in the mob pelted stones on the windows of the house and broke it. That the vehicles which include one four wheeler and 3 motor bikes which were parked out side were damaged. That when the police resorted to action, the mob gradually dispersed and further damaged was avoided. That the situation was taken in control at the place of incident and also restrain action was taken to avoid any untoward incident in Kodinar by doing patrolling in Kodinar. That the 8 persons named as accused in the FIR were arrested from the spot and being present at the time of incident the deponent himself lodged FIR bearing I CR No.129 / 2016.

5.3 It may kindly be appreciated that when the incident occurred neither Rafikbhai @ Bhuro nor his wife Jetuben - present petitioner were present to lodged the FIR. That subsequently the statement of Juteben was recorded on 09.10.2016 by PSI Mr. Pateliya. That around 15:22 hrs, ASI Mr. Pateliya was informed by the State Control through 100 no. having received message of the incident by the husband of the petitioner, thereby informing to depute police staff on spot. Here with annexed and marked as AnnexureRII is the copy of the said statement of Jetuben recorded on 09.10.2016.

5.4 That the facts narrated by the said Jetuben were incorrect and exaggerated and it was found that to settle scores with regard to earlier dispute, name of the Dinu Bogha Solanki was referred and though house was locked from outside, it was stated that mob had entered house and broken T.V. Set and other house hold things. As against these version of the Jetuben who was not even present when the incident occurred, the deponent himself who was an eye witness to the incident and being present at the time of incident lodged FIR, That the police maintains the station diary and the first entry in the station diary of Kodinar Police Station of 09.10.2016, with regard to the incident has been entered vide entry no. 21 at around 22:00 hrs. Here with annexed and marked as AnnexureRIII is the copy of the station diary of Kodinar Police Station of 09.10.2016 and 10.10.2016.

5.5 That on 10.10.2016, the investigation has been handed over to Shri ASI Mr. Pateliya. Here with annexed and marked as Annexure RIV is the copy of the communication dated 10.10.2016. That panchnama was carried out of the place of offence on 10.10.2016 at around 12:30 Hrs. Here with annexed and marked as Annexure RV is the copy of said panchnama drawn of place of offence.

5.6 That on 10.10.2016, statements of neighbours and other witnesses who were present at the time of incident has been also recorded. Here with annexed and marked as Annexure RVI collectively are the copies of the said statements of the neighbours and witnesses. That at present Page 10 of 25 HC-NIC Page 10 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT investigation is in progress. In course of investigation, it is learnt that day before one incident had occurred in which the husband of the petitioner was found to be involved in commission of offences under Section 392, 323, 504, 427, 114 of IPC and Section 135 of G.P. Act which is registered as I CR No.125/16. It is also found that the husband of the petitioner is criminal offender in as much as almost offences are registered against him in Kodinar Police Station. Here with annexed and marked as Annexure R VII is the copy of the list showing the details of such offences against Rafikbhai @ Bhuro.

6 In background of these facts and circumstances, I humbly say and submit that the version narrated by the petitioner in her statement dated 09.10.2016 does not give correct facts and with some malafide intention to have personal gains and settle scores in regard to the offence registered against the husband, the statement narrated by the petitioner is not considered as an FIR. That so far as reliance placed on the CD videography is concerned, the deponent himself has gone through the same and at no stage, it is shown that the police officers were shielding the offenders. In fact with the staff of four officers as against mob of 25 persons equipped with weapons, the immediate attempt of the police was to disperse mob and save the house from further damage or to avoid any untoward incident endangering life. In fact, the deponent himself received injury in this process. It is further humbly stated that so far as damaged in the house is concerned, the same has been done by the petitioner family subsequently to exaggerate the incident to show that mob had tress pass the house of the petitioner. In fact, when the incident occurred, the deponent was present and the house was closed and lock was applied on the main door of the house of the petitioner. Even on close inspection of the video it can be apparently seen that the house is closed. That so far as allegation about Dine Bogha Solanki is concerned, he was present at the time of incident but has not played any rope in the commission of the offence. In fact, he also tried to disperse the mob and was not even member of that unlawful assembly nor was carrying any weapon. In these facts and circumstances, I humbly say and submit that the allegations made by the petitioners are not correct and the deponent strongly object to same. That the investigation is still going on and during the course of investigation if any material evidence is found indicating involvement of any persons, the same shall be considered by the investigating officer at the tie of filing of charge sheet. The deponent therefore, humbly urges to the Hon'ble Court to not to entertain the petitioner and dismissed the same, in the interest of justice."

11 The plain reading of the affidavit referred to above would indicate that according to the police, the version of the writ applicant as sought to be put is quite exaggerated and the writ applicant has tried to Page 11 of 25 HC-NIC Page 11 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT suppress the material facts.

12 In such circumstances referred to above, the learned A.P.P. submits that the investigation will be carried out in a fair and transparent manner. She submits that if Mr. Solanki against whom serious allegations have been levelled is found to have been involved, then appropriate action shall be taken against him in accordance with the law.

13 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to the reliefs prayed for in this writ application.

14 The first thing I need to look into is the order of statusquo said to have been passed by a Coordinate Bench on which much emphasis has been laid. The reason why I want to clarify is that according to the State, it is only on account of such order of statusquo passed by this Court that the investigation has not been conducted so far. I take notice of the order passed by a Coordinate Bench vide order dated 21st October 2016. I am told that 21st October 2016 was the last day preceding the Diwali vacation. I am also told that the learned Single Judge heard the matter upto 8:30 P.M. in the night, and ultimately, passed the order which I have noted above. I do not find a single word of statusquo in the entire order. In such circumstances, I inquired with Ms. Krina Calla, the learned A.P.P., who had appeared for the State on 21st October 2016, whether any oral statement was made or any oral directions were passed by the Court. Ms. Krina Calla, the learned A.P.P. clarified that no such statement was made at her instance nor there was any oral direction issued by the Court to maintain the statusquo. I also take notice of the Page 12 of 25 HC-NIC Page 12 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT order passed by another learned Single Judge of this Court dated 25th October 2016, which reads as under:

"At the joint request made by the learned advocate for the applicant as well as the learned APP, it appears on record to adjourned the matter to 08.11.2016. Request is granted. Let the matter be fixed on 08.11.2016. Status Quo granted earlier to be continued till then."

15 For the first time, I noticed on 25th October 2015 that the Court has said something about the statusquo. Having regard to the same. I passed an order on 8th November 2016, which reads as under:

"Having regard to the order passed by this Court time to time and also considering the serious allegations which have been levelled, it is expected of the respondents to file a detailed reply.

Let such reply be filed within a period of two weeks from today. A copy of the same shall be served upon the learned counsel appearing for the writ applicant in advance.

Stand over to 23rd November, 2016. Status quo granted earlier to be continued till then."

16 Thus, it appears that there is no order of statusquo worth the name either in writing or oral passed by this Court. I fail to understand why the stance of the State is that on account of such order of status quo, there has been no further investigation.

17 In the course of the hearing of this matter, Mr. Yagnik made available a Laptop on which the Compact Disc (C.D.) containing the video recording of the entire incident was played. After watching the C.D., I wondered for some time, whether I was a Judge in the State of Gujarat or in any other State. The video speaks for itself. The State submitted that they do not question the genuineness of the photographs Page 13 of 25 HC-NIC Page 13 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT which are on record, including the three C.Ds. I also take notice of what has been stated in this regard in the affidavitinreply filed by the police officer referred to above. It is so apparent that Mr. Solanki led the unruly mob, which created a havoc on the fateful day at the residential house of the writ applicant, and in all the photographs, which are on record, Mr. Solanki figures with his accomplices armed with Swords, Iron Pipes, Base Ball Bats, Sticks, etc. As on date, Mr. Solanki is a freeman and all his accomplices are also roaming around freely.

18 Article 21 guarantees fair trial. A fair trial is impossible if there is no fair investigation. In order to be a fair investigation, the investigation must be conducted thoroughly, without bias or prejudice, without any ulterior motive and every fact, surfacing during the course of investigation, which may have a bearing on the outcome of the investigation and, eventually, on the trial, must be recorded contemporaneously by the Investigating Officer at the time of investigation. A manipulated investigation or an investigation, which is motivated, cannot lead to a fair trial. Necessary, therefore, it is that the Courts are vigilant, for, it is as much the duty of the Court commencing from the level of the Judicial Magistrate to ensure that an investigation conducted is proper and fair as it is the duty of the Investigating Officer to ensure that an investigation conducted is proper and fair. A fair investigation would include a complete investigation. A complete investigation would mean an investigation, which looks into all the aspects of an accusation, be it in favour of the accused or against him.

19 Article 21, undoubtedly, vests in every accused the right to demand a fair trial. This right, which is fundamental in nature, casts a corresponding duty, on the part of the State, to ensure a fair trial. If the State is to ensure a fair trial, it must ensure a fair investigation. Logically Page 14 of 25 HC-NIC Page 14 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT extended, this would mean that every victim of offence has the right to demand a fair trial meaning thereby that he or she has the right to demand that the State discharges its Constitutional obligation to conduct a fair investigation so that the investigation culminates into fair trial. The State has, therefore, the duty to ensure that every investigation, conducted by its chosen agency, is not motivated, reckless and that the Investigating Officer acts in due obedience to law. It is only when the State ensures that the investigation is fair, can it (the State) be able to say, when questioned, that the trial conducted was a fair trial. Article 21, therefore, does not vest in only an accused the right to demand fair trial, but it also vests an equally important right, fundamental in nature, in the victim, to demand a fair trial. Article 21 does not, thus, confer fundamental right on the accused alone, but it also confers, on the victim of an offence, the right, fundamental in nature, to demand fair trial. When police registers a case, the State assumes the responsibility of conducting an investigation. Having assumed the responsibility of investigating the truth or veracity of the allegations, which the police receive, the State cannot act, nor can its Investigating agency act, without a sense of impartiality. It is not merely a trial, which has to be impartial. No less important it is that the investigation, too, is impartial. Fairness of trial will carry with it the fairness of investigation and fairness of investigation will carry with it the impartiality in investigation, besides the investigation being efficient, unbiased, not aimed at helping either the prosecution or the defence. In short, an investigation must not suffer from any ulterior motive or hidden agenda to either help a person or harm a person. This is the principle, which Article 21 of the Constitution of India, read with Article 14 thereof, enshrines, when we say that our Constitution guarantees fair trial.





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         20      A victim is as much a part of the criminal justice system as the

accused is. It is the bounden duty of the State to ensure a free and effective access to justice to all victims of crime.

21 The alleged violation of the above stated principles is at the heart of the controversy in the present writ application.

22 The lack of anxiety of the police and its inertia in acting on the complaint lodged by the writ applicant promptly and effectively is apparent. The police have been mute spectators so far. The entire State machinery appears to be stacked in favour of Mr. Solanki, probably, because he belongs to the ruling dispensation. The reluctance of the police to perform their duties in the present case has caused the writ applicant to approach this Court in its writ jurisdiction.

23 It was vehemently submitted by the learned A.P.P. that the husband of the writ applicant is a hardcore criminal and many cases have been registered against him. It was submitted that he is a nuisance to the society and a potential threat to the law and order. Let me assume for the moment that the husband of the writ applicant has antecedents. Will the same give a license to the people to act in such a highhanded manner and lay an assault on the family members and children. I take notice of the fact that the writ applicant belongs to a minority community. The incident, like the case at hand, could have easily triggered communal tension. It takes no time for communal tension to spread across the State. This State has witnessed the worst of communal riots in the past. It should not have taken more than a day for the police to arrest the persons, who were members of the unlawful assembly, more particularly, when the three Compact Discs were produced by the writ applicant. Three months' have passed by now. What message the Page 16 of 25 HC-NIC Page 16 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT State has conveyed to the common people at large after this episode. The message, which has reached to the common people, is that persons, like Mr. Solanki, can get away with the help of police even after committing an offence.

24 I am of the view that the investigation should be transferred at the earliest to the State C.I.D. Crime. The consistent view of the Supreme Court, as elucidated in many judgments, is that normally, there should not be a change in the investigating agency. However, if there are accusations made against the local police, which would adversely affect the credibility of the investigation carried out by them, it is, both advisable and desirable, and in the interest of justice, to entrust the investigation to an independent agency. This is, because, it is necessary to instill confidence in the complainant and the general public that the investigation would be carried out in a fair, transparent and unbiased manner.

25 In Manohar Lal Sharma v. Principal Secretary and Others reported in (2014) 2 SCC 532 : (AIR 2014 SC 666 : 2014 Criminal Law Journal 1015) a Bench of three learned Judges of the Supreme Court has observed thus:

"24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation Page 17 of 25 HC-NIC Page 17 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT is tainted with animosity, the court may intervene to protect the personal and/or property rights of the citizens.

25. Lord Denning12 has described the role of the police thus:

"In safeguarding our freedoms, the police play a vital role. Society for its defence needs a wellled, welltrained and welldisciplined force of police whom it can trust: and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.

The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man's house without authority. They must not use more force than the occasion warrants."

26. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to book"

26 The Court then observed that monitoring of investigation/ enquiries by the Court is intended to ensure the proper progress of the investigation without directing or channelizing the mode or manner of the investigation. The idea is to retain the public confidence in the impartiality of the investigation and to ensure that the investigation is made on a reasonable basis into every accusation, irrespective of the position and status of the person. The Court went on to observe that the monitoring of an investigation by the Court aims to lend credence to the enquiry or investigation being conducted by a premier investigating agency and to eliminate any impression of bias, lack of fairness and objectivity. The Court has distinguished between the supervision of an investigation and monitoring of the investigation in the following terms:

"39. However, the investigation/inquiry monitored by the court does not mean that the court supervises such investigation/inquiry. To supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. The concern and interest of the court in such "Courtdirected" or "Courtmonitored" cases is Page 18 of 25 HC-NIC Page 18 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT that there is no undue delay in the investigation, and the investigation is conducted in a free and fair manner with no external interference. In such a process, the people acquainted with facts and circumstances of the case would also have a sense of security and they would cooperate with the investigation given that the superior courts are seized of the matter. We find that in some cases, the expression "Courtmonitored" has been interchangeably used with "Courtsupervised investigation". Once the court supervises an investigation, there is hardly anything left in the trial. Under the Code, the investigating officer is only to form an opinion and it is for the court to ultimately try the case based on the opinion formed by the investigating officer and see whether any offence has been made out. If a superior court supervises the investigation and thus facilitates the formulation of such opinion in the form of a report under Section 173(2) of the Code, it will be difficult if not impossible for the trial court to not be influenced or bound by such opinion. Then trial becomes a farce. Therefore, supervision of investigation by any court is a contradiction in terms. The Code does not envisage such a procedure, and it cannot either. In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and timebound manner without any external interference."

27 Let me, at this stage, deal with the submission canvassed on behalf of the State that since the officer concerned found the version of the writ applicant quit exaggerated, he did not deem fit to notedown the First Information Report in the exact words of the writ applicant. I fail to understand on what basis a police officer, while recording the First Information Report, can entertain such a doubt. Whatever may be the version of the first informant, the same has to be noteddown as it is. Whether such version is true or false or exaggerated, is to be looked into in the course of the investigation. The case of the writ applicant is that the contents of the First Information Report are quite distorted and the police deliberately, only with a view to save Mr. Solanki and his accomplices, did not record the exact version. The learned counsel, in my view, is right in submitting that, ultimately, all these things would matter in the course of the trial. According to him, the First Information Report bearing IC.R. No.129 of 2016 should be quashed and an Page 19 of 25 HC-NIC Page 19 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT independent agency, like the C.I.D. (Crime) be directed to register the F.I.R. a fresh and carry out the investigation.

28 Mr. Yagnik submitted that all those police officers, who failed to discharge their duties efficiently and honestly, should be proceeded with accordingly by way of a departmental inquiry, etc. 29 The Police figure as Entry 2 in State List in the Seventh Schedule of the Constitution, thereby making State Government primarily responsible for maintaining public order. Invariably, police, which is a part of the civil administration, is at the forefront in maintaining law and order under the framework of constitutional governance based on principles of Sovereign Socialist Secular Democratic Republic to secure fundamental right of its citizens. In consonance with the idea of democratic policing, a Code of Conduct for the Police in India was adopted at the Conference of Inspectors General of Police in 1960 and circulated to all the State Governments.

• Code of Conduct for the Police in India (1960):

1. The police must bear faithful allegiance to the Constitution of India and respect and uphold the rights of the citizens as guaranteed by it.

2. The police are essentially a law enforcing agency. They should not question the propriety or necessity of any duly enacted law. They should enforce the law firmly and impartially, without fear or favor, malice or vindictiveness.

3. The police should recognize and respect the limitations of their Page 20 of 25 HC-NIC Page 20 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT powers and functions. They should not usurp or even seem to usurp the functions of the judiciary and sit in judgment on cases. Nor should they avenge individuals and punish the guilty.

4. In securing the observance of law or in maintaining order, the police should, as far as practicable, use the methods of persuasion, advice and warning. When the application of force becomes inevitable, only the irreducible minimum of force required in the circumstances should be used.

5. The prime duty of the police is to prevent crime and disorder and the police must recognize that the test of their efficiency is the absence of both and not the visible evidence of police action in dealing with them.

6. The police must recognize that they are members of the public, with the only difference that in the interest of the society and on its behalf they are employed to give full time attention to duties, which are normally incumbent on every citizen to perform.

7. The police should realize that the efficient performance of their duties would be dependent on the extent of ready cooperation that they receive from the public. This, in turn, will depend on their ability to secure public approval of their conduct and actions and to earn and retain public respect and confidence. The extent to which they succeeded in obtaining public cooperation will diminish proportionality the necessity of the use of physical force or compulsion in the discharge of their functions.

8. The police should always keep the welfare of the people in Page 21 of 25 HC-NIC Page 21 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT mind and be sympathetic and considerate towards them. They should always be ready to offer individual service and friendship and render necessary assistance to all without regard to their wealth and/or social standing.

9. The police should always place duty before self, should maintain calm in the face of danger, scorn or ridicule and should be ready to sacrifice their lives in protecting those of others.

10. The police should always be courteous and well mannered; they should be dependable and impartial; they should possess dignity and courage; and should cultivate character and the trust of the people.

11. Integrity of the highest order is the fundamental basis of the prestige of the police. Recognizing this, the police must keep their private lives scrupulously clean, develop selfrestraint and be truthful and honest in thought and deed, in both personal and official life, so that the public may regard them as exemplary citizens.

12. The police should recognize that their full utility to the State is best ensured only by maintaining a high standard of discipline, faithful performance of duties in accordance with law and implicit obedience to the lawful directions of commanding ranks and absolute loyalty to the force and by keeping themselves in the state of constant training and preparedness.

30 Today the country we live in is a country beset by tensions, clashes, conflict, crime, corruption, fears and horrors. There exists an environment of helplessness and despondency. Crime and corruption Page 22 of 25 HC-NIC Page 22 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT have been with us from time immemorial. They are a persistent evil. Crime and corruption have been presenting serious problems to the present governments and are a heavy burden upon the society. The poison of crime and corruption has permeated every walk of life in India. The clouds of danger hoovering over the social, economic and political scenario of India cannot be blown away so long as corruption, criminalisation of politics, politicisation of crime and corruption and politicisation of bureaucracy occur. India will not enjoy rapid growth so long as problems of crime and corruption multiply. People in general have lost confidence in the police and administration who are always genuflecting before people in power.

31 If the State is really very much serious about this matter, then it should go to the Supreme Court at the earliest and bring it to the notice of the Supreme Court that Mr. Solanki has misused the liberty granted and his bail should be cancelled.

32 In Manu Sharma vs. State (NCT of Delhi) [(2010) 6 SCC 1 : (AIR 2010 SC 2352 : 2010 AIR SCW 4302)], the Supreme Court has elaborately dealt with the requirement of fair investigation observing as under :

"...... The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India....

It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law.



                                                    Page 23 of 25

HC-NIC                                            Page 23 of 25     Created On Sun Aug 13 11:46:15 IST 2017
                   R/SCR.A/8298/2016                                                  JUDGMENT

Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society....

The Court is not to accept the report which is contra legem (sic) to conduct judicious and fair investigation....

The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of the police to make investigation.....".

33 Unless an extraordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. Thus, in case of a mala fide exercise of power by a police officer the court may interfere, (vide: S.N. Sharma v. Bipen Kumar Tiwari and Ors., AIR 1970 SC 786).

34 In Kashmeri Devi vs. Delhi Administration and Another [AIR 1988 SC 1323], the Supreme Court held that where the investigation has not been conducted in a proper and objective manner, it may be necessary for the court to order for fresh investigation with the help of an independent agency for the ends of justice so that real truth may be revealed. In the said case, the Supreme Court transferred the investigation to the C.B.I., after coming to the conclusion that investigation conducted earlier was not fair.

35 I propose to dispose of this writ application with the following order and directions:

[a] The First Information Report bearing IC.R. No.129 of 2016 lodged before the Kodinar Police Station, District: GirSomnath is Page 24 of 25 HC-NIC Page 24 of 25 Created On Sun Aug 13 11:46:15 IST 2017 R/SCR.A/8298/2016 JUDGMENT hereby quashed. The investigation is ordered to be transferred to the State C.I.D. (Crime).

[b] The Director General of Police, C.I.D. shall appoint a competent officer from the C.I.D. at the earliest and ensure that a proper, unbiased and meaningful investigation is carried in the matter. It would be open for him to oversee the investigation and make sure that his subordinate officer is following the law and is not overawed with either the situation or the persons involved in the alleged offence.

[c] The writ applicant shall be called at the concerned police station at the earliest for recording of the First Information Report.

[d] The Director General of Police, C.I.D. shall ensure that no untoward incident occurs on account of the incident and no threats are administered to any of the family members of the victims or the people residing in the locality.

36 With the above, this writ application is disposed of. Direct service is permitted.

37 The Registry is directed to send a copy of this judgment and order to the Director General of Police, State C.I.D. (Crime), at the earliest.

(J.B.PARDIWALA, J.) chandresh Page 25 of 25 HC-NIC Page 25 of 25 Created On Sun Aug 13 11:46:15 IST 2017

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