Gujarat High Court
Arvindbhai Chimanbhai Patel S/O ... vs State Of Gujarat & 6 on 16 December, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/5089/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 5089 of 2015
[On note for speaking to minutes of order dated 04/12/2015 in
R/SCR.A/5089/2015 ]
==========================================================
ARVINDBHAI CHIMANBHAI PATEL S/O JAMNABEN CHIMANBHAI
PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
==========================================================
Appearance:
MR AB MUNSHI, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/12/2015
ORAL ORDER
1. By this note for speaking to minutes, it has been pointed out that in para-5 of the order dated 4th December, 2015, there is no reference of the Zone of jurisdiction of the Deputy Commissioner of Police, Surat. Para-5 shall be read as under;
"The Deputy Commissioner of Police, Surat, Zone-II is also directed to monitor the investigation in the wake of serious allegations made in this petition. I expect the investigation to proceed expeditiously and the same be completed within a period of four months from today"
2. The office is directed to effect the necessary correction or Page 1 of 2 HC-NIC Page 1 of 6 Created On Fri Dec 18 02:00:22 IST 2015 1 of 6 R/SCR.A/5089/2015 ORDER addition so far as the Zone is concerned and issue a fresh writ of the order.
3. The note for speaking to minutes is, accordingly, disposed of.
4. Direct service is permitted qua the Deputy Commissioner of Police, Surat, Zone-II.
(J.B.PARDIWALA, J.)
Vahid
Page 2 of 2
HC-NIC Page 2 of 6 Created On Fri Dec 18 02:00:22 IST 2015
2 of 6
R/SCR.A/5089/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE FIR/COMPLAINT) NO. 5089 of 2015 ========================================================== ARVINDBHAI CHIMANBHAI PATEL S/O JAMNABEN CHIMANBHAI PATEL....Applicant(s) Versus STATE OF GUJARAT & 6....Respondent(s) ========================================================== Appearance:
MR AB MUNSHI, ADVOCATE for the Applicant(s) No. 1 MR JK SHAH, APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 04/12/2015 ORAL ORDER 1 By this writ application under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"16(a) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order and/or direction and be pleased to direct the respondent no.3 herein to further direct the respondent no.4 Police Inspector, Khatodara Police Station, to immediately register the F.I.R. on the basis of the complaints given by the petitioner at AnnexureB, G colly and H and then proceed further in accordance with law;
(b) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order and/or direction and be pleased to direct the State of Gujarat by way of interim relief to appoint a high rank officer to inquire and investigate into the complaints given by the petitioners at AnnexureB colly, G colly and H and submit action taken report before this Honourable Court within stipulated time period;
(C) Your Lordships be pleased to issue appropriate writ, order or direction quashing and setting aside the impugned communication dated Page 1 of 4 HC-NIC Page 3 of 6 Created On Fri Dec 18 02:00:22 IST 2015
3 of 6 R/SCR.A/5089/2015 ORDER 1852015 at AnnexureA to this petition and direct the high rank officer who may be appointed by this Hon'ble Court to forthwith lodge an FIR against the accused persons;
(d) Your Lordships be pleased to direct the respondent nos.2 and 3 to direct Police Inspector, Khatodara Police Station (respondent no.4), to immediately register the F.I.R. on the basis of the complaints given by the petitioners at AnnexureB colly, G colly and H and then proceed further in accordance with law pending the admission, hearing and final disposal of this petition;
(e) Pending the admision, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent no.3 to procedure the original power of attorney dated 1771978 and sent the same to FSL for the purpose of verification of the specimen signatures of the mother of the petitioner and after obtaining such report the same may be produced before this Hon'ble Court for perusal;
(f) Your Lordships be pleased to grant such other and further relief/s, as are deemed fit, in the interest of justice."
2 On 6th November, 2015, the following order was passed:
2. On 16th September, 2015, the following order was passed;
In the course of the hearing of this matter, it was understood that the Investigating Officer shall make all possible efforts to recover the original Power of Attorney, a copy of which is annexed at page 69 (Annexure "C" collectively), purported to have been executed by one Jamnaben Gandabhai Patel, in favour of Dahiben Gijubhai Patel. The Investigating Officer shall take steps to collect the original and thereafter forward the same to the FSL for the opinion of the handwriting expert. If the I.O is unable to recover the original Power of Attorney from the person who is presumed to be in possession, then it shall be open for him to draw an adverse inference that an important document is not being parted with for an effective investigation.
Let this matter appear after four weeks i.e. on 15.10.2015.
3. An affidavitinreply has been filed by one Mohammed Aarif M. Diwan, Police Inspector, Khatodara Police Station, Surat City. It appears from the materials on record that the case is one of execution of a bogus and forged power of attorney of the year 1978, a bogus and forged possession receipt, a bogus and forged agreement to sell and a sale deed of the year 2000. As Page 2 of 4 HC-NIC Page 4 of 6 Created On Fri Dec 18 02:00:22 IST 2015 4 of 6 R/SCR.A/5089/2015 ORDER usual, this matter being from Surat is one of a land grabbing. The investigating officer is personally present in the Court. After taking instructions from the investigating officer, Mr. Amin, the learned Public Prosecutor, made a statement that despite all efforts being put in to recover the alleged forged power of attorney, the same has not been able to recover. However, whatever investigation has been carried out so far, prima facie, discloses commission of a cognizable offence. Mr. Amin submitted that offence would be registered by registration of the first information report at the concerned police station in accordance with law. He submitted that at the earliest, the first information report would be registered and the investigation would proceed further in accordance with law.
4. In my order dated 16th September, 2015, I have clarified that if the investigating officer is unable to recover the original power of attorney from the person who is presumed to be in possession, then it shall be open for the investigating officer to draw an adverse inference that an important document is not being parted with for an effective investigation. In such circumstances, the investigating officer will have to proceed with the investigation in that direction.
5. Let the matter appear on 4th December, 2015. On that day, the further progress in the matter shall be reported."
3 Today, when the matter is taken up for further hearing, Mr. J.K. Shah, the learned Additional Public Prosecutor appearing for the respondent - State of Gujarat produces a copy of the First Information Report registered at the Khatodara Police Station, District: Surat City bearing C.R. No.I213 of 2015 for the offence punishable under Sections 406, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code.
4 It appears that the first step in the process seems to have been completed. Having found more than a prima facie case, the Police has thought fit to register the F.I.R. I expect the Investigating Officer now to undertake the investigation in a fair and transparent manner, more Page 3 of 4 HC-NIC Page 5 of 6 Created On Fri Dec 18 02:00:22 IST 2015 5 of 6 R/SCR.A/5089/2015 ORDER particularly, in the right direction. I have already taken cognizance of the fact that a very important document i.e. the bogus power attorney has not been recovered so far. Since the F.I.R. has been registered, all possible steps and endeavours should be made by the Investigating Officer to procure the alleged bogus/forged power attorney. The said document is going to be the basis of the prosecution. For one reason or the other, it has been suppressed. The reason also appears to be quite obvious because once the document is in the hands of the Investigating Officer, it would be very easy for the State to prove the case against the persons concerned.
5 The Deputy Commissioner of Police, Surat is also directed to monitor the investigation in the wake of serious allegations made in this petition. I expect the investigation to proceed expeditiously and the same be completed within a period of four months from today.
6 With the above, this petition is disposed of. Liberty is reserved to approach this Court, in case of any difficulty. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 4 of 4 HC-NIC Page 6 of 6 Created On Fri Dec 18 02:00:22 IST 2015 6 of 6