Gujarat High Court
Rakesh Mahendrakumar Desai vs State Of Gujarat & 2 on 10 July, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/SCR.A/4390/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 4390 of 2017
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RAKESH MAHENDRAKUMAR DESAI....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR ASIM PANDYA FOR MR UDAYAN P VYAS, ADVOCATE for the
Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 10/07/2017
ORAL ORDER
1. This petition is filed under Article 226 of the Constitution of India praying for the reliefs as under:
"A. This Hon'ble Court may be pleased to issue appropriate directions, order or writ directing respondent no.3 to register the FIR under Section 154 of Cr. P.C. with regard to the written complaint dated 15/12/2016 given by the petitioner, and to commence investigation in the matter.
B. Pending admission and final disposal of the present petition, this Hon'ble Court may be pleased to direct respondent no.3 to send the original will to the Forensic Science Laboratory for the opinion of the handwriting expert and to obtain report of the handwriting expert within 30 days."
2. The learned advocate for the petitioner submits that the case pertains to an allegation of forgery of a Will of one Mahendrakumar Desai. It is submitted that on the basis of such Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Aug 20 03:30:59 IST 2017 R/SCR.A/4390/2017 ORDER Will even compensation has been pocketed by the accused person and after the filing of the complaint before the concerned police authority, as no response was received, a petition being Special Criminal Application No.2630/2017 was filed, where this Court by an order dated 17.04.2017 issued directions, which are as under:
"The Police Inspector, Navapura Police Station, Vadodara, is directed to take into consideration the complaint filed by the petitioner in writing (Annexure-B to this petition) and after going through the same, take a decision, whether the same discloses commission of a cognizable offence or not. After taking into consideration the complaint and other materials, if any, the Police Inspector is of the view that the same discloses commission of a cognizable offence, then appropriate directions be issued for registration of the FIR forthwith at the concerned Police Station. However, the Police Inspector, after going through the materials, is of the view that no case is made out for registration of the FIR, then in such circumstances, he shall inform the petitioner in writing about the same by assigning reasons in brief, within a period of four weeks from today.
With the above observations and directions, this petition is disposed of. I clarify that I have otherwise not gone into the merits of the matter.
For any reason, if the police authorities refuse to register the FIR, it shall be open for the petitioner to avail of the remedy under Section 200 of the Code of Criminal Procedure."
3. The learned advocate submits that after the directions of this Court the Investigating Officer came to prima facie conclusion that the offence is made out. However, his opinion as such was overruled by his superior officer, as a result of which the written complaint of the petitioner was filed (not Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Aug 20 03:30:59 IST 2017 R/SCR.A/4390/2017 ORDER proceeded).
4. He draws attention of this Court to the internal communication dated 23.05.2017 received by the petitioner under Right to Information Act to substantiate the submission that the Investigating Officer did come to the conclusion of cognizable offence having taken place.
5. The learned advocate for the petitioner submits that though the only ground on which the written complaint by the petitioner was filed (not proceeded) for the pendency of civil suit at various stages including before the Apex Court and that such litigation was based on the subject Will and probate issued thereafter. He submits that the issue of Will and probate, which are civil in nature would be altogether different aspect then the neat allegation made in the complaint about forgery of the Will and hiding the same for a period of 15 years. He therefore, submits that though the offence is clearly made out and that the directions are issued by this Court the failure on the part of the respondent police authorities has compelled the petitioner to file this petition with the prayer.
6. The learned APP submitted that the previous petition which is disposed of by the order dated 17.04.2017 has clearly left an option open for the petitioner to resort to the remedy under Section 200 of Cr. P.C. if the police authorities, for any reasons, refuse to register the FIR. He therefore, submits that when the directions are clearly issued by the Court and that after the due inquiry / investigation if the police authority has come to the conclusion of not proceeding to his complaint then he ought to have resorted to other provisions of Cr. P.C. Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Aug 20 03:30:59 IST 2017 R/SCR.A/4390/2017 ORDER
7. Having heard the learned advocates for the rival parties, this Court finds strength in the arguments submitted by the learned advocate for the petitioner to the extent that though this Court had in a previous order given directions first to the police authorities to go through the allegations made in the complaint and take a decision with regard to the disclosure of the cognizable offence and thereafter an appropriate decision was to be taken, therefore, when the Investigating Officer prima facie finds existence of a cognizable offence the superseding of such opinion by his superior officer would not fall in "for any reason" which is contemplated by the order dated 17.04.2017.
8. In any view of the matter when the report pointed out by the petitioner thus, indicates that only on the basis of three points the complaint was ordered to be filed (not proceeded) without reverting to the actual investigation qua the allegation of the forgery of the Will, the conclusion thus arrived at was pre-mature at the hands of the superior officer of the investigating agency and therefore, this Court is of the view that pursuant to the directions issued by this Court in the previous order the investigating agency ought to have carried forward the investigation on the direction of forgery of the Will. At this stage, the learned advocate for the petitioner submits that the original Will is in their custody and the petitioner is ready to put it forth before the investigating agency. However, he raises an apprehension that the nature of allegation and the conduct of the proposed accused is such that once the Will is taken in custody for investigation it would be difficult for the petitioner to get the track of this vital document.
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R/SCR.A/4390/2017 ORDER
9. In view of the aforesaid apprehension raised and without entering into the merits of the case, it would be appropriate to direct the D.C.P. Zone 2, Vadodara, to take in custody the Will in question by drawing an appropriate panchnama and undertaking the entire exercise under the videography within a period of one week from the date of the receipt of this order. The panchnama and the videography to be treated as a part of the investigation. Obviously, the Will thus, taken as a part of the investigation would be subjected to expert examination of the forensic document. On such opinion being available, it will be open for the investigating agency to take the case further in response to such opinion.
With the above directions the petition is disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(A.Y. KOGJE, J.) Dolly Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Aug 20 03:30:59 IST 2017