Gujarat High Court
Alpeshbhai Baldevbhai Sachdev vs State Of Gujarat & 2 on 21 January, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/6441/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6441 of 2015
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ALPESHBHAI BALDEVBHAI SACHDEV....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 21/01/2016
ORAL ORDER
1. Rule returnable forthwith. Mr. J.K. Shah, the learned APP, waives service of notice of rule for and on behalf of the respondents Nos. 1, 2 and 3.
2. By this writ-application under Article 226 of the Constitution of India, the petitioner-original complainant has prayed for the following reliefs:-
"(a) To allow this petition;
(b) To issue appropriate writ, order or direction declaring the report at Annexure-B as illegal, invalid insofar as it relates to exoneration of accused named in the FIR and further be pleased to direct investigation of FIR being I-CR No.239/2014 registered with City 'B' Division Police Station, Jamnagar be carried out by any other independent investigating agency unconnected with the present investigating agency;
(c) Pending admission, hearing and final disposal of the present petition, be pleased to stay execution, implementation and operation of the reports at Annexure-B insofar as the same relates to exoneration of the accused named/mentioned in the FIR;
(d) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court."
3. It appears from the materials on record that the Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Jan 23 01:54:11 IST 2016 R/SCR.A/6441/2015 ORDER petitioner herein in his capacity as Managar of a Company running in the name of I.K.F. Finance Company filed an FIR being I- C.R. No. 239 of 2014 with the City 'B' Division Police Station, Jamnagar. The FIR was filed for the offence punishable under Sections 406, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code.
4. In the said FIR, few persons were named as accused. It also appears that few of the persons named in the FIR were not arrested and were shown in column No.2 of the charge-sheet. Column No.2 of the charge-sheet speaks of either the accused persons being absconding or not sent to trial. The main grievance of the petitioner herein is that the original accused Nos. 4, 5, 6, 7, 9 and 10 have been exonerated and proceedings against those persons have been dropped without submitting any appropriate report in that regard.
5. Mr. Virap Popat, the learned counsel appearing for the petitioner submitted that at the end of the investigation it is always open for the Investigating Officer to reach to a conclusion that a particular person named in the FIR is not involved in any manner and is not to be charge-sheeted but for that he has to file an appropriate report under Section 169 of the Cr.P.C. He submitted that without following any such procedure of law, those persons have been exonerated and have not been charge- sheeted. Mr. Popat has placed reliance on two orders Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Jan 23 01:54:11 IST 2016 R/SCR.A/6441/2015 ORDER passed by a learned Single Judge of this Court, in the case of Balram Bharatbhai Padhiyar Vs. State of Gujarat in Special Criminal Application No.1770 of 2011, decided on 3rd February, 2012 and second, Raimal Mashrubhai Rabari Vs. State of Gujarat, in Special Criminal Application No.3497 of 2013, decided on 6th December, 2013. In Balram Bharatbhai Padhiyar (Supra), a learned Single Judge observed as under:-
"11. 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.
12. 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.
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R/SCR.A/6441/2015 ORDER
13. 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.
14. 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.
15. 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."
6. In Ramimal Mashrubhai Rabari (supra) a learned Single Judge observed in paras 4 to 9 as under:-
"4. Undisputedly, no procedure under Section 157 of Cr.P.C. was resorted to. For convenience, the provision is quoted hereunder:
157. Procedure for investigation.- (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that-
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;Page 4 of 7
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(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.
[Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station, shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government the fact that he will not investigate the case or cause it to be investigated.
5. Thus, the Investigator is under the obligation to inform the informant about his opinion of not investigating the matter against the persons complaint. Even under Section 173(2)(ii) of Cr.P.C., obligation has been imposed upon the Investigator to inform the action taken on the FIR to the informant. These safeguards are incorporated in law to enable the informant to register this protest if not satisfied with the police action.
6. The learned counsel for the petitioner submitted that the petitioner being injured eye-witness, specifically named accused Nos.1, 3 and 4 as his assailants, but for the reason best known to the Investigator, initially no action was taken against them and subsequently, at the time of filing of the chargesheet, they were shown as witnesses rather than accused persons. It is argued that such a course of action would not only demolish the petitioners case, but will also deprive the petitioner to agitate such an action before the Competent Court.
7. This Court in Special Criminal Application No.1770 of 2011 was confronted with the similar situation and after elaborately dealing with the facts of that case, the Court issued following directions:
14. 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.
15. It is hereby further directed that further investigation and future course of action as directed, which is required to Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Jan 23 01:54:11 IST 2016 R/SCR.A/6441/2015 ORDER 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.
8. In view of the aforesaid decision as also the legal position contemplated in Section 157 of Cr.P.C. as also Rameshbhai Vohra Vs. State of Gujarat (2010 (2) G.L.H. 588), similar directions as contained in Paragraphs-14 and 15 quoted hereinabove are issued in respect of accused nos.1, 3 and 4. Rule is made absolute accordingly with no order as to costs.
9. Very serious allegations have been made by the petitioner against Investigator. It is pointed out that while the complaint against the employer of the petitioner filed by those accused in the present case is being taken seriously by the Investigator, no weightage is given to the FIR lodged by the petitioner for the reasons best known to the Investigator. It is desirable that Dy.S.P. personally supervises the matter and deputes any other Investigator in place of present one for the purpose of complying with directions as above. Direct Service is permitted."
7. I am of the view that the issue raised by the learned counsel appearing for the applicant is squarely covered by the afore-noted two orders passed by this Court. I propose to follow the very same principle.
8. In the result, this application is allowed. The Investigating Officer shall undertake the investigation as regards the original accused Nos. 4, 5, 6, 7, 9 and 10 are concerned, and at the end of the investigation, he shall file a supplementary charge-sheet/appropriate report qua them within a period of two months from the date of the receipt of the order.
9. With the above, this application is disposed of. Direct service is permitted.
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