Gujarat High Court
Rameshbhai Khodabhai Rabari vs State Of Gujarat on 16 February, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/SCR.A/3032/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO.3032 of 2014
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RAMESHBHAI KHODABHAI RABARI....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1
MS.MAITHILI MEHTA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 16/02/2015
ORAL ORDER
1. RULE. Learned APP Ms.Maithili Mehta waives service of notice of Rule for the respondentState of Gujarat.
2. With the consent of learned advocates for the parties, present petition is taken up for final disposal.
3. Heard learned advocate Shri Apurva Jani for learned advocate Shri Ashish M. Dagli for the petitioner. Learned advocate for the petitioner submitted that petitioner is the original complainant, who has filed a complaint being C.R.NO.I37/2010 before Vankaner Police Station for the offenses punishable under Section 302 of the Indian Penal Code. Page 1 of 9
R/SCR.A/3032/2014 ORDER The FIR was registered against one Trambakbhai Patel and his associates and other four to five unknown persons. Learned advocate from the record submitted that even prior to the registration of the offenses, attempt was made to commit offense of murder and loot by the said accused, for which a representation was made before the concerned police authorities and the Collector. The offense was registered thereafter on 09.07.2010 under Sections 302, 143, 147, 148, 149, 504 and 506(2) of the Indian Penal Code. After the registration of the said FIR, the concerned Investigating Officer started the investigation. However, from the inception, the grievance was voiced by the petitioner about the manner in which the investigation was carried out by the police agency. It was alleged that the Investigating Officer was giving favour to the accused and deliberately not carrying out the investigation in correct direction. The statements given by the petitioner and the witnesses were also molded by the Investigating Officer and therefore, representation was made on 12.08.2010. Petitioner also preferred Special Criminal Application No.1592 of 2010 before this Court and this Page 2 of 9 R/SCR.A/3032/2014 ORDER Court by an order dated 25.08.2010 disposed of the said petition, whereby, the direction was issued to the Investigating Agency that the investigation may be supervised by the Deputy Superintendent of Police, Rajkot. Learned advocate further submitted that though this Court had given the direction to carry out the investigation and supervised by Deputy Superintendent of Police, the concerned Investigating Officer has tried to provide shield to the accused. The complainant and the witnesses were asked to sit in the police station for the entire day. No statements were recorded. Petitioner therefore submitted detailed representation before the District Superintendent of Police on 11.10.2010. Learned advocate from the record further pointed out that the statements of the witnesses were also recorded and the grievances of the petitioner was also made before the District Superintendent of Police on 17.09.2010. Petitioner was constrained to prefer Criminal Misc. Application No. 13229 of 2010 in Special Criminal Application No. 1592 of 2010 before this Court, wherein, the petitioner prayed that the investigation be transferred to any independent agency. The said Page 3 of 9 R/SCR.A/3032/2014 ORDER application was disposed of by this Court by an order dated 24.11.2010, in which, this Court observed that if upon completion of further investigation, the petitioner has any grievance, it will be open for him to raise the same in accordance with law. Learned advocate further submitted that the application under Section 173(8) of the Code of Criminal Procedure, 1973 was also given on 09.10.2010. The further investigation was carried out and thereafter the charge was framed against the concerned accused. During the pendency of aforesaid Sessions Case No.12 of 2011, now the complainant in the aforesaid background gave an application on 15.03.2014 through Special Public Prosecutor, Exh.87. In the said application, the petitioner complainant pointed out that the different police officers have carried out the investigation in pursuance to the different applications/representation made by the petitioner and therefore, now the Investigating Officer is required to be examined in the aforesaid case and therefore, the concerned Investigating Officer be directed to produce the investigation carried out by him in pursuance to the applications given by the petitioner Page 4 of 9 R/SCR.A/3032/2014 ORDER as well as the order passed by this Court. Learned advocate for the petitioner submitted that the aforesaid material is not produced by the Investigating Officer alongwith the chargesheet papers. However, the aforesaid documents are required for deciding the case and therefore the petitioner requested that the Investigating Officer and Ashokbhai Maisurbhai be called as witnesses alongwith the documents i.e. the papers of investigation carried out by the concerned officers in pursuance to the application/representation made by the petitioner as well as in pursuance to the order passed by this Court. The petitioner prayed before the learned Trial Court that the powers be exercised under Section 311 of the Code of Criminal Procedure, 1973 in the interest of justice. Learned advocate further submitted that by way of the impugned order, the learned Trial Court has dismissed the said application Exh.87 and therefore, this petition is filed before this Court mainly on the ground that the learned Trial Court has failed to appreciate the facts and circumstances of the present case. The said order is also challenged on the ground that the learned Trial Page 5 of 9 R/SCR.A/3032/2014 ORDER Court has wrongly observed that the petitioner complainant has not given any application, complaining about carrying out the investigation by the Investigating Officer in proper direction. Learned advocate further submitted that under Section 311 of the Code, the Trial Court is having power to call the witnesses for the just decision in the matter. However, looking to the facts and circumstances of the case, the learned Trial Court has wrongly refused to exercise such powers and therefore, impugned order be quashed and set aside. Learned advocate further submitted that before Registration of the FIR, the grievance was made before the officer. Even after the registration of the FIR, the petitioner was compelled to file different applications/representations from time to time before the Investigating Officer, complaining about improper investigation. Learned advocate for the petitioner further pointed out that two petitions were filed before this Court and though, directions were given to the officers to carry out the investigation, supervised by the Deputy Superintendent of Police, proper steps were not taken by the said officers and therefore, now when the Investigating Page 6 of 9 R/SCR.A/3032/2014 ORDER Officer is required to be examined as a witness of the prosecution, the application Exh.87 given by the petitioner is required to be allowed and therefore, this Court may quash and set aside the impugned order and direct the learned Trial Court to examine the aforesaid witnesses and direct the said witnesses to produce on record the material collected by them during the course of investigation, which is not produced alongwith the said chargesheet papers.
4. On the other hand, learned APP Ms.Mehta submitted that petitionercomplainant has given application through Special Public Prosecutor and therefore, in the facts and circumstances of the present case, this Court may pass appropriate order.
5. I have heard arguments canvassed on behalf of learned advocates for the parties. I have also gone through the documents produced on record. From the documents, it appears that the petitioner has given various applications from time to time before the police authorities for proper investigation. However, the investigation was not carried out by the Investigating Officer in proper direction and Page 7 of 9 R/SCR.A/3032/2014 ORDER therefore, petition was filed before this Court. The same was disposed of by an order dated 25.04.2008, wherein, this Court gave direction to the Deputy Superintendent of Police to supervise the investigation and thereafter the concerned police authority has not carried out the investigation in proper direction and therefore, once again applications were submitted before the authorities. Thereafter, Criminal Misc. Application No.13229 of 2010 was preferred before this Court. Said application was also disposed of vide order dated 24.11.2010, whereby, once again, Deputy Superintendent of Police was directed to carry out the further investigation and the liberty was given to the petitioner to raise the grievances in accordance with law. Now, during the course of Trial, it is found that the Investigating Officer has not produced all the papers of investigation carried out by him in pursuance to the orders passed by this Court as well as, as per the applications given by the petitioner. The said documents are required to be brought on record and therefore, petitioner wants to examine the Investigating Officer and one Ashokbhai Maisurbhai. Page 8 of 9
R/SCR.A/3032/2014 ORDER Thus, in the interest of justice and for just decision of the case, the aforesaid witnesses are required to be examined. However, the learned Trial Court has failed to exercise powers given to it under Section 311 of the Code of Criminal Procedure, 1973 and therefore, the impugned order passed by the learned Trial Court is hereby quashed and set aside. The learned Trial Court is hereby directed to allow the application Exh.87 and thereafter, witness summons be issued by the Trial Court to the concerned Investigating Officer and Ashokbhai Maisurbhai and said officer shall remain present with necessary documents. The aforesaid exercise is to be completed within a period of four weeks from the date of receipt of this order as the accused are in jail since last more than four years.
6. With these observations and directions, petition is allowed. Rule is made absolute.
(VIPUL M. PANCHOLI, J.) ANKIT Page 9 of 9