NAGJIBHAI DAHYABHAI DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Ms. Nandini Joshi waives formal service of notice of rule on behal of the respondent State. Petitioners are Original accused in Criminal Case No. 3805 of 2003 and they have challenged the legality and propriety of the order dated 20.10.2003 passed by learned Judicial Magistrate First Class, Deesa whereby he has taken cognizance of the offences punishable under Section 302, 34 and 112 of IPC.

(2.) According to the petitioners one FIR was lodged on 10.8.2003 in Deesa Rural Police Station by one Chamar Babubhai Cheharbhai and the said complaint was registered as CR No. I-179/2003 under Section 279, 304A of IPC and Section 174, 184 and 134 of the Motor Vehicles Act (hereinafter referred as MV Act). In the said complaint, petitioner No. 1 Nagjibhai Dahyabhai Desai was shown as accused. The said FIR is produced as Annexure-B and it is the case in the said FIR that the complainant's brother, the deceased had gone to grace his cattle at the outskirts of his village and the complainant had gone to give water to his brother. At the time when he was about to reach his brother, he saw that the petitioner No. 1 Nagjibhai Dahyabhai Desai had run down his brother with his tractor and trolly. Trolly was loaded with earth and because of the hit given by the vehicle and other injuries, his brother died on the spot. It is also alleged that after the incident, accused Nagjibhai Dahyabhai Desai ran away. Thereafter, complainant went to his home and ultimately, by taking his relatives with him he approached the police station and lodged the complaint. According to the complainant, the incident has occurred on 10.8.2003 at about 13:00 hours. According to the petitioners, the complainant filed another complaint before the District Superintendent of Police, Banaskantha on 11.8.2003 naming the petitioner No.2 and 3 and two other unknown persons in the offence and it is alleged in the second complaint that at the time when the complainant had gone to give water to his brother, accused were giving blows and inflicting injuries to his brother and his brother died because of the injuries caused by the accused persons. The allegation in the second complaint is that police was informed about the incident initially by the accused and, before the complainant could go to the police station and file his complaint, the police had arrived at the place of the offence and thereafter police had forcibly taken a wrong complaint and the FIR registered with Deesa Rural Police Station does not contain the true facts of the incident. On 1.9.2003, complainant made one another complaint to Dy.S.P. Banaskantha stating that Police is wrongfully acting under the influence of the sitting MLA of Deesa and Police is converting the case of murder into a case of accident. Serious complaints were made against the investigating Police Inspector. On 7.9.2003 the complainant sent one more application in the form of a complaint/grievance addressing to the Chief Minister with a copy to Dy. S.P. Banaskantha making further allegations against the panel of Doctors who performed the postmortem. It is the say of the petitioner that pursuant to the complaint made to the D.S.P. on 11.8.2003 the D.S.P. transferred the investigation of the incident from Police Inspector to Dy. S.P. The Dy. S.P. has verified the statement of witnesses and other persons recorded by Police Inspector and he further recorded the statements of witnesses. As the Dy. S.P. was satisfied that the incident was an accident and not offence of murder, he prepared the report accordingly and it was found during the investigation by Dy. S.P. Mr. Munia that at the relevant time, petitioner No.1 Nagjibhai Dahyabhai Desai was not driving the said tractor with a loaded trolly but the accident is caused because of the rash and negligent driving of petitioner No.4 Jakshi Raghunathbhai Harijan. Petitioner No.4, therefore, was arrested in pursuant to such finding and was subsequently released on bail by the police because, all offences being bailable offences. Dy. S.P. entrusted with the investigation by Dy. S.P. Banaskantha submitted his final report in the form of charge sheet to the Chief Judicial Magistrate, Deesa under Section 173(2) of Cr.P.C. for the offences punishable under Section 279, 304A of IPC and 117, 184 and 134 of Motor Vehicles Act against petitioner No.4 Jakshi Raghunathbhai Harijan. On the strength of this charge sheet submitted, learned Chief Judicial Magistrate took cognizance of the offences as mentioned in the charge sheet and issued summons to petitioner No.4 on 9.10.2003. Copy of the papers of investigation supplied to the accused along with the charge sheet are also available on record. A Criminal Case No. 3805 of 2003 has been registered on the day on which Court issued process on 9.10.2003. The said criminal case was transferred to learned JMFC Deesa and the petitioner No.4 then was directed to surrender himself to the police custody and applied for bail before the learned JMFC. The complainant filed detailed objections to the bail application and resisted against the report submitted by the police under Section 173(2) of Cr.P.C. and after hearing, the learned JMFC rejected the bail application preferred by petitioner No.4 Jakshi holding that looking to the police papers and the statements of witnesses recorded by investigating officer, judgement produced along with the charge sheet, the offence of 302 IPC appears to have been committed. Copy of the bail application and order rejecting it are on record vide Annexure-G. It is contended that accused No.4 feeling aggrieved by the decision rejecting the bail plea by the learned JMFC preferred bail application in the Court of Additional Sessions Judge, Banaskantha at Deesa. But, after considering the affidavit and other details brought before the learned Additional Sessions Judge, learned Additional Sessions Judge rejected the bail application preferred by petitioner No.4 Jakshi. According to the petitioners, on 21.10.2003 the complainant filed a written application in the Court of learned JMFC requesting him to take appropriate steps against the petitioners being accused persons in the crime. On 22.10.2003 the learned JMFC passed a detailed order that the complainant has filed a written application before him, it is not in the nature of complaint under Section 21(d) of Cr.P.C. and hence he is not considering the same as complaint. But, it is further held that he is proceeding on the police report submitted to him under Section 173(2) of Cr.P.C. and after referring certain judgements, cited before him, the learned JMFC passed an order not accepting the police report, as it is held that, from record it appears that prima facie an offence punishable under Section 302 IPC seems to have been committed and therefore, he is taking cognizance on the basis of Section 190 (1)(b) of Cr.P.C. of the offences punishable under Section 302, 34 and 114 of IPC and impleaded petitioner No.1, 2 & 3 as accused. The learned JMFC, after taking cognizance issued non-bailable warrant against the petitioner Nos. 1, 2 & 3. In the present revision application, the petitioners have challenged the order dated 22.10.2003 taking cognizance under Section 190(1)(b) for the offences punishable under Section 302, 34 and 114 of IPC on various ground mentioned in para 13 to 23 in the memo of revision application.

(3.) This revision application was listed for admission hearing on 3.11.2003 and while issuing notice, the petitioner Nos. 1, 2 & 3 have been granted interim protection and the execution of implementation of the order of trial Court issuing non-bailable warrant against the applicants has been placed under ad interim suspension. This petition was listed for admission hearing on 20.1.2004 and the papers of inquiry were called on that day. On 30.1.2004 when this revision application was listed for hearing, the Court, after some deliberations, was of the view that Dy.S.P.Shri Munia who has investigated the crime and charge sheeted the accused for negligent driving is required to be called with all papers of investigation related to very offence including application made before the Dy. S.P. on 11.8.2003 with other relevant papers.