GOVINDBHAI KAVABHAI MARU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of preferring present petition under Articles 226 and 227 of the Constitution of India read with Sec. 482 of the Criminal Procedure Code, 1973, (hereinafter be referred to as the 'Code' for short) the petitioner has prayed to quash and set aside the order dtd. 30/1/2018 passed in Criminal Revision Application No.8 of 2017 by the learned 6 th Additional Sessions Judge, Bardoli and thereby directed the concerned Investigating Officer to carry out further investigation under Sec. 173(8) of the Code as sought for by the petitioner.

(2.) Heard learned advocate Mr. Tulshi R. Savani for the petitioner and learned APP Mr. Dhawan Jayswal for the respondent - State.

(3.) Learned advocate Mr. Savani submits that if this Hon'ble Court would go through the factual aspects of the matter, in that event, it would be found out that there is checkered history in the present matter. Learned advocate Mr. Savani submits that the petitioner herein is the original complainant and he has preferred an application in the form of complaint under Sec. 154 of the Code, however, for the reasons best known to the investigating officer, he has not registered the FIR against the accused persons. Therefore, the petitioner has no other option left but to approach to the concerned Judicial Magistrate First Class, Bardoli by way of preferring private complaint under Sec. 156(3) of the Code. Hence, he has engaged an advocate and registered private complaint before the competent Court. Learned advocate Mr. Savani further submits that the petitioner - original complainant came with a specific case that accused persons have created forged and fabricated documents and on the strength of the said documents they have cheated the complainant and therefore for the purpose of collecting the material against the accused persons, interference of the police is needed. Learned advocate Mr. Savani submits that after considering and appreciating the material available on record, the learned Judicial Magistrate First Class, Palsana has partly considered the prayer made in the complaint filed under Sec. 156(3) of the Code and directed the concerned Police Officer to register complaint under Sec. 406 IPC. On the strength of the order passed by the learned Judicial Magistrate First Class, Palsana, M Case No.2 of 2012 came to be registered by the concerned police officer. During the pendency of the investigation, the petitioner came to know that investigating officer has not carried out the investigation in its proper manner and tried to favour the accused persons and created pressure upon the petitioner to settle the dispute with the accused persons. Therefore, petitioner - original complainant has preferred an application on 15/1/2013 to the DSP, Surat with a sole intent to transfer the investigation. It is found out from the record that no heed was paid to the request made by the complainant and investigation was continued with the said police officer and ultimately at the end of the day, the said police officer has filed 'B' summary report before the competent Court. Thereafter, a notice was issued by the learned Court which was duly served to the petitioner and therefore he appeared before the concerned Court through advocate and raised objections about the maintainability of the 'B' summary report filed by the investigating officer. Learned advocate Mr. Savani further submits that petitioner has also preferred an application under Sec. 173(8) of the Code and prayed that further investigation is required to be carried out. The petitioner came with a specific case that from very inception, he was of the opinion that the concerned police officer has not carried out investigation in proper manner and the investigating officer is biased one and always favouring the accused persons and that is why he had submitted an application to the DSP, Surat for transfer of the investigation. Therefore, further investigation is required to be carried out and the said 'B' Summary Report is not required to be accepted and further investigation is to be entrusted to neutral police officer. After considering and appreciating the material available on record as well as arguments canvassed by learned advocates of the rival parties, the learned Judicial Magistrate First Class, Palsana thought it fit to issue process against the accused under Sec. 204 of the Code for the offence punishable under Ss. 406 and 114 of the IPC and by passing the said order, the learned JMFC rejected the 'B' Summary Report submitted by the investigating officer concerned.