CHANDAN PANALAL JAISWAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard ld. Counsel Mr. AD Shah for the petitioners and ld.PP Mr. AD Oza for the State.

(2.) Invoking jurisdiction of this Court under Article 226 R/w Article 21 of the Constitution of India, the petitioners -original accused of two difference offences registered as (i) I.CR No.2/2004 by Shahibagh Police Station, Ahmedabad and, (ii) I.CR No. 23/2004, by Naranpura Police Station, have prayed to handover the investigation of the said crime to respondent No.5 Central Bureau of Investigation, Gandhinagar, alleging that the investigating agency of both the crimes have failed in carrying out investigation objectively and some unfairness is also shown towards the accused persons during investigation, and collecting the evidence. It is further prayed that respondent No.5 CBI be directed to ascertain genuineness and authenticity about the plea of "alibi" raised by the petitioners accused from the beginning before the Investigating Officer and after carrying out the investigation into the said aspect and to submit is report to the concerned criminal court. Anticipating the favourable result, the petitioners have also prayed that they should be exonerated from both the alleged offences because they were neither present during the commission of the offence nor are involved in any of these two offences, and they have been falsely implicated.

(3.) The present petition was moved by the petitioners on 17.02.2004, prior to filing of chargesheet -report under Sec.173(2) of CrPC, but, I am told that before this Court could pass detailed order after hearing the parties on merits, in view of the strong resistance placed by the State even as to the admission of the petition, the ld. trial Judge after committal of the criminal case, has now framed the charge so far as Sessions Case No.240/2004 is concerned arising out of I.CR No. 23/2004 registered by Naranpura Police Station for the offences punishable under Sec.306 etc. of Indian Penal Code. In response to the facts placed by affidavit -in -reply filed by Mr. PN Barot, ACP, "F" Division of City of Ahmedabad dated 07.04.2005 and the documents attached in support of the affidavit, ld. Counsel Mr. AD Shah appearing for the petitioners has fairly accepted that the prayer as to handing over investigation to respondent No.5 CBI obviously may not be granted because the petitioners, at the time of hearing of the application preferred under Sec.227 of CrPC in connection with the crime i.e. I.CR No.23/2004, have not pressed the plea of "alibi" very seriously . It is contended that the offence in reference to the commission of suicide by the victim girl Bijal Joshi after certain days or hours of commission of alleged rape on her in Hotel Ashoka Palace and, when the petitioners were in custody, and, therefore, the question of plea of "alibi" would not be a sole governing factor for framing ofthe charge of suicide and, therefore, according to ld. Counsel Mr. AD Shah, the present petition be treated as a petition for one of the two offences and he has concentrated his arguments continuing prayer made in the petition qua the first offence i.e. I.CR No.2/2004 registered by Shahibagh Police Station for the offences punishable under sections 376, 324, 328, 323, 342, 114 of Indian Penal Code and Sec.66(1) and 85(1)(3) of Bombay Prohibition Act. The accused are facing trial of three different cases i.e. Sessions Case No. 239/2004, 240/2004 and 241/2004 and now since the accused have decided to face the charges in Sessions Case No. 240/2004, a submission made on behalf of the petitioners is that merely because they have accepted to face the charge for the offence punishable under Sec.306 etc. of IPC, it should not be even impliedly construed or interpreted that they had withdrawn their plea of "alibi" placed before the Investigating Agency and their request to grant appropriate relief from the Court. This submission is advanced in light of the averments made in affidavit -in -reply (para -7 page -81) of ACP Shri PN Barot.