LAWS(GJH)-2007-10-41

LAKHUBHAI AAPABHAI KHACHAR Vs. SATE OF GUJARAT

Decided On October 19, 2007
LAKHUBHAI AAPABHAI KHACHAR Appellant
V/S
STATE OF GUJARAT Respondents

JUDGEMENT

(1.) PRESENT petition is filed by the petitioners - original accused Nos. 1 and 3 under Articles 226 and 227 of the constitution of India for an appropriate order to quash and set aside the order dated 15. 06. 2007 passed by the learned Additional sessions Judge, 4th Fast Track Court, bhavnagar, Camp- Botad, allowing Exh. 14 application and ordering further investigation of Sessions Case No. 222 of 2006 by C. I. D. , crime Branch of Bhavnagar District.

(2.) THE petitioners and another are charge-sheeted for the offence under Section 302 read with Section 34 of the Indian Penal code, Section 135 of the Bombay Police Act and Section 25 (1) of the Arms Act for the offence alleged to have happened on 15. 05. 2006. Said complaint was registered as fir being C. R. No. I-30 of 2006 with Paliyad police Station. The said complaint was investigated by the Police Officer of said police Station and charge-sheet came to be filed by the concerned Investigating Officer. That thereafter, the case was committed to the learned Sessions Judge, Bhavnagar, and it was numbered as Sessions Case No. 222 of 2006. That thereafter, the complainant submitted application below Exh. 14 in the said Sessions Case for further investigation by the independent agency like C. I. D. Crime apprehending that the concerned investigating Officer has not investigated the crime in fair manner and that investigation has been conducted so as to help the accused persons. It was submitted that concerned investigating Officer helped the accused persons while recovering 'dhariya' which was used in committing offence. Similarly, he has even not send weapons /'dhariya' which used in committing the offence to the F. S. L. and even there is further irregularities and/or concerned Investigating Officer has acted in doubtful manner and impartial manner in sending Muddamal and blood sample to the f. S. L. and that concerned Investigating officer has not even thoroughly investigated the crime. Therefore, it was requested for further investigation under Section 173 (8) of the Criminal Procedure Code ('cr. P. C. ' for short)by further directing CID, Crime to further investigate the crime. Learned Public prosecutor supported the application and he also submitted that independent investigation is also required. Even learned Public prosecutor was of the opinion that concerned investigating Officer has not independently and fairly investigated the case and on going through the police papers it appears that investigation has been carried and charge-sheet has been filed with a view to help accused persons. He has further submitted that on the basis of the same if the trial is proceeded further same will not be justifiable and/or in the interest of justice. The application was opposed by the learned Advocate appearing on behalf of the accused persons by submitting that the application for further investigation under section 173 (8) of the Cr. P. C. at the instance of the complainant is not maintainable and that even once cognizance is taken by the learned Magistrate and/or the Court, even the application for further investigation / re-investigation under Section 173 (8) of the cr. P. C. is not maintainable. That the learned additional Sessions Judge, 4th Fast Track court, Bhavnagar, Camp - Botad by his impugned order dated 15. 06,2007 allowed the said application Exh. 14 and directed CID, crime Branch, Bhavnagar District to investigate the case under Section 173 (8) of the Cr. P. C. and to submit the report and; that after receipt of the said report further proceedings of Sessions Case would be proceeded further. Being aggrieved and dissatisfied with the order dated 15. 06. 2007 passed below Exh. 14 in allowing the application of the complainant for further investigation under Section 173 (8) of the cr. P. C. , the petitioners - original accused nos. 1 and 3 have preferred the present petition under Articles 226 and 227 of the Constitution of India.

(3.) MR. BHARDA, learned Advocate appearing on behalf of the petitioners -original accused has vehemently submitted that impugned order passed by the learned trial Court in allowing application Exh. 14 and ordering further investigation under Section 173 (8) of the Cr. P. C. is absolutely illegal and contrary to the provisions of the Cr. P. C. It is submitted that the learned trial Judge has grossly erred in entertaining the application for further investigation filed by the complainant at a belated stage and practically after one year of registration of the alleged offence. It is submitted that such an application at the behest of the complainant is not maintainable as under Section 173 (8)of the Cr. P. C. , it is the Investigating Officer who is vested with power and/or authority to pray for further investigation. It is also submitted by Mr. Bharda, learned Advocate that once final report made by the concerned investigating Officer is already filed and accepted by the learned Magistrate in form of charge-sheet, order of further investigation could not have been passed by the learned Judge. Mr. Bharda, learned advocate has relied upon the decision of the learned Single Judge of this Court in the case of MITESHKUMAR RAMESHBHAI patel and ANR. V/s. STATE OF GUJARAT and ANR. REPORTED IN 2006 (3) GLR 1935, in support of his submission that the Court cannot, after cognizance is taken, direct further investigation by police. Under the circumstances, it is submitted that the order passed by the learned trial Court is without jurisdiction and same requires to be quashed and set aside.