MUSTAKALI MAHMEDBHAI SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BEING aggrieved by the rejection of their application by order dated 15. 2. 2005 of the learned Additional Sessions Judge, Mehsana in Sessions Cases No. 77 of 2004 and 78 of 2004, the petitioners, original witnesses and aggrieved parties, have approached this court with a prayer to set aside that order and direct further investigation.

(2.) THE factual backdrop about which there is no controversy is that, on 28. 2. 2002, communal riots had spread to village Umta of Taluka Visnagar where the mob of about 1500 to 2000 persons had indulged in rioting and arson and the police was required to open fire. People belonging to one community had had to flee or had to be rescued even as their homes and valuable goods worth lakhs of rupees were burnt, destroyed or damaged and two members of that community were alleged to have been killed. Pursuant to the complaint being CR. No. I-61 of 2002 dated 1. 3. 2002 registered at the instance of Assistant Sub Inspector in Visnagar Police Station, investigation was carried out and charge sheets were submitted in the court, resulting into Sessions Case Nos. 77 of 2004 and 78 of 2004 wherein 37 and 76 persons were accused of different offences including the offence under section 147, 148 read with section 149, section 307, 302, 436, 427 and 337 read with section 147, section 201 read with section 149 and section 295 of Indian Penal Code, 1860 and both the cases were being tried together. After examination of no less than 36 witnesses, the petitioners herein submitted the application exh. 74, making the grievance, inter-alia, that the offences were not properly investigated, that several persons who were not living at the relevant time were shown as witnesses, that the dead bodies or the remains thereof were not discovered or recovered by the investigating agency and that the household goods and articles which were alleged to have been looted or damaged were not recovered and hence further investigation was required to be ordered. That application Exh. 74 was heard and decided on the same day by the handwritten order which is not fully legible and of which the typewritten copy annexed to the application is admittedly incorrect. However, as far as that impugned order could be deciphered, it appears that the learned Sessions Judge doubted the locus standi of the applicants and avoided detailed discussion of the evidence under the apprehension of affecting the plea or defence of any of the parties; but recorded the finding that there were lapses in the police investigation. The impugned order was concluded with the remarks that, since new construction had come up at the place and premises where the alleged offences were committed, there was no chance of collecting or tracing out any further material. The impugned order and reproduction thereof leaves a lot to be desired.

(3.) CHALLENGING the aforesaid order the petitioners have submitted in their petition that one Siphai Motekhan Misri Khan and Siphai Babbalkhan Dosabhai whose statements were recorded by police on 04. 04. 2002 were expired long back on 18. 01. 1989 and 23. 11. 1993 respectively and Siphai Adalkan Bastikhan, Shaikh Valimohmad Sultanbhai and Ismalbhai Kasambhai were also not surviving when their statements were supposed to have been recorded. It is averred that the investigating agency had not tried to recover remains of the deceased victims and no weapons were recovered from the accused persons. Similarly, the material looted by the accused persons on 28. 2. 2002 were also not recovered as muddamal articles and no police remand was sought by the investigating agency for that purpose. It was, on that basis, submitted that the application Exh. 74 was required to be allowed and further investigation was required to be carried out by an independent and competent officer.