JAGDISH NATHABHAI SOLANKI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under article 226 of the Constitution of India read with Section 482 of the Criminal Procedure code, the petitioner - original complainant has prayed for an appropriate Writ, direction and/or order quashing and setting aside the report dated 27. 05. 2006 of respondent No. 3 filed before the learned J. M. F. C. , Kathor. It is also further prayed to transfer the investigation of the complaint being C. R. No. I-85 of 2006 registered with Kamrej Police station to the CID Crime or any other independent agency.

(2.) THE facts leading to the present special Criminal Application and as per the petitioner are as under: the petitioner- original complainant approached Kamrej Police Station disclosing cognizable offences committed by respondent nos. 4 to 8 herein for the offences punishable under Sections 465, 467, 471, 469, 114 of the Indian Penal Code and section 3 (1) (5) of the Scheduled Castes and scheduled Tribes (Prevention of Atrocities)Act. However, due to influence of respondent No. 4 and other accused, the police Authorities in total violation of provisions of Section 154 (1) of the Cr. P. C. , did not register the complaint and therefore, on 28. 03. 2006, the petitioner sent the substance of the information to respondent no. 2 as required under Section 154 (3) of the Cr. P. C. Respondent No. 2 vide communication dated 04. 04. 2006 directed kamrej Police Station to take appropriate action in the complaint made by the petitioner but the Kamrej Police Station did not register the offences and did not initiate investigation. That on 17. 04. 2006 the petitioner filed Special Criminal Application no. 685 of 2006 before this Court praying for issuance of direction to the police authority to register the complaint and initiate the investigation. That during the pendency of the said proceedings, Kamrej police Station registered the complaint being C. R. No. I-85 of 2006 on 29. 04. 2006 against respondent Nos. 4 to 8 for the offences alleged against them inclusive of the offence under Section 3 (1) (5) of the atrocities Act. It is the case on behalf of the petitioner that it was assured that proper investigation will be carried out by the authority. That said Special Criminal application came to be disposed of vide order dated 02. 05. 2006. The investigation was transferred to respondent No. 3 as the offence alleged was under the provisions of the Atrocities Act. That the petitioner preferred another petition being Special criminal Application No. 1047 of 2006 directing the Investigating Officer to carry out the investigation forthwith and said special Criminal Application came to be disposed of by the learned Single Judge of this Court vide order dated 23. 06. 2006 directing the Investigating Officer to carry out the investigation forthwith according to law and by reserving liberty to approach this court. It appears that in the meantime respondent No. 3 submitted report dated 27. 05. 2006 to the learned J. M. F. C. , Kathor stating that no offence under the provisions of Atrocities Act have been committed by the accused persons and hence, Investigating authority be permitted to delete the provisions of Section 3 (l) (5)of the Atrocities act from the complaint. It appears that the learned J. M. F. C. , Kathor passed an order on the very day 'kept with F. I. R. '. It is the case on behalf of the petitioner that at the time when Special Criminal Application no. 1047 of 2006 was filed by the petitioner, the petitioner was not aware of filing of report dated 27. 05. 2006 nor it was pointed out before this Court on behalf of the investigating Officer with regard to submitting report dated 27. 05. 2006. Being aggrieved and dissatisfied with the report dated 27. 05. 2006 requesting to delete section 3 (1) (5) of the Atrocities Act from the f. I. R. , the petitioner - original complainant has preferred the present petition under article 226 of the Constitution of India read with Section 482 of the Cr. P. C. for the aforesaid reliefs.

(3.) MR. MEHUL Rathod, learned advocate appearing on behalf of the petitioner has relied upon the decision of the Division Bench of this Court in the case of ADESING BAVABHAI AND ORS. V/s. THE STATE OF GUJARAT REPORTED IN viii (GLR) 350 and has vehemently submitted that in the instant case the investigating Officer has overlooked the provisions of Section 173 of the Cr. P. C. and also disregarded the provisions of police manual in as much as no report asking for particular type of summary deleting Section 3 (1) (5) of the Atrocities Act has been filed by the Investigating Officer. It is submitted that as held by the Division Bench of this court even the Magistrate is not bound to accept the opinion of the Police Officer regarding the non-commission of the offence by the accused and it is open for the magistrate to take cognizance of the offence himself under Section 190 or call for further report from the Investigating Officer and the final words vests not with the investigating Officer but with the magistrate. It is also further submitted that if the Investigating Officer is of the opinion that no case is made out against the accused under Section 3 (1) (5) of the atrocities Act, in that case, it was incumbent on the part of the Investigating officer to submit an appropriate Summary report and copy of which is required to be given to the complainant and even at that stage the complainant can make his submission against the said report and can request the learned Magistrate not to accept the said report. It is submitted that in the present case, such procedure has not been adopted by the Investigating Officer and straightway the report has been submitted to delete Section 3 (1) (5) of the atrocities Act and unfortunately the learned magistrate has also not exercised powers vested with him and passed an order of keeping the said report with F. I. R. , which is contrary to the decision of the Division bench of this Court. Under the circumstances, it is requested to allow the present application and grant the reliefs as prayed for by making further request to transfer the investigation of the said case to the CID Crime and/or any other independent agency.