DHARMENDRA KISHORBHAI VIRANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Article 226 of the Constitution of India, the petitioner original complainant has prayed for an appropriate writ, direction and/or order directing the respondent No.3 District Superintendent of Police, Rajkot District to conduct fresh investigation in connection with I CR No.41 of 2006 registered at Lodhika Police Station. It is also further prayed for an appropriate writ, direction and/or order quashing and setting aside the order of the learned Additional Sessions Judge & Presiding Officer, Fast Track Court, Gondal passed below Exh.15 dated 3.7.2007 passed in Sessions Case No.7 of 2007 and to send the case back to the learned JMFC, Gondal for fresh report.

(2.) On 10th April, 2006, the petitioner filed a complaint / FIR against three accused viz. Nilesh Chauhan, Subhash Savaliya and Deven Marvadi at Lodhika Police Station being I CR No.41 of 2006 for the offences punishable under sections 306 and 114 of the Indian Penal Code alleging inter alia that his father was compelled to commit suicide by the accused persons. That pursuant to the said complaint, charge-sheet came to be filed by the Investigating Agency on 18.11.2006 only against one Nilesh Chauhan and other two accused were not charge-sheeted. The said charge-sheet came to be accepted by the learned JMFC and thereafter, the case was committed to the learned Sessions Court. It is the case on behalf of the petitioner original complainant that there is a suicide-note of the deceased wherein names and roles of the aforesaid three accused persons are mentioned. It is the case on behalf of the petitioner that the learned Sessions Judge summoned the complainant and witnesses for evidence on 30.4.2007 and after service of the summons, the petitioner came to know after verifying the case papers of the Court that other two accused i.e. Subhas Savaliya and Deven Marvadi are not made accused in the said case and they are not charge-sheeted and the same is done without filing any summary report known as A or B or C report. That the petitioner preferred an application under section 173(8) of the Criminal Procedure Code at Exh.15 before the learned Additional Sessions Judge, Gondal and the same came to be rejected vide order dated 3.7.2007. As the other two co-accused i.e. Subhash Savaliya and Deven Marvadi are dropped and/or not charge-sheeted without filing any summary report according to the petitioner there is no proper investigation carried out and they are dropped and therefore, it is requested for an appropriate order directing the respondent No.3 District Superintendent of Police, District Rajkot to further investigate the FIR / complaint being I CR No.41 of 2006. It is also submitted that even the order passed by the learned Additional Sessions Judge rejecting the application for further investigation under section 173(8) of the Criminal Procedure Code is also errorneous and illegal. Being aggrieved and dissatisfied with the order passed by the learned Additional Sessions Judge passed below Exh.15 in rejecting the application of the petitioner for further investigation under section 173(8) of the Criminal Procedure Code, petitioner has preferred present petition for an appropriate order directing the respondent No. 3 - District Superintendent of Police, Rajkot District to investigate further in the complaint, the petitioner preferred present petition.

(3.) Shri T.L.Sheth, learned advocate appearing for the petitioner has vehemently submitted that the complaint was filed against three accused persons and even the names of all the three accused are there in the suicide note of the deceased, despite that only one accused is charge-sheeted and other co-accused are deopped / not charge-sheeted without submitting any summary report qua other two accused. It is submitted that the learned JMFC has committed grave error by accepting the charge-sheet only against one accused i.e. Nilesh Chauhan and has failed to appreciate that no summary report has been filed by the Investigating Agency against other two accused persons and the learned JMFC has accepted the charge-sheet mechanically. It is submitted that no opportunity of hearing has been given by the learned JMFC before accepting the charge-sheet against only one accused Nilesh Chauhan. It is submitted that names and roles of all the three accused persons are clearly mentioned in the suicide note of the deceased and the suicide note itself is sufficient evidence for convicting the accused. It is submitted that other two co-accused Subhash Savaliya and Devan Marvadi are dropped by the Investigating Officer with a malafide intention as they are having relations with the politicians and are very influential persons. It is submitted that therefore, the District Superintendent of Police should hold further inquiry and further investigate into the matter and when considering the above, application was given before the learned Additional Sessions Judge for further investigation under section 173(8) of the Criminal Procedure Code, the learned Additional Sessions Judge has materially erred in rejecting the said application mainly on the ground that it is given at belated stage. It is submitted by him that even the application for further investigation under section 173(8) of the Criminal Procedure Code can be considered and granted at any stage of the trial to do the substantial justice. Shri Sheth, learned advocate appearing for the petitioner has heavily relied upon the decision of the Division Bench of this Court in case of Adesing Bavabhai & Others V/s. State of Gujarat reported in 1967 GLR 350 in support of his submission that the accused persons cannot be dropped without submitting the report as required under section 169 of the Criminal Procedure Code and therefore, it is requested to allow the present petition and grant the reliefs as prayed for.