MAHESHBHAI HIMMATGIRI GOSWAMI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE . Shri A.J.Desai, learned APP wavies service of rule on behalf of the State.

(2.) THIS is an application preferred under Section 438 of Cr.P.C. in connection with the FIR bearing C.R.No.I -69 of 2007 registered at Radhanpur Police Station for the offences punishable under Sections 465, 467, 471, 120 -B and 114 of the Indian Penal Code. The learned advocate for the petitioners submitted that the petitioners are the Government Servants and the complainant is running Naimishh Gas Agency at Radhanpur. On 19.5.2007, an investigation was carried out by the District Supply Officer and his team and 64 statements of consumers were recorded by them. Out of the 64 statements, one statement which was recorded was of dead person and one statement of Faiz Mohmmad was recorded wherein one line was added. It is alleged that with a view to cancel the license, false record was created and thereby, District Supply Officer and the petitioners i.e. Mamlatdar and DSO have committed an offence punishable under Sections 465, 467, 471, 120 -B and 114 of the Indian Penal Code.

(3.) THE learned advocate further submitted that the petitioners are innocent persons and they have not committed any offence alleged against them in the complaint and wrongly roped in. The petitioners even have not abetted or committed any offence in any manner whatsoever as alleged in the FIR. It is submitted that considering Section 15 of the Essential Commodities Act, it is clear that since the petitioners are public servants, they recorded the statements of the consumers while discharging their duties and therefore, no prosecution or legal proceedings would lie against them. It is also submitted that even on earlier occasion when the compliant was filed before the Radhanpur Police Station, investigation was carried out and thereafter, DSP, Patan came to the conclusion that no offence was made out and only departmental inquiry was carried out. Thereafter, the FIR was registered on 1.5.2007 and investigation was carried out by Dy.S.P., Patan. It is submitted that no evidence was collected by the prosecution about the criminal intention on part of the petitioners to record the statement of the dead person. The learned advocate submitted that the offence punishable under Sections 465 and 471 of IPC are bailable offence and prima -facie no ingredients of Section 467 are made out and therefore, it is a fit case to exercise discretion in favour of the petitioners.