KALUBHAI HIRABHAI MALIWAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS matter comes up before this Court by special order of Hon'ble the Chief Justice. After the first order dated 05.06.2009 issuing notice to the respondents, learned Senior Advocate Mr. K.G. Menon, appearing for Respondent No. 2, objected on the returnable date (16.6.2009) to the grant of long adjournment. However, considering the fact that it was the first returnable date and no interim relief was granted, the matter was ordered to be listed for hearing on 06.07.2009 in the first board with clear order that the Court would proceed with the hearing and no adjournment shall be granted. Thereafter, by an administrative order dated 06.07.2009, the matter is placed before this Court and heard in extenso for final disposal with the consent of learned Counsel appearing for the parties.

(2.) THE petitioner has invoked Articles 215 and 226 of the Constitution as well as the inherent jurisdiction of this Court under Section 482 of Cr.P.C. for restraining the Special Investigation Team (hereinafter referred as "SIT"), constituted by the Hon'ble Supreme Court, from investigating any offence alleged in the complaint dated 08.06.2006 of Respondent No. 3, in purported exercise of authority conferred upon the SIT under the order dated 27.4.2009 of the Supreme Court in Special Leave to Appeal (Cri.) No. 1088 of 2008 [for short "SLA (Cri.) No. 1088 of 2008"]. The petitioner is one of the 62 persons accused of various offences in the aforesaid complaint dated 08.06.2006.

(3.) THE short issue sought to be raised by the petitioner in the present proceeding is as to whether the SIT is authorized to investigate any offence alleged in the complaint dated 08.06.2006. It is the case of the petitioner that in another related proceeding, being Writ Petition (Cri.) 109 of 2003 filed by National Human Rights Commission against the State of Gujarat and others, the Supreme Court was pleased, by its order dated 26.3.2003, to constitute the SIT and specific directions were issued to it to continue investigation and conduct further investigation into the specific cases described in the order itself. Pursuant to that direction, the SIT has conducted further investigation into the offences alleged in C.R.No.67 of 2002 and has filed its report before the Supreme Court, but the petitioner is unable to get a copy thereof as it is placed in a sealed cover. Therefore, a request is thrice made in the petition to call for and examine that report from the SIT. It is contended that, after filing of the said report, the Hon'ble Supreme Court has issued further directions on 01.05.2009. Thus the very same incident, which is made out to be the basis of the belated complaint dated 08.6.2006, is already investigated by the SIT and any further investigation would be permissible only in accordance with Section 173 (8) of Cr.P.C. Since the prayer for quashing the complaint dated 08.6.2006 is expressly not pressed by learned Senior Advocate Mr. Vakil, the allegations contained in that complaint are not required to be stated and gone into. However, the petitioner has made the grievance that the SIT was proposing to investigate that complaint and would summon all the persons named therein. Relying upon newspaper reports, it is averred that the SIT has already taken a decision to act contrary to and beyond the scope of the provisions of Cr.P.C.