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SCR.A/658/2011 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 658 of 2011
=========================================
NIRUPAM
JAGDISH GHODA - Applicant(s)
Versus
STATE
OF GUJARAT & 15 - Respondent(s)
=========================================
Appearance
:
PARTY-IN-PERSON
for Applicant(s) : 1,
MS
CM SHAH, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
None for
Respondent(s) : 2,6 - 7,9 - 16.
NOTICE SERVED BY DS for
Respondent(s) : 3 - 5, 8,
MR HS MUNSHAW for Respondent(s) : 4 -
5.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 20/04/2011
ORAL
ORDER
1. Heard
party-in-person. It is submitted by him that as per evidence of
Saberabibi before the learned JMFC, Kadi in Criminal Case No.1212 of
2003, she stated on oath that her marriage took place before 16 years
with Ahmedhussain Saiyed and out of said wedlock one child is also
born. It is further submitted that this fact is not considered by
Taluka Development Officer (T.D.O.) and District Development Officer
(D.D.O.) while deciding the case. It is further submitted that
statement of respondent no.14 herein is also not considered by T.D.O.
and D.D.O. though copy of statement was send to them.
2. It
is submitted by Mr.L.R.Poojari, learned APP on instructions that for
disqualifying respondent no.9 – Ahmedhussain Saiyed, present
applicant initiated proceedings by way of preferring application
before T.D.O. The said application was dismissed. Said order of
T.D.O. was challenged before D.D.O. After giving opportunity of
hearing parties, D.D.O. confirmed the order passed by the T.D.O. and
dismissed the appeal of the applicant.
3. It
is admitted fact that D.D.O. has come to specific conclusion that
Saberabibi admitted that Ahmedhussain Saiyed is not her husband and
no marriage took place between them and in past also one complaint
was lodged on the basis of instigation by other persons and in the
said case, Ahmedhussain was acquitted. After considering entire
evidence on record, T.D.O. and D.D.O. have passed order. Order
passed by D.D.O. is not challenged before the higher authority and
when it is not challenged, findings arrived by the D.D.O. remain in
existence and therefore, no criminal proceedings could be initiated
against respondent no.9.
4. Remedy
is available to the applicant to challenge the order passed by D.D.O.
before higher forum / authority and if applicant challenges the said
order and succeeds, then, criminal proceedings can be initiated
against present respondent no.9.
5. In
view of above, this petition is disposed of. If applicant challenges
the order passed by the D.D.O. before the higher authority, concerned
higher authority will decide the same in accordance with law and on
merits after giving opportunity of hearing to present applicant
without being influenced by the order passed by this Court.
[M.D.Shah,
J.]
satish
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